Commonwealth, Department of Highways v. Cardwell

409 S.W.2d 304, 1966 Ky. LEXIS 56

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: November 11, 1966
• Status: Published

Opinions

DAVIS, Commissioner.

Appellees, Frances Greer and Ada Cardwell, were awarded damages against appellee, Department of Highways, in their claims filed in the Board of Claims. The Department appealed to the circuit court, and for purposes of this opinion, we will regard the awards as affirmed by the circuit court. (Certain modifications in the amounts of the awards were made in circuit court, but the modifications are not involved here.)

The appellees were injured when a car in which they were passengers collided with a truck owned by J. R. White Contracting Company, driven by James Smith; the accident occurred September 28, 1955. The J. R. White Company was insured by Aetna Casualty and Surety Company. The insurance company settled the claims of ap-pellees Cardwell and Greer against the White Company. Incident to these settlements the respective appellees, on September 20, 1956, executed written releases denominated as “release in full,” and reciting, in part :

“ * * * and by these presents do for myself, my heirs, executors, administrators and assigns, release and forever discharge the said J. R. White Contracting Co. and James Smith and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of damage to property, bodily injuries or death, resulting, or to result, from an accident to myself which occurred on or about the 28th day of September, 1955 *

The instant claims in the Board of Claims were filed September 25, 1956, asserting that the Department’s employees failed to furnish adequate notice of repair work being performed on the highway at the site of the accident.

The Board of Claims found as fact that the appellees did not intend to release the Department of Highways when they executed releases to the insurance company. This finding is supported by ample evidence. The stubborn question is whether the plenary releases served to release the Department of Highways despite the contrary intention of the parties to the release.

The question was laid to rest in Kingins v. Hurt, Ky., 344 S.W.2d 811, decided March 24, 1961. The principle enunciated in Kingins was followed in Gibson v. Dupin, Ky., 377 S.W.2d 585. The clear teaching of those decisions is that the release of one joint or concurring tort-feasor serves to release them all, and the instrument of release should be construed to mean what it says, and “ * * * unless on its face it can fairly be interpreted as reserving the claimant’s rights against other tortfeasors it will be treated as an unconditional release.” Kingins v. Hurt, Ky., 344 S.W.2d at 812. The court is not inclined to reconsider the ruling in Kingins and Gibson.

Neither may we accept the contention of appellees that the rule enunciated in King-ins should be given prospective force only. It is true that some opinions of this court have permitted absolute releases to be contradicted, and permitted consequent recovery against one tortfeasor even after the claimant had executed a full release to another tortfeasor. For example, see Deatley v. Phillips, 311 Ky. 698, 225 S.W.2d 296; Louisville Gas & Electric Co. v. Beaucond, 188 Ky. 725, 224 S.W. 179; Louisville & Evansville Mail Co. v. Barnes’ Adm’r, 117 Ky. 860, 79 S.W. 261, 25 Ky.Law Rep. 2036, 64 L.R.A. 574, 111 Am.St.Rep. 273, and cases discussed in them. However, we are committed to the rule that the release should preserve the right to pursue any part of a claim against another tortfeasor and failing to do so, the plain language of the release must control. The release in the Kingins case was executed in 1958, some three years before the ultimate decision of that case in this court, but its principle was made applicable to the litigants who had executed a release in 1958 — or retrospectively. We are not persuaded that claimants have been lulled into execution of full releases by virtue of reliance upon decisions of this court that the releases really did not mean what they said. On the contrary, it seems plain that no person cognizant of the law would deliberately execute a full release with a view to later asserting that the release did not mean what it said. In some instances, as noted, this court has afforded relief to persons who had inadvertently given full releases when they intended to give partial ones, but that policy is deemed inconsistent with orderly procedure. Surely it does not ask too much of draftsmen and others dealing in such instruments to take the time and trouble to have them say what is meant.

It is true that the Board of Claims made a factual finding that appellees did not intend to execute a full release, but this is not a situation which brings into play the usual rule that the factual finding of an administrative body is to be sustained if supported by substantial evidence. Rather, this is a situation in which the Board has misapplied the legal effect of the facts. In such cases the courts are not bound to accept the legal conclusions of the administrative body. 2 Am.Jur.2d, Administrative Law, Section 676.

The judgment is reversed in each appeal, with directions to enter new judgments setting aside the awards and remanding the cases to the Board of Claims for dismissal of the claim in each case.