
    Poehl v. The Cincinnati Traction Co.
    
      Negligence — Municipality and street railway not joint tortfeasors — Alighting passenger injured by stepping in hole in street — Judgments—Partial settlement with one tortfeasor cannot inure to benefit of another, when — Release of one tortfeasor discharges all — Questions for jury— Liability of street railway — Satisfaction of judgment with city, settlement in full — Evidence—Testimony as to settlement with municipality, admissible, when — Action against street railway lies, when — Burden of proving settlement not in full — Not contributory negligence for passenger to step in hole, when.
    
    1. City and street railway company, sued successively for injuries to passenger stepping from car into hole in street, held not joint tortfeasors, though torts were concurrent and related, city’s liability being based on failure to perform statutory duty to keep streets open, in repair, and free from nuisance, while company’s liability was at common law for stopping car at dangerous place for passengers to alight without warning them.
    2. Partial satisfaction, not intended or received as full settlement, though reduced to judgment, cannot inure to another tort-feasor, whose concurrent negligence caused injury.
    3. Receipt of full satisfaction and compensation for injury from any one of several tort-feasors releases all.
    4. Liability of street railway company for injuries to passenger stepping from car into hole in street, held for jury.
    5. Whether amount received from city in satisfaction of judgment for injuries to passenger stepping from street car into hole in street was full compensation held for jury, in passenger’s subsequent action against street railway company for such injuries.
    6. In action against street railway company for injuries to passenger stepping from car into hole in street, testimony as to whether prior judgment for passenger against city for same injuries was entered pursuant to agreement, what agreement was, and whether amount received in satisfaction of judgment was intended as full compensation for injuries, held admissible, not being collateral attack on judgment.
    
      [1] Carriers, 10 C. J. § 1320; [2] Judgments, 34 C. J. § 1404; [3] Release, 34 Cyc. p. 1089; [4] Carriers, 10 C. J. § 1469; [5] Judgments, 34 C. J. §1523; [6] Id., §1519,
    
      7. One receiving sum from city in satisfaction of judgment for injuries received in stepping from street car into hole in street could sue street railway company for additional sum necessary to afford her full compensation.
    8. In action against street railway company for injuries to passenger stepping from car into hole in street, burden was on plaintiff to show that amount received by her from city in satisfaction of judgment against it for same injuries was not full compensation.
    9. Passenger stepping from street car into hole in street, about 6 inches deep at point where car stopped to discharge passengers, held not contributorily negligent as matter of law.
    [7] Judgments, 34 C. J. § 1404; [8] Id., § 1509 (Anno.); [9] Carriers, 10 C. J. § 1522.
    (Decided October 19, 1925.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Clarence E. Hallman, for plaintiff in error.
    
      Messrs. De Camp, Sutphin & Brumleve, for defendant in error.
   Cushing, J.

January 13, 1920, Margaret Poehl was a passenger cm one of the defendant’s street cars. At 8:20 a. m. it stopped on Seventh street, west of the corner of Seventh and Elm streets, to discharge passengers. She stepped from the car into a hole, about six inches deep, in the street. She fell, breaking her left ankle and bruising and straining her left leg and side.

Previous to the accident, plaintiff had been employed, earning $16 a week. She was confined to her home for nine weeks as a result of the accident. For two years thereafter she was able to work only every other day, and received $2 a day for three days a week. She paid a doctor’s bill of $35.

March 22, 1920, she filed an action against the city of Cincinnati for damages, claiming that it was negligent in failing, as provided by statute, to keep the street, at the place in question, in repair, and that, in addition to the loss and damage she sustained, as above stated, she suffered great pain and anguish, for which she claimed damages. The city’s answer was a general denial and a plea of carelessness and contributory negligence on her part.

On November 9, 1920, the court of common pleas made an entry reciting that the cause came on to be heard on the pleadings, the evidence, and the motion of defendant for a new trial. A jury having been waived, the motion for a new trial was overruled, and it was “therefore ordered and adjudged that the plaintiff, Margaret Poehl, recover from the defendant, the city of Cincinnati, the sum of $300 and the costs of this action, taxed at $-. To all of which the defendant, the city of Cincinnati, excepts.”

December 8, 1920, an entry of satisfaction was filed. March 19, 1921, plaintiff filed this action against the Cincinnati Traction Company, claiming damages for injuries growing out of the accident above set forth, alleging that the company was negligent in that it stopped its car on Seventh near Elm street and failed to provide a safe place for passengers to alight, and failed to notify or warn plaintiff that the place where its car had been stopped was unsafe and dangerous. She pleaded a loss of $144 for the time that she was confined to her home, a $35 doctor bill, that she was now able to work only half time, and that she received a severe physical and nervous shock, to her damage in the sum of $3,500.

The defendant, after admitting its incorporation, etc., entered a general denial and a separate defense of contributory negligence, and pleaded the judgment in case No. 174065, against the city of Cincinnati, in which she recovered $300, as a bar to the action against it, and also claimed that said judgment of $300 fully compensated her, and was a payment in full of all damages which she had sustained by reason of such accident. The reply denied specifically the allegations of the answer not admitted.

