Carroll v. Kerrigen

Johnson, J., delivered the opinion of the Court. Margaret J. Kerrigen, the appellee, on June 21st, .1931, while upon the premises of Douglas Gordon Carroll, Sr., as a domestic, suffered severe personal injuries from burns, as a result of the ignition of certain gasoline upon the terrace in front of the Carroll dwelling, to recover damages for which she instituted suit against Mr. Carroll, his wife, Emily, and their infant son, Douglas Gordon Carroll, Jr., in the Circuit Court for Baltimore County. That proceeding did not reach the trial stage, the lower court having in effect held the declaration demurrable as to Douglas G. Carroll, Sr., and, as the plaintiff declined to amend her declaration, a judgment ⁶³⁰ was entered in Mr. Carroll’s- favor for costs. Upon appeal to this court that judgment was affirmed in an opinion by Judge Urner, Kerrigen v. Carroll, reported in 168 Md. 682 , 179 A. 53 .

She subsequently filed three successive amended declarations against Mrs. Emily Carroll and Douglas Gordon Carroll, Jr., demurrers to the first two of which were sustained, but the third having been held good on demurrer, the cause proceeeded to trial, which resulted in a judgment in her favor. Upon this appeal therefrom, nineteen exceptions are presented for review. The first of these relates to the trial court’s action in overruling the demurrer to the third amended declaration, the second to the sustaining of a demurrer interposed by appellee (plaintiff below) to appellants’ plea of release, while the remainder pertain to rulings upon the prayers. In our consideration of the case, the exceptions will be discussed in the order above named.

The declaration contains two counts, in the first of which it is alleged that, for somé time prior to the commission of the wrongs therein mentioned, the plaintiff was an employee in the home of Douglas Gordon Carroll, Sr., and his wife, and was required to take orders from Mrs. Carroll; that on June 21st, 1931, while pursuing her customary duties, she was directed by Mrs. Carroll to bring to her upon the lawn a certain container of gasoline, and at the time of its delivery the latter knew that plaintiff was being ordered from a place of safety upon ground which Mrs. Carroll and her son were to make dangerous by their subsequent acts, but this was unknown to the plaintiff; that after delivering the container of gasoline, Mrs. Carroll, without any warning to the plaintiff- as to the use she intended to make of it, “immediately threw and strewed the same ■ about the lawn in close proximity” to her, and, before she could reach a place of safety, Douglas Gordon Carroll, Jr., infant son of Emily Carroll, who was present and aiding bis mother about the lawn and acting under her orders, ignited the gasoline which had been thus thrown upon ⁶³¹ the lawn by the mother, and caused it to burn and explode, in consequence of which plaintiff’s clothing caught fire, and she was severely burned about the body and limbs, and suffered severe, painful, and permanent injuries without any negligence on her part contributing thereto. The second count is in effect similar to the first and charges that, on the date in question, while the plaintiff in her capacity as a domestic servant was pursuing her duties in connection with her employment, she was directed by Mrs. Carroll to deliver to her upon the lawn a container of gasoline, and did make such delivery; that thereupon Mrs. Carroll threw the gasoline on the lawn near the plaintiff, and the son, acting under his mother’s directions, before the plaintiff had reached a place of safety, set fire to it; that neither of the defendants gave any notice or warning to the plaintiff of their intention to set fire to the gasoline, although they and each of them knew that gasoline, when ignited, would imperil her life and person. Appellants insist that the demurrer to this declaration should have been sustained, because of a misjoinder of actions, asserting that the first count alleges a breach of duty arising under a contract between plaintiff and Mrs. Carroll, while the second count is in tort against Mrs. Carroll and her infant son, and that there is also for the same reason a misjoinder of parties in these counts. This court does not so interpret them.

Plaintiff’s employment referred to in each count can in no way make the cause of action arise ex contractu, in view of the other allegations, and, in our judgment, its sole effect is unimportant, except for the showing that she was rightfully upon the premises, because of which the defendants owed her a greater duty than was due a trespasser or a mere licensee. Moreover, we feel that both of these counts are in tort, and that their allegations definitely and sufficiently allege conduct on the part of each of the defendants of such character as to charge them with negligence causing her injuries, for, as stated by this court, speaking through Judge Parke, in Lanasa ⁶³² v. Beggs, 159 Md. 311 , at page 319, 151 A. 21 , 25: “Where several persons unite in an act which constitutes a wrong to another, each must assume and bear the responsibility for the misconduct of all, and the party injured may pursue all in one action or any one of them severally, or any number less than the whole without regard to the participation of the others.” See also volume 1, Cooley on Torts (4th Ed.) secs. 64, 66, and 75; 46 C. J., secs. 169, 170, pp. 1329 to 1332, inclusive. The court’s action in overruling the demurrer to the declaration was, therefore, correct. In the second plea of the defendants it was alleged that, after the claim had accrued and prior to the suit, the plaintiff had by deed released them therefrom.

