EFFECT OF COMPROMISE WITH INDEPENDENT CONTRACTOR BY ONE INJURED BY OBSTRUCTION IN STREET.

Court of Appeals for Cuyahoga Countty.

#### Kouba v. City of Cleveland.

Decided December 16, 1920.

*Negligence*— Woman *Stepping from Street Car in Night Time*— Falls *over Pile of Sand, and is*Injured— *Contractor Primarily Liable and Recovery from Him Bars Action Against the City*— Accord *and Satisfaction.*

1. Where a person is injured by coming in contact with materials left in a street by an independent contractor in the execution of a contract with the city to repave a street, and such injured person receives compensation from the contractor in'comlete satisfaction of all claims against such contractor for damages arising from the injury, he can not later recover damages from the city for the same wrong.

2. In such case there is but one wrong and one injury, and there can be but one recovery. The contractor alone is the active wrong ” doer and the one primarily liable, the city’s liability being secondary only.

*Englmder & Bowden,*for plaintiff in error.

*W. B. Woods,*director of law, and *James Cassidy,*tor defendant in error.

Washburn, J.

Heard on error.

It appears from the record in this case that the city of Cleveland, desiring to repave one of its streets, entered into a contract with one R. P. Burnett. The contract provided that Burnett should be responsible for all damages occasioned through neglect or failure on his part, or of anyone in his employ; that he should take all necessary precautions to prevent injury tc. others. He further agreed to place colored lights and prope barricades at all excavations and other dangerous places, in or*572der to prevent accidents. The contract also provided that Be nett should indemnify and save the city harmless from and against all claims, demands, suits, actions, recoveries and 'judgments of every description brought or recovered against it -by reason of any act or omission of said contractor, his agents or employees, in the execution of the work, or in consequence of any negligence or carelessness in guarding the same, or by reason of any insufficient protection.

It further appears that in performing the contract Burnett caused piles of sand, gravel and crushed stone to be placed on a portion of said street at a place where the cars of the Cleveland Railway Company regularly stopped to discharge and take on passengers, and that on September 25, 1918, there were no warning lights or watchmen to advise users of the street of the condition thereof, which is claimed to have been made dangerous for use by reason of said improvement beinb made; that the plaintiff, Grace Kouba, being a passenger upon a car of the Cleveland Eailway Company, alighted from it in the night season, at said crossing, came in contact with the piles of material, was thereby caused to fall and suffer injury.

For the purposes of this opinion, we assume that the circum stances were such that the plaintiff was entitled to recover damages for injuries caused by the negligence of Burnett in failing to properly guard said materials or warn the public in the use of the street.

It further appears from the record that after such injuries, plaintiff, claiming that the railway company was responsible for the same, succeeded in inducing the railway company to pay her $300, for which she gave the company a covenant not to suit it; that later she claimed that Burnett was also liable to her for said injuries, and, after negotiating with him, for and in consideration of $125 paid to her by him, entered into a covenant not to sue, in which covenant she recited these same injuries and the manner in which she received them, set forth her claim that Burnett and the city of Cleveland were liable therefor and that Burnett delied liability, and agreed for herself, her heirs, executors, administrators and assigns that she would not institute, maintain *573or prosecute any action against said Burnett to recover damages for said injuries, or for any other matter arising out of same. It was also stated in her said covenant not to sue that, she did not receive the $125 in payment or otherwise for her injuries, but only in consideration of her not suing, and that it was not her intention to release the city of Cleveland from any claim that she had against it for the injuries she had sustained, and that by acceptance of said money she did not intend to waive any rights of any hind or character that she might have against the city of Cleveland,- growing out of said action.

Upon being-sued, the city of Cleveland set forth in its answer as its second defense the fact that Burnett was a contractor, having the exclusive control over the method and manner and means of doing the work, that he had agreed to save the city harmless from any liability for damages for any injuries sustained by anyone in the use of said street, by reason of the condition in the street created by said contractor while the contract was being performed, and that her injuries were caused solely by reason of conditions created in the street by the contractor in doing the work of grading, draining and paving the street under said contract. The answer' also sets forth the fact that plaintiff had presented a claim to the railway company and made settlement with it, and had also made claims against Burnett, the contractor, and, for a consideration received, agreed not to sue him for injuries.

Upon the trial of the case these facts were proven, and the trial court, being of the opinion that plaintiff’s settling with Burnett, and for a consideration agreeing not to sue him, released the city from any liability to her for said injuries, arrested the evidence from the jury and rendered judgment in favor of the city.

The matter is now before this court, the claim being that the lower court, in rendering such judgment, committed error, for which the judgment should be reversed.

As we view this matter, assuming that plaintiff was entitled to recover from someone for injuries received by reason of negligence in not properly guarding said improvement and warn*574ing tbe public in reference to the use of the street, we think that not only by the terms of the contract between the city and Burnett, but by operation of law independent of the agreement to that effect in said contract, Burnett was the party, as between the city and himself, who was primarily liable to respond in damages for her injuries. The city was liable only because the law made it responsible for the negligence of the contractor, but its liability was secondary, and if it had been sued in the first instance, and recovery had against it, it could recover against Burnett, the contractor, the perpetrator of the wrong. *Morris*v. *Woodburn,*57 Ohio St., 330, and *Bello*v. *Cleveland post.*

We are clearly of the opinion that if she had sued the party primarily responsible for her injuries, and had received satisfaction from such party, she could not then have sued the city and recovered for the same injury. We stated our view of this matter in the ease of *Bello*v. *Cleveland, supra,*as follows:

> “Where there is but one wrong and one injury, there can he but one satisfaction; it would be different if both were active and independent wrongdoers, or if there were concerted action, but where one is by statute simply made liable for the wrongful acts of another, and that other responds in damages for his wrong to the injured party, there can be no further recovery.”

In this case, her agreement not to sue the party primarily, liable, where that agreement was supported by a valuable consideration, which was received and retained by her, is as complete a satisfaction as would have been a recovery of a judgment against the contractor and the payment of the same by the contractor to her. ’ The city was not an active wrongdoer, either independently or in concert with the contractor; its position, so far as this question is concerned, was in the nature of a surety for the wrongful acts of the contractor. She was charged in law with- full knowledge of that situathm, and when, .with such knowledge and for a valuable consideration, she bound herself not to enforce her claim against the wrongdoer, who was ultimately liable therefor, she ought not, in conconanee with good morals and a sound public policy, to be permitted to recover against one whose liability depended upon her right to recover against the wrong doer,

Dunlap and Vickery, J. J., concur.