HOLTZ v. United Plumbing & Heating Company, Inc., a corporation, and Pardoe Building Corporation, a corporation, Respondents.*

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District Court of Appeal, Second District, Division 1, California.

Dorothy M. HOLTZ, Plaintiff and Appellant, v. Byron W. TAYLOR, Mrs. Byron W. Taylor, United Plumbing and Heating Company, Inc., a corporation, Pardee Building Corporation, a corporation, Eleonora Bertha Wanglie, Administratrix of the Estate of Orville Brew, a/k/a Orville E. Brew, deceased, Doe IV–V, Defendants, United Plumbing & Heating Company, Inc., a corporation, and Pardoe Building Corporation, a corporation, Respondents.*

Civ. 21880.

Decided: May 09, 1957

William Jerome Pollack, Abraham Gottfried, Beverly Hills, for appellant. Spray, Gould & Bowers, Frank J. Breslin, Jr., Los Angeles, for respondent Pardee Building Corp. Dryden, Harrington, Horgan & Swartz, Vernon G. Foster, Los Angeles, for respondent United Plumbing and Heating Company, Inc.

Plaintiff, Dorothy M. Holtz, brought the instant action for damages for the wrongful deaths of both her husband and son, who (in addition to the guest in their automobile) were killed when an automobile driven by Orville Brew collided with theirs, between six and seven o'clock in the evening of Friday, June 11, 1954, at Pearblossom, California, approximately 227 miles from Las Vegas, Nevada, on the road to Los Angeles. Orville Brew and his wife, the only occupants of the automobile driven by Brew, also died in the collision. Brew worked in Las Vegas and lived in Los Angeles. The record contains the testimony of no one who saw the collision.

The defendants include the Brew Estate, Brew's Las Vegas employer, United Plumbing & Heating Co., Inc., Brew's former employer, Byron W. Taylor, who owned the car driven by Brew and a plumbing supply shop in Los Angeles, was a plumber licensed in California and not in Nevada, but was interested in the Las Vegas job upon which Brew had been employed by United at Taylor's request, Mrs. Taylor, and Pardee Building Corporation, owner of real property upon which Brew might have done some work in connection with the installation of a sprinkler system.

By minute order dated December 20 and entered December 22, 1955, a motion for nonsuit was granted to the defendant Mrs. Taylor; and ‘Motion of defendant United Plumbing & Heating Company, Inc., for a nonsuit is granted and said defendant is given its costs against plaintiff Dorothy M. Holtz, in the sum of $185.90 * * *.’ A like motion of defendant Pardee was granted with costs of $85.85. Plaintiff has appealed from the order granting nonsuits as to the defendants United and Pardee.

While United's notice to plaintiff dated December 27, 1955, states that ‘on December 20, 1955, a judgment of nonsuit was entered’, no judgment of nonsuit is included in the record on the instant appeal. However, if ‘* * * no judgment was entered, none was required * * *. [W]hen a motion for nonsuit is granted the minute entry thereof is sufficient for all purposes and is treated the same as a final judgment and therefore appealable.’ Budrow v. Wheatcraft, 115 Cal.App.2d 517, 522, 252 P.2d 637, 640; Code Civ.Proc. § 581d. Therefore, only the appeal from the minute order granting the motions of defendants, United and Pardee, for nonsuits as to them requires our consideration.

At the close of the argument on defendant Pardee's motion for nonsuit, the Court asked, ‘What evidence is there relative to the Pardee defendant?’ and plaintiff's attorney, Mr. Pollack, answered ‘None’. On examination of the evidence, we likewise find no evidence of any liability on the part of defendant Pardee. Nevertheless, plaintiff, in her Opening Brief states: ‘This is an appeal from the granting of the judgment of nonsuit in favor of United and Pardee. However, appellant is pressing the appeal only with respect to United.’ In her Opening Brief, plaintiff further states: ‘There is only one question involved in this appeal: Did plaintiff's evidence establish prima facie that the negligence of Brew was imputable to United?’ Under the circumstances of the instant action, only delay and annoyance could have been accomplished by the appeal from the minute order granting defendant Pardee's motion for nonsuit. The appeal is manifestly frivolous.

