Barsh v. Mullins

338 P.2d 845

• Court: Supreme Court of Oklahoma
• Decided: January 10, 1959
• Docket: 37792
• Status: Published

Opinions

JACKSON, Justice.

This is an action by H. L. Mullins, administrator of the estate of Melvin Fisher, deceased, to recover damages for wrongful death and for damages inuring to the benefit of deceased’s estate.

Death resulted from a collision between an automobile driven by deceased and a truck driven by Thomas Hall, who was an employee of John and Obie Barsh, d/b/a Barsh Produce Company. However, neither Hall, John Barsh nor Obie Barsh are parties to this action. Plaintiff’s predecessor settled with these parties and executed a release and convenant not to sue in their favor. Four other parties were also included in the release. The material defendants in this action are Kerr Glass Manufacturing Corporation and Roy Barsh, d/b/a Roy Barsh Truck Lines. Plaintiff seeks recovery from said defendants on the grounds that at the time of the accident Hall, the driver of the truck, and Barsh Produce Company were engaged in carrying out a conspiracy in which Barsh Produce Company and each of said defendants were co-conspirators.

Defendant Kerr is a shipper. Defendant Roy Barsh is a public carrier for hire, duly licensed by the Interstate Commerce Commission. Barsh Produce Company is a non-licensed trucker. Defendants allegedly conspired together and with said non-licensed trucker to permit “such non-licensed trucker to masquerade as a’ common carrier under the guise and protection of the common carrier for hire, permits, rates and licensing of defendant Roy Barsh d/b/a Roy Barsh Truck Company” which practice was in violation of both State and Federal law.

At the time of the accident the truck was carrying an interstate shipment of merchandise for defendant Kerr. The jury returned a substantial verdict for plaintiff. We will assume for the purposes of this opinion that the jury was justified in finding that Hall was guilty of negligence which was a proximate cause of the accident. Hall had vision in only one eye and, therefore, under the Interstate Commerce Safety regulations was not qualified to drive in interstate commerce.

Plaintiff seeks to hold defendants liable under the rule that when a conspiracy exists each of the conspirators is responsible for the acts of any one of said conspirators -done in furtherance of the conspiracy. In Blasdel v. Gower, 70 Okl. 178, 173 P. 644, the rule is stated in the first paragraph of the syllabus as follows:

“When a conspiracy is shown to have existed for the accomplishment of an object, each of the. conspirators participating in such conspiracy are responsible for the acts of any one of said conspirators done in furtherance of such conspiracy.”

See also Powell v. Spence, 169 Okl. 63, 35 P.2d 925.

A conspiracy, as defined in Clark v. Sloan, 169 Okl. 347, 37 P.2d 263, is a combination of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. The gist of a civil action for conspiracy is damages and not the conspiracy.

We will further assume for the purposes of this opinion that there was sufficient evidence tending to establish a conspiracy so as to create a question for the jury on this issue.

Defendants argue that even if a conspiracy was proved they are not liable because there was no causal connection between the'object of the -conspiracy and the accident. Defendants rely on Bradley v. Chickasha Cotton Oil Co., 184 Okl. 51, 84 P.2d 629. In that case we held that one who unlawfully permitted another to operate a truck under his permit was not liable to a party injured by the negligence' of the truck driver, where the unlawful use of the truck had no causal connection with the injury. The unlawful use of' the truck was said to be a mere condition and not a contributing cause of the injury. However, it is not necessary for us to determine whether that case is controlling in the in-sta,nt case., Nor is it necessary to decide whether non-acting conspirators are liable for the negligent acts of their co-conspirators where the object of the conspiracy did not embrace an intent to cause damage to the person injured. Plaintiff is precluded from recovering in any event for another reason.

Plaintiff’s predecessor executed a release and covenant not to sue in favor of Hall, the driver of the truck, and Barsh Produce Company, his employer. This instrument contains the customary language of a general release, viz.:

“do remise, release and forever discharge * * * of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, claims and' demands whatsoever, * *

Then follow provisions to the effect that said release is not intended to release anyone other than those specifically named with express reservations, of rights of action against all others.

If'this were a case involving ordinary joint tort-feasors, each guilty of independent and concurring negligence, it is clear that á release of this type would not release those joint tort-feasors not named. All American Bus Lines v. Saxon, 197 Okl. 395, 172 P.2d 424. In such cases primary consideration is given to the intent of the person executing the release. If, however, the claimed liability of defendants for the negligent acts of Hall and Barsh Produce Co. is derivative in nature, a different rule is applicable.