In compliance with a demand for a bill of particulars under this plea, they alleged that, prior to the institution of the suit, on September 15th, 1933, plaintiff made claim against the defendants and also against Douglas Gordon Carroll, Sr., her employer; that, after the claim was made against the said Carroll, Sr., his wife, and son, the plaintiff, for a valuable consideration, released and discharged Douglas Gordon Carroll, Sr., from any claim or demand whatever “for the same tort under which she now seeks to hold the defendants.” The release to Carroll, Sr., is then incorporated and purports to release him from any “consequence of bums” received by the plaintiff on June 21st, 1931, the consideration mentioned therein being $16.67. To this plea, the plaintiff interposed a demurrer, which was sustained by the court, and this action occasioned the second exception. Appellants assert that, since the plaintiff could have but one satisfaction for her injuries and did by her release receive settlement from Douglas Gordon Carroll, Sr., this defense is available to them and the court erred in sustaining the demurrer to the plea, while appellee contends that the release is entirely unavailing to these appellants, because the release of one not in fact liable is no protection whatsoever to those who are liable; that in the present case the pleadings in no way allege any participation by ⁶³³ Douglas Gordon Carroll, Sr., in the acts of negligence which resulted in her injury. Upon this subject, the authorities are in direct conflict. 23 R. C. L., Release, sec. 35; 53 C. J., Release, sec. 78, p. 1260; annotation, Tort-Feasors, 50 A. L. R. p. 1093; annotation 66 A. L. R. p. 213.

In treating the subject in R. C. L., supra, the author states: “The question of whether a release to, or a satisfaction from, a person not shown to be liable as a joint wrongdoer comes within the rule that a discharge of one joint wrongdoer is the discharge of the others is attended with no little difficulty, on principle, and the authorities are more or less conflicting. Many cases hold that the rule applies only where the money is paid by, or the release executed to, one who is himself actually guilty of the wrong. In other words,, a release to or a settlement with one not in fact liable to the releasor or not shown to be a joint tort-feasor in, although perhaps connected with, the wrong committed, does not destroy the right of action against those who otherwise are liable. This would not appear to be unreasonable, and it seems to be supported by th'e weight of authority.

And the conflicting decisions may, perhaps, be harmonized by reference to the distinction, now so widely recognized, between the effect of a release for a consideration not intended as compensation, and the effect of the receipt of a sum of money regarded as compensatory damages.” However, in view of the decision of this court in Elling v. Travers, 162 Md. 597 , 160 A. 789 , the question can no longer be regarded as an open one in Maryland. In that case the plaintiff had sustained injuries because of a collision between a taxicab in which she was a passenger and an automobile owned by Travers. After the accident, she and her husband, secured counsel to enforce their claims for damages against those who might be liable therefor. The attorney thus employed was approached by an agent for the company carrying the insurance for Travers against liability for damages caused by the operation of his automobile, and Elling ⁶³⁴ and wife executed a covenant not to sue the insured.

Later they brought suit against the taxicab company to recover for their injuries, and the defendant by special pleas set up the settlement with Travers and his insurer as a bar to action. Demurrers having been overruled to those special pleas, the appellants then filed suit in equity, asking that their agreement or covenant not to sue be set aside, because its execution was induced by fraud or by an erroneous, if innocent, statement by counsel for the insurance company as to its legal meaning and effect. A demurrer to the bill of complaint was sustained and the bill dismissed. On appeal to this court, Judge Offutt, in the course of the opinion, said, 162 Md. 597 , at page 605, 160 A. 789 , 791: “The effect of such an agreement would be to release the taxicab company also in the event, and only in the event, that some tortious act on the part of the Traverses contributed to the accident in which Mrs. Elling was injured.

If it did so contribute, then, under the case of Lanasa v. Beggs, 159 Md. 311 , 151 A. 21 , the covenant not to sue the Traverses releases it. If it did not so contribute, and the accident was occasioned solely by the tort of the taxicab company, it had no such effect, for the doctrine that the release of one joint tortfeasor releases all has no application unless there is a joint tort.” It follows that the court’s action in sustaining the demurrer to the appellants’ second plea was free from error. This brings us to a consideration of the prayers. At the close of the plaintiff’s case, appellants offered seven prayers, numbered A, B, C, D, E, F, and G. The first of these challenged the legal sufficiency of the plaintiff’s evidence and sought a directed verdict for both defendants.

Prayer D sought an instruction for Mrs. Carroll that the plaintiff had offered no evidence legally sufficient to establish primary negligence against her under the first count of the declaration, and their E prayer was similar, except that it was made applicable to Douglas Gordon Carroll, Jr. Prayer F was similar ex ⁶³⁵ cept that it applied only to the right to recover against Mrs. Carroll under the second count, while their G prayer sought an instructed verdict for Douglas Gordon Carroll, Jr., under the second count of the declaration, because the plaintiff had offered no evidence of primary negligence on his part legally sufficient to entitle her to recover. Their H prayer sought an instructed verdict for both defendants upon the ground that it appeared from the uncontradicted evidence in the case that the plaintiff was guilty of negligence directly contributing to her own injury. To the court’s action in refusing these eight instructions, exceptions 3 to 10, inclusive, were taken, but since the appellants thereafter proceeded with their defense, it must be held that they thereby waived their right to have those