Brew was on United's payroll as a journeyman plumber. United paid the Brew Estate for nine hours work by brew on the day of his death. United billed the general contractors therefor and was repaid by them. That was the customary procedure regarding labor furnished by United in connection with its subcontract.

The accident occurred between six and seven o'clock on Friday evening. Brew and his wife were on their way home to Los Angeles for the weekend and had travelled 227 miles after Brew left work in Las Vegas.

Appellant's argument is difficult to follow, but it includes the following assertions: ‘The negligence of Brew was imputable to United on any one or more of * * * three different theories: (a) Brew was an employee of United acting within the scope of his employment; (b) Brew was an employee of United and Taylor (joint venturers) acting within the scope of his employment; or (c) Brew was an employee of United and Taylor (joint venturers) and besides * * * was also an agent, servant and employee of Taylor acting within the scope of his employment while driving Taylor's car at the time of the collision.’

The record contains no substantial evidence that Brew, while on his way with his wife to their home in Los Angeles, was acting within the scope of his regular employment, or any employment, by United.

Conceding for the purpose of argument that United and Taylor were acting as joint venturers, and that Brew was acting within the scope of that joint venture while driving Taylor's automobile at the time of the accident, respondent United urges that it has been released by appellant's dismissal as to Taylor during the jury's deliberations at the trial, because a retraxit as to one of several who are jointly liable for negligence acts as the release of all. Appellant counters with the claim that the ‘covenant not to sue Taylor is not a retraxit’. Whether the dismissal as to Taylor was in fact a retraxit is the first question to be determined on this appeal.

The record is far from clear with respect to Taylor's dismissal from the action.

The allegations of the amended and supplemental complaint are that ‘defendants, and each of them, were the owners of the motor vehicle referred to’; that Brew ‘was the agent, servant and employee of defendants, and each of them, and was acting within the time, place and scope of his said employment and agency’; that Brew ‘was driving the aforesaid motor vehicle with the consent, permission and knowledge of defendants, and each of them’; that Brew ‘and the other defendants, and each of them’ negligently maintained, drove and operated their said motor vehicle'. The prayer of the complaint is for judgment against defendants, and each of them. Defendant Taylor's testimony that his insurance company had paid the beneficiaries of the deceased guest in the Holtz car was taken for the purpose of showing the reduced amount of the liability imputed to him as owner of the automobile driven by Brew.

The Reporter's Transcript includes the following:

‘Mr. Pollock (Attorney for plaintiff and appellant): Let the record show that the plaintiff, Dorothy M. Holtz, is dismissing the action without prejudice as to the defendant Byron W. Taylor; that it is the intention of all the parties that he reserves all his rights against the estate of Orville Brew. Is that right counsel?

‘Mr. Melby (Attorney for defendant Administratrix of the Estate of Brew): That is the understanding.

‘Mr. Sackett (Attorney for defendant Taylor): That is the understanding.’

The minutes of the court dated December 21 and entered December 23, 1955, read in part as follows: ‘Trial is resumed * * * the jury retires for deliberation. Motion of plaintiff to dismiss the action as to the defendant Byron W. Taylor without prejudice is granted, and counsel for plaintiff and for said defendant stipulate each party is to bear their own costs. It is stipulated by counsel for all parties herein that plaintiff retains all rights as against the defendant Administratrix of the Estate of Brew deceased. At 3:14 p. m. the jury returns into Court for further instructions, and at 3:19 p. m. the jury retires. At 3:25 p. m. the jury returns into Court with an incorrectly completed verdict and at 3:27 p. m. the jury again returns to the jury room for deliberation. At 4:05 p. m. the jury returns into Court with the following verdict: Title of Court and Cause: We the jury in the above entitled action, find for the plaintiff Dorothy M. Holtz and against the defendant Eleanora Bertha Wanglie, Administratrix of the Estate of Orville Brew, deceased, and assess damages in the sum of $40,000.00, and against the defendant Byron W. Taylor and assess damages in the sum of $_____ * * *’.