In Ford Motor Co. v. Tomlinson, 6 Cir., 229 F.2d 873, 877, the court pointed out that under Ohio law an injured person could ordinarily release one joint tort-feasor and later recover from the remaining tort-feasors if the right to do so was expressly reserved in the release. But the court further said:

“ * * * in Ohio the release of a tort feasor primarily liable ordinarily operates to release one secondarily li-able, regardless of an attempt to re- ■' serve rights against- the latter. Hillyer v. City of East Cleveland, 1951, 155 Ohio St. 552, 99 N.E.2d 772. See Terry v. Memphis Stone and Gravel Co., 6 Cir., 1955, 222 F.2d 652.” (Emphasis supplied.)

In one of the cited cases, Terry v. Memphis Stone & Gravel Co., the court used the following language [222 F.2d 653]:

“Appellant, for a substantial and valuable consideration, signed a covenant not to sue the truck owner, Sullivan, or the truck driver, Hyatt. Inasmuch as, the liability alleged against the ap-pellee company rested solely upon the averment that the truck driver was the servant or agent of the appellee com- . pany for whose negligence it would be responsible upon the principle of re-spondeat superior, a covenant not to sue the truck owner and the driver — ap-pellee’s alleged agents — would necessarily release appellee. The case is clearly distinguishable from those cases in which'a covenant not to sue one joint toi’t-feasor does not protect another joint toi't-feasor from an action for damages brought against it by an injured party.”

In Giles v. Smith, 80 Ga.App. 540, 56 S.E.2d 860, 862, the court said:

“Where the liability, if any, of the master to a third person is purely derivative and dependent entirely upon the principle of respondeat superior, and although not technically a joint-tortfeasor, the master may be sued alone or jointly with the servant but a judgment in favor of the servant on the merits (and by analogy, a release of the servant from liability, 35 Am.Jur. 963, 534) will bar an action against the master, where the injury and damage are the same.”

We have recognized and applied the rules hereinabove announced. In Mid-Continent Pipeline Company v. Crauthers, Okl., 267 P.2d 568, 571, the plaintiff executed a release and covenant not to sue in favor of defendant’s agents for a consideration of $300. Therein, as -in the case before us, the release expressly reserved a right of action against any other persons who might have caused or assisted in causing plaintiff’s damage. Subsequently, in the case against the principal, the jury returned a verdict for $600 based upon the defendant’s derivative liability for the acts of its agents. We held that the release of the agent released the principal and reversed with directions to enter judgment for defendant. In the body of the opinion we said:

“Under the facts in this case, the only negligence of which the defendant • company could possibly be guilty was the negligence of its agents or employees, the Colpitts, whose pumper turned the wrong valve and caused the oil to flow into the watercourse instead of the pipe line. * *

“Therefore, the liability of the defendant pipe line company can arise, if at all, only by virtue of the doctrine of respondeat superior.”

In the second paragraph of the syllabus it is held:

“Where the master is liable to a third party for the tort of his servant solely by reason of the doctrine of respondeat superior, and no independent or concurring act of negligence by the master is shown, a valid release of the servant from liability for the tort operates to release the master.”

In Hammond v. Kansas, O & G. Ry. Co., 109 Okl. 72, 234 P. 731, 732, the defendant railway company leased a portion of its tracks to another railway company. An employee of the lessee railway negligently killed plaintiff’s deceased. Plaintiff administrator released the lessee and continued to prosecute its action against defendant lessor. We held that the defendant lessor was at one time liable because it had by its silence and acquiescence led the public to believe that the lessee was authorized to exercise a portion of defendant’s franchise, but that the release of the lessee railway company released the defendant .from liability. In the body of the opinion we said:

“It is the contention of plaintiff that the two railway companies, the Okmul-gee Northern and the Kansas, Oklahoma & Gulf, were joint tort-feasors, and decisions of this court and of the courts of other jurisdictions are cited to the effect that an acknowledgment by the plaintiff of satisfaction against one of two defendants sued as joint tort-feasors will not relieve the other, unless such instrument shows that it was intended to have such effect. Bland v. Lawyer-Cuff Co., 72 Okl. 128, 178 P. 885. The cases cited announce the rule applicable to the facts of those cases, and the decisive question in the instant case, as we view it, is whether the two railway companies were joint tort-feasors. * * •*

“It is not contended that the defendant in any way participated in any act or acts of the Okmulgee Northern or its motorman or other employee, which caused or resulted in the injury and there was no concurrent act or acts of negligence on the part of defendant which, in any way, contributed to the injury. * *

“ * * * Assuming that the Okmul-gee Northern Railway Company, through its motorman, was negligent, arid that such negligence was the primary or proximate cause of the death of plaintiff’s intestate, the ■ defendant company would only be secondarily liable on the principle of respondeat superior, or the liability of the principal for the acts of his agent. * * * '

“ * . * * In other words, the doctrine of respondeat superior-is applied in such case, and the release of the one who committed the tort inures to the benefit of the principal.”

