
    COMPROMISE — RELEASE.
    [Cuyatoga (8th) Circuit Court,
    November 24, 1905.]
    Marvin, Winch and Henry, JJ.
    Arthur E. Gilbert v. Wilmer A. Timms.
    COMPROMISE with ONE JOINT TORT FEASOR RELEASES OTHERS, IF ACTION FOR UN-LIQUIDATED Damages.
    A compromise with one joint tort feasor, containing an express reservation of the right to prosecute the other defendant for a balance in excess of the amount so received will operate to release the latter if the action be for unliquidated damages; where, however, the damages are measurable under fixed rules of law, and it is therefore easy to determine whether or not the amount paid is full compensation and satisfaction, for the injury complained of, whether such agreement will discharge the other tort feasor only pro tanto, quaere.
    
    [Syllabus approved by the court.]
    Error to Cuyahoga common pleas court.
    Smith, Beardsley & Morgan, for plaintiff in error-.
    Squire, Sanders & Dempsey, for defendant in error;
   WINCH, J.

Plaintiff brought his action against Dr. Wilmer A. Timms and Dr. Charles B. Parker to recover damages alleged to have been sustained by reason of malpractice in the setting of a broken arm. After filing his petition, plaintiff settled with defendant, Charles B. Parker, and this fact was set up by Dr. Timms, in a supplemental answer, as a bar to any recovery against the latter.

Thereupon plaintiff replied, admitting the settlement with Dr, Parker, but alleging:

“In making said settlement with defendant, Charles B. Parker,, however, the plaintiff expressly stipulated that in receiving said consideration from the said Charles B. Parker he expressly reserved all rights he may have against defendant, Wilmer A. Timms, to prosecute the said action and recover such damages as he may be able to show have accrued to him on account of the facts set up in the said petition, in excess of the amount so received from defendant, Charles B. Parker. ’*

Upon motion of the defendant, Timms, judgment was rendered by the common pleas court for defendant, upon the pleadings.

To reverse said judgment the case is here on error, and must be affirmed on authority of Ellis v. Bitzer, 2 Ohio 89 [15 Am. Dec. 534], unless the provisions of an act for the relief of partners and joint debtors, passed April 8, 1857 (54 O. L. 94), apply. Said act is now found as Rev. Stat. 3162 to 3166 (Lan. 4881 to 4885) inclusive. The first four sections refer to partnerships and provide that after dissolution of a partnership, one partner may compromise with the firm’s creditor, for his share of its debt, and be released from all further liability thereon, without releasing the other partners therefrom or affecting their right to call on the member who makes the compromise; or composition for his ratable portion of such partnership debt.

, The last section reads as follows:

Bevised Statutes 3166 (Lan. 4885). “The above provisions in reference to partners shall extend to other joint debtors, who may individually compound or compromise for their joint indebtedness, with the .like effect in reference to creditors and to joint debtors of the individual, so compromising, as is above provided in reference to partners.”

We are inclined to think that the legislature, when it passed this; act, was fully advised of the ruling of the Supreme Court in the case above referred to, but did not intend by said act to change the law as there announced. Had its intention been as broad as is contended for by counsel for plaintiff, language more apt for the purpose could have been used, and the reference in Rev. Stat. 3166 (Lan. 4885) to “joint debtors of the-individual, so compromising,” is for the purpose of preserving to them the right of contribution, which exists in the case of joint obligors, but not in the case of joint tort feasors.

New York state has a similar statute, but the courts of that state, where the rule expressed in Ellis v. Bitzer, supra, is not the law, have based their holdings upon principle and not upon the statute.

In the case of Gilbert v. Finch, 173 N. Y. 455 [66 N. E. Rep. 133; 61 L. R. A. 807; 93 Am. St. Rep. 623], Judge Haight says, on page 466:

“It thus appears that the decisions of this court are in accord with the English rule, and in harmony with our statute in reference to -joint debtors.”

So also, Judge Folger, in the case of Irvine v. Milbank, 15 Abb. Pr. (N. S.) 378, suggests the nonapplieability of the statute, but does not so adjudge.

We are doubtful whether the severity of the rule announced in 1825 by the Supreme Court of this state in the case referred to, should be relaxed in the case of all joint tort feasors. The modern holdings seem to make a distinction between the eases where there is no fixed legal measure of damages, as here, and those where there is a fixed legal measure, as in the case of Ellis v. Esson, 50 Wis. 138 [36 Am. Rep. 830], where there was a trespass upon real estate and the carrying off of certain saw logs.

The ground for the distinction lies in the fact, that in a ease where the damages are to be measured by the discretion of the jury, there is no way to determine whether the amount received from one joint wrongdoer is in full satisfaction of the whole wrong, while in a case like the saw log case, where the damages are measurable under fixed rules of law, it is easy to determine whether or not the amount paid by one is full compensation and satisfaction for the injury complained of.

This distinction also furnishes a cogent reason for, denying the application of the statute to the case of joint tort feasors, and leaves the courts free to make such distinction in a proper case.

Judgment affirmed.

Marvin and Henry, JJ., concur,  