And, according to the Reporter's Transcript, the court then said to the jury: ‘* * * the plaintiff and defendant Taylor just a few minutes before you came down reached a settlement between themselves, and therefore it really was not of any practical value to answer your questions, after they had agreed to that and the plaintiff had entered a dismissal as to the defendant Taylor.

‘* * * If, as contended by the plaintiff, the man Brew was an employee and acting in the scope of his employment, then Taylor would be liable for the same amount as Brew. If, however, it was not a case of acting within the scope of his employment, but merely a simple permissive use, then Brew would be liable for whatever you found to be the damages, and Taylor would be liable to the statutory limit, but not beyond the statutory limit * * *’.

In appellant's opening brief, she states: ‘* * * While the jury was deliberating plaintiff covenanted with Taylor not to prosecute the action further as against him for the sum of $6711.68 (the approximate balance of his insurance after payment of the death claim of Arthur H. McBain, who was riding in the automobile with the Holtzes) * * *’. And in her reply brief, she states that ‘plaintiff executed a covenant not to sue Taylor wherein she reserved all her rights against United and the action was dismissed without prejudice as to that defendant.’ She then refers the Court to paragraphs 2 and 4 of the covenant, which she states read as follows:

‘In executing this Covenant, I, Dorothy M. Holtz, expressly reserve any and all rights of action, claims, or demands which I may have against the estate of Orville E. Brew, and any other person, firm, or corporation, * * *

‘It is further understood and agreed that it is a covenant not to sue and not a release’.

Both appellant and United have cited numerous cases discussing the differences between a covenant not to sue and a retraxit. We are mentioning only those which were helpful to us in determining the question engaging our attention.

In Flynn v. Manson, 19 Cal.App. 400, 126 P. 181, plaintiff alleged injury because of the wrongful act of the defendants. She then moved to dismiss as to one defendant in consideration of $250, ‘reserving the right to proceed against the remaining defendants'. A judgment of dismissal in favor of the one defendant was entered. When the matter came up for trial, the motions of the other defendants for dismissal as to them were granted, and the judgments of dismissal were affirmed on appeal. The court therein, 19 Cal.App. at page 403, 126 P. at page 182, quotes from Chetwood v. California National Bank, 113 Cal. 414, 426, 45 P. 704, as follows: ‘While plaintiff may sue one or all of the joint tort-feasors, he can have but one satisfaction. Once paid for the injury he has suffered by any one of the joint tort-feasors his right to proceed further is at an end. Where several joint tort-feasors have been sued in a single action, a retraxit of the cause of action in favor of one of them operates to release them all. By his withdrawal plaintiff announced that he has received satisfaction for the injury complainted of. * * * It matters not, either whether the payment made was in a large or in a small amount. If it be accepted in satisfaction of the cause of action against one it is in law a satisfaction of the claim against them all’. And, in the Flynn case, supra, 19 Cal.App. at page 404, 126 P. at page 182, the court held that the saving clause did not prevent the dismissal as to one defendant from operating as a release of all.

In the instant action, plaintiff received from Taylor the amount which would have been due from him in the event the jury's verdict should have been that Taylor was liable only as the owner of the automobile, and that Brew was not at the time of the accident acting in the course of any employment by Taylor (either alone or as a joint adventurer), which question was withdrawn from the jury by plaintiff's settlement with and dismissal as to defendant Taylor. The dismissal was made before the jury had rendered its verdict that Brew had been guilty of any negligence which could be imputed to Taylor, and before the jury had assessed plaintiff's damage.

Plaintiff having compromised her claims against Taylor and accepted the balance of his insurance coverage as owner of the automobile driven by Brew, and having dismissed as to Taylor while the jury was still deliberating, the agreement between plaintiff and Taylor, for all practical purposes was a release in consideration of the payment received. Abb v. Northern Pac. R. Co., 28 Wash. 428, 68 P. 954, 58 L.R.A. 293; Hawber v. Raley, 92 Cal.App. 701, 707, 268 P. 943.