The rationale of this view appears to be that when the agent is released the prin- , cipal is-deprived of his right of. reimbursement. The opinion in Losito v. Kruse, 136 Ohio St. 183, 24 N.E.2d 705, 707, 126 A.L. R. 1194, contains the following language:

“A settlement with and release of the servant will exonerate the master. Otherwise, the master would be deprived of his right of reimbursement from the servant, if the claim after settlement with the servant could be enforced against the master.”

The court held, however, that a release of and partial satisfaction by the master would not release the servant. This follows because the liability of the servant is primary and not derivative. A release of the master could not operate to his prejudice.

We must now determine whether in the instant case the defendant’s liability, if any, is primary or derivative. In 11 Am. Jur. Conspiracy § 54, it is stated in substance that the liability of the non-acting conspirator may be established by invoking the rule of respondeat superior. In Reid v. Holden, 242 N.C. 408, 88 S.E.2d 125, 130, the court said:

“It would seem that, as to a conspirator who committed no overt act resulting in damage, the basis of his liability for the conduct of his co-conspirators bears close resemblance to the basis of liability of a principal under the doctrine of respondeat superior for the torts of his agent.”

In that case the court held that a judgment in favor of the acting conspirator was a bar to an action against the non-acting conspirators. This is the- law in Oklahoma where a judgment is rendered in favor of an agent and a subsequent action is filed against the principal. It is to be noted, however, that a judgment in favor of a true joint tort-feasor is not a bar to an action against other joint tort-feasors. Lewis v. Ingram, 10 Cir., 57 F.2d 463, certiorari denied 287 U.S. 614, 53 S.Ct. 16, 77 L.Ed. 533. In that case the defendant was sued as a conspirator. The court rejected defendant’s claim that a prior judgment in favor of the other alleged conspirators was a bar to the action against him. The expressed basis for so holding was the fact that defendant was guilty of independent tortious conduct so that his liability was not derivative. It is not necessary for us to determine whether the liability of a non-acting conspirator would be primary or derivative in a case where the object of the conspiracy was to cause damage to the person injured. It may be that in such case the non-acting conspirators would be considered guilty of independent negligence as commanding or advising the commission of the tort which caused the injury, and to that extent would be liable as if they had committed the act with their own hands. See Hammond v. Kansas, O. & G. Ry. Co., supra. In the instant case defendants in no way participated in the driver’s negligence which injured plaintiff. Nor did they participate in Barsh Produce Company’s alleged negligence in placing an unqualified driver on the road, and they did not conspire to cause damage to plaintiff or anyone else. If they were ever liable such liability was by reason of their alleged participation in a joint venture, and to that extent their liability for these acts of negligence could’ not possibly be greater than that of a principal for the negligent acts of its agent or that of a partner for the tortious acts of another partner in which he did not participate, and of which he had no advanced knowledge. The liability in the latter case is also based upon the rules of principal and agent or respondeat superior, and is derivative in nature. See 68 C.J.S. Partnership § 168 and footnotes, and Barrett and Seago’ Partners and Partnerships, Vol. 1, § 6, pages 459 and 460.

There is no magic in the word “conspiracy” in civil cases. In a civil conspiracy the gist of the action is not the conspiracy but the damages. In most cases where a conspirator has been held liable for acts of his co-conspirators, the object of the conspiracy was to damage the particular plaintiff. If, as contended by plaintiff, there can be liability for injuries caused by the negligence of a co-conspirator and his employee, though it was not the object of the conspiracy to damage anyone, such liability must necessarily be based upon the rule governing the liability of a principal for the tortious acts of its agent, and is therefore derivative in nature. It therefore follows that the release of those who were guilty of the primary negligence extinguishes the liability of the other conspirators.

Plaintiff further contends that the defendant Kerr was guilty of independent negligence so that it is liable as a joint tort-feasor without regard to its claimed liability as a conspirator and, therefore, the release and covenant not to sue Hall and Barsh Produce Company could not extinguish Kerr’s liability for such independent negligence.

In the discussion which immediately follows, it is necessary to bear in mind that the only problem considered is whether or not Kerr was guilty of independent negligence proximately causing the accident in addition to its claimed participation in the conspiracy. Some of the acts considered might tend to establish that it was a conspirator, but our present inquiry assumes derivative liability as a conspirator and relates to the sole question of whether Kerr was guilty of independent negligence proximately causing the accident which would prevent the release of the acting conspirators from inuring to the benefit of Kerr.