At the trial of the cause the record in case No. 174065 was offered in evidence, and the defendant tendered evidence to show that the judgment it had pleaded was full satisfaction. This evidence was rejected. The court instructed a verdict for the defendant company.

Two questions of law are presented:

(1) Can separate actions be maintained against concurrent tort-feasors, when one tort-feasor has paid a judgment rendered against it, without the record showing that it was full compensation or that the plaintiff reserved the right to sue the other tort-feasor?

(2) On a plea of a judgment and full satisfaction, can oral evidence be introduced to show the circumstances under which that judgment was taken, and, that it was, or was not, full compensation for the injury sustained? On whom would the burden of proof rest to establish full compensation or otherwise ?

The city of Cincinnati and the traction company were not joint tort-feasors. The torts were concurrent and related, but not joint. Morris v. Woodburn, 57 Ohio St., 330, 335, 48 N. E., 1097.

The city’s liability was based on its failure to perform a duty enjoined by statute to keep its streets open, in repair, and free from nuisance. The traction company’s liability was founded on its common-law liability, as charged, stopping its car at a place where it was dangerous for passengers to alight, and in failing to warn them of such danger. The negligence of one was passive, that of the other active, though the negligence of both concurred in inflicting the injury. The partial satisfaction for injuries received, not intended to be a settlement in full (even though reduced to judgment), and not received as, nor in fact being, full compensation, cannot inure to the other tortfeasor, whose concurrent negligence caused the injury.

In many jurisdictions it has been held that any release of one tort-feasor operates to absolve all others. The other line of decisions holds that in order that such release may have its legal effect the satisfaction received by the party injured must be intended to be, and be accepted as, full compensation for all injuries received. These decisions are numerous, and we prefer and have adopted this line of decision as the basis of our judgment. Bailey v. Delta Elec. Light, Power & Mfg. Co., 86 Miss., 634, 38 So., 354. This view is supported in Ohio, in the case of Phillips Sheet & Tin Plate Co. v. Griffith, Adm’x., 98 Ohio St., 73, 76, 120 N. E., 207, 208, where the court says: “Now in this case suppose the Phillips Company were sued jointly with Jefferson county, clearly such petition would be demurrable. While each is liable, each is liable on an entirely different state of facts, in different causes of action; and hence the satisfaction of either’s liability is not a bar to the liability of the other.”

We also adopt the rule that where a party has once received full satisfaction and compensation for an injury inflicted, no matter from which one of the several tort-feasors, all are thereby released. In the case at bar the answer pleaded that the plaintiff had received full satisfaction from the city of Cincinnati. The reply denied this allegation. That presented an issue of fact. Plaintiff was entitled to recover full compensation, and the question should have been submitted to the jury as to whether or not the traction company was liable, as claimed, whether or not she was guilty of contributory negligence, and whether the judgment that she recovered from the city of Cincinnati was full compensation for her loss and injury. The trial court held as a matter of law that the $300 received from the city was a discharge of all tortfeasors from liability. This was error.

The court was also in error in excluding testimony offered on the question of what was considered and agreed to when the judgment of $300 was taken against the city. It is claimed that oral testimony cannot be introduced by way of collateral attack on a judgment. As we view it, this was not an attack on a judgment. It was offered for the purpose of determining whether or not the amount recovered was intended to be, and was, full satisfaction of all injuries. In Marklein v. Marklein, 29 O. C. A., 232, it was held that a former judgment may be given in evidence, accompanied by such parol proof as is necessary to show the grounds upon which it proceeded. In that case the question was whether Flora Marklein was receiving $3 a week from George Marklein as alimony, by agreement, or whether it was the determination of the court that fixed the amount. So, in the case at bar, it was proper to show whether or not the judgment was entered pursuant to an agreement, and what that agreement, if any, was, and whether or not the amount received was intended to be full compensation for the injuries she received. The court was in error in not admitting the testimony in question.

On the issue that plaintiff had received full compensation from the city, the question is presented as to which party, plaintiff or defendant, was charged with the burden of establishing that fact. She had the right to prosecute her action, against the defendant for the recovery of such sum as, together with that already received from the city, would afford her full compensation, and no more, for her injuries. If this is the correct rule of recovery, the burden of proof would be on plaintiff to establish that the recovery was not in fact full compensation. We are aware that the decided cases are in conflict on this question, but the rule stated seems to be more just and based on the better reason.

Counsel for defendant in error argue that Mrs. Poehl was guilty of contributory negligence as a matter of law. We have considered Schnable v. C., C. C. & St. L. Ry. Co., 102 Ohio St., 97, 130 N. E., 510, and C., C., C. & St. L. Ry. Co. v. Lee, Adm’r., 111 Ohio St., 391, 145 N. E., 843, and conclude that the trial court was correct in overruling a motion for an instructed verdict based on the ground that plaintiff below was guilty of contributory negligence as a matter of law.

For the reasons stated, the judgment of the court of common pleas will be reversed, and the cause remanded for a new trial according to law.

Judgment reversed, and cause remanded.

Buchwalter, P. J., and Hamilton, J., concur.  