In Pellett v. Sonotone Corporation, 26 Cal.2d 705, 160 P.2d 783, 160 A.L.R. 863, the agreement involved was that a certain joint tort-feasor defendant would defend the action until judgment and that the plaintiff, in the event of success in the action, would not levy execution upon any of the property of that certain defenant. It was neither a release nor a covenant not to sue and there was no dismissal of the action as to the defendant. In that decision, however, Mr. Chief Justice Gibson, speaking for the court, 26 Cal.2d at page 711, 160 P.2d at page 786, said:

‘* * * the distinction between a release and a covenant not to sue is entirely artificial. As between the parties to the agreement, the final result is the same in both cases, namely, that there is no further recovery from the defendant who makes the settlement, and the difference in the effect as to third parties is based mainly, if not entirely, on the fact that in one case there is an immediate release, whereas in the other there is merely an agreement not to prosecute a suit. The rule regarding a covenant not to sue was apparently adopted as an exception to the strict release rule because the courts desired to modify the latter rule by indirection.’

In Markwell v. Swift & Co., 126 Cal.App.2d 245, 272 P.2d 47, 48 an action involving personal injuries suffered by the plaintiff because of the negligence of four named defendants, after the cause had been called for trial and before the first witness took the stand, plaintiff in open court dismissed as to the defendants Swift and Company and Ralph Chilton, in consideration of $250 and $100 respectively. Plaintiff's attorney announced to the court that plaintiff ‘will give a covenant not to sue and a covenant not to sue further’. At the conclusion of plaintiff's case motion for nonsuit was made by the other defendants on five grounds including ‘That the dismissal of the defendants, Swift & Company and Ralph Chilton, constituted a retraxit and barred any recovery against the remaining defendants'. That motion was granted. Plaintiff appealed. This court, 126 Cal.App.2d at page 252, 272 P.2d at page 51, said: ‘While it is true, as contended by appellant, that a mere covenant not to sue one or more joint tort feasors does not operate to relieve other joint tort feasors [citing cases], such however is not the situation here presented. * * * The question to be determined is whether such a voluntary dismissal of two of the alleged tort feasors upon payment of a valuable consideration, under the circumstances here shown, is sufficient to constitute a retraxit and bar recovery against the remaining defendants * * *’.

And further, 126 Cal.App.2d at page 253, 272 P.2d at page 51: ‘The rule therefore, would appear to be that where * * * the record discloses that a voluntary dismissal was entered as to two defendants in consideration of appellant having received some satisfaction in compensation for her injuries, all the requisite elements necessary to establish a retraxit, namely a voluntary dismissal and the receipt of some satisfaction, were present * * *.’

Mr. Justice Carter, speaking for the court in Gagnon Co., Inc., v. Nevada Desert Inn, 45 Cal.2d 448, 455, 289 P.2d 466, 472, said: ‘* * * a mere statement that the judgment of dismissal is ‘with prejudice’ is not conclusive'. That is equally true of the granting of a motion to dismiss ‘without prejudice’. To determine whether a dismissal is with or without prejudice, it is necessary to consider all the facts and circumstances surrounding the motion and order.

Under the facts and circumstances of the instant action, we are persuaded that the dismissal as to defendant Taylor released him from liability and that it likewise released the other defendants alleged to be jointly liable for the same acts of negligence. The record on the instant appeal containing no written consent to dismiss signed by the other parties affected thereby, and the plaintiff's motion for dismissal having been made during the deliberations of the jury, it appears that the dismissal could have been granted only under the provisions of Code of Civil Procedure, Section 581, subsection 4, which authorizes only dismissals ‘with prejudice’.

To us it appears that the nonsuit as to United was properly granted for the reason that plaintiff's evidence would not support a judgment in her favor against defendant United.

Because the retraxit as to Taylor precludes any further action against United even if the nonsuit as to it were erroneous, we deem it unnecessary to discuss the evidence in further detail.

The judgment is affirmed.

WHITE, Presiding Justice.

DORAN and FOURT, JJ., concur.

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