One act of independent negligence charged against Kerr is that it permitted Barsh Produce to haul a shipment in interstate commerce knowing that Barsh Produce Company did not have an Interstate Commerce Commission permit. If this was negligence per se considered independently of the conspiracy, for the reason that it constituted Kerr an aider and abettor in violation of the Federal statutes governing shipments in interstate commerce, such negligence alone had no causal connection with the accident. Bradley v. Chickasha Cotton Oil Co., supra. Plaintiff argues that there was causal connection in that if Barsh Produce Company had been licensed by the Interstate Commerce Commission they could not have employed an unqualified driver. This does not follow. It is true that Hall was not a qualified driver according to the Interstate Commerce Commission’s Safety regulations but even if Barsh Produce Company had been licensed they could have, nevertheless, employed an unqualified driver if they so desired.

Plaintiff further contends that Kerr was guilty of independent negligence in failing to check the qualifications of the driver. In Marion Machine, Foundry & Supply Co. v. Duncan, 187 Old. 160, 101 P.2d 813, plaintiff sought to recover from defendant shipper on the grounds that the independent contractor who contracted to haul oil field pipe for defendant was unfit and unskilled in hauling pipe. Answering this contention, we said: •

“Ordinary hauling by truck is neither inherently dangerous nor unlawful. The shipper is under no duty in this state to ascertain whether the motor carrier has complied with the motor vehicle laws or to inquire into the nature and adequacy of his equipment. An automobile is not an inherently dangerous machine.”

Plaintiff observes that in the last mentioned case the court suggested that if the shipper had aided or abetted the trucker in his violation of the law it could not contend that the trucker was an independent contractor. Apparently, plaintiff is contending that in such case the trucker would become the servant of the shipper so that the shipper would then have a duty to see that the driver was qualified, and therefore Kerr would be guilty of independent negligence in failing to check the qualifications of the driver. It does not appear that this in itself would constitute actionable negligence. See 35 Am.Jur. Master and Servant § 548. Furthermore, in the Marion Machine case the court did not hold that aiding and abetting would destroy the independent contractor relation but merely assumed arguendo that such contention was correct. In making this assumption the court was mistakenly influenced by certain language used in Bradley v. Chickasha Cotton Oil Co., supra. In that case the defendant knowingly permitted a contractor to use its permit in violation of the law. The court said this might constitute part of the proof of a master and servant relationship if there was other evidence tending to show such relationship. In discussing this question, the court further said [184 Old. 51, 84 P.2d 633]:

“ * * * A relationship is never adjudged to be that of master and servant unless the master is shown to have had, at least in theory, some control over the acts of the alleged servant which caused the injury. Whatever is said concerning the payment of mileage tax and use of the permit, the undisputed evidence in the present case showed a total absence of this necessary element.”

Likewise, in the instant case, there is a total lack of evidence tending to show any independent control by Kerr over Barsh Produce Company or its driver.

Finally, plaintiff contends that if the release and covenant not to sue released defendants such instrument was void and of no effect. The order of the County Court authorizing the administrator to execute the release and covenant not to sue further directed the administrator:

“ * * * to proceed in such manner as may be deemed in the best interest of said estate to press, prosecute, institute actions, or otherwise proceed as by law provided, in Order to recover just claims, damages, debts and losses to said estate from all persons whomsoever, excepting only those above named with whom said Administrator is herein directed to enter into a Covenant Not to Sue.” (Emphasis supplied.)

Plaintiff contends that if, under applicable law, the plaintiff did not have a cause of action against the defendants that portion of the order above quoted is void; therefore, that part of the order which orders the execution of the release and covenant to sue was also void. This contention is without merit for numerous reasons.

The County Court had jurisdiction to authorize the execution of the release and covenant not to sue; therefore, even if that part of the order directing further suits were void, it would not follow that the balance of the order was void.

Furthermore, that part of the order directing the institution of such action as “may be deemed in the best interest of said estate * * * to recover just claims” is not void. Pursuant to his order the administrator did proceed to institute an action which he deemed to be in the best interests of the estate. We have held that there was no “just” claim against these defendants because they were not guilty of independent negligence proximately causing the accident. This does not mean plaintiff had no right to institute the action. The trial court erred in overruling defendant’s motion for a directed verdict.

The judgment is reversed and the cause remanded, with instructions to set aside the judgment and to render judgment for defendants, Kerr Glass Manufacturing Company and Roy Barsh d/b/a Roy Barsh Truck Lines.

DAVISON, HALLEY, JOHNSON, WILLIAMS and CARLILE, JJ„ concur. WELCH, C. J., concurs in result. BLACKBIRD and WILLIAMS, JJ., dissent.