No. 12314 

IN THE SUPKEME COURT OF THE STATE OF MONTANA 

NORA MAKLE I~CCLUSKEY, Individually 

and as Administratrix of the Estate 

of JOHN M. McCLOSKEY, Deceased, 

Plaintiff and Appellant, 

DENISE GROSS PORTER, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant : 

Boone, Karlberg and Haddon, Missoula, Montana. 

Sam E. Haddon argued, Missoula, Montana. 

For ~espondent : 

Worden, Thane, Haines and Williams, Missoula, Montana. 

Shelton C. Williams argued, Missoula, Montana. 

Submitted: November 30, 1972 

Decided : 

, ttd j ~5 

JAN 3 O 1973 

Filed: ,! I-. 
Xr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment entered in the district court 

of the fourth judicial district, county of Missoula. Plaintiff, 

Nora Marie McCloskey, brought the action against defendant Denise 

Gross Porter, individually and as administratrix of the estate 

of her deceased husband, John M. McCloskey, for personal injuries 

sustained by each of them in an automobile accident which occurred 

in Missoula on May 14, 1970. Trial before a jury began on April 

19, 1972. During the presentation of defendant's case, the trial 

judge granted defendant's motion for a directed verdict after 

denying plaintiff's offer of proof regarding alleged ambigaity'in 

certain agreements. From the judgment entered pursuant to the directed verdict, plaintiff appeals. 

The accident occurred as a result of defendant's failure to 

stop her vehicle at a stop sign, thereby colliding into the side 

of the ~cCloskeys' pickup truck. Defendant's failure to stop is 

not denied. The pickup truck was turned on its side, but plaintiff 

and her husband did not feel it necessary to call an ambulance. 

Some friends later took them to St. Patrick's Hospital in Missoula, 

where both were treated and released, In June 1970, John McCloskey 

was hospitalized for a few days with neck problems which had apparently responded to treatment by the time of his death. Over a 

course of several months, plaintiff was treated for broken or 

sprained ribs and other injuries. 

In December 1970, the McCloskeys were involved in a separate 

accident wherein John McCloskey received injuries resulting in 

his death. Neither that accident nor the injuries sustained therein 

are a part of this litigation. 

Shortly after the accident in question, John McCloskey contacted 

the adjuster for Safeco Insurance Company, defendant's insurer. 

As a result of several meetings between the adjuster and the McCloskeys, the parties entered into two agreements. These agreements 
were entitled "Agreement and Release", one was signed by plaintiff 

and the other by her husband. The agreements, identical printed 

forms, recited that the parties "* * * intend that this agreement 

state all terms of their mutual settlement of demands made against 

John Gross", the father of defendant. At the time of the accident, 

defendant was a minor. She was insured under her father's automobile 

insurance policy with Safeco Insurance Company, 

These agreements were executed on May 28, 1970, fourteen 

days after the accident occurred, In pertinent part, both agreements state: 

"(4) Claimant and Claimant's Spouse agree as 

follows : 

"(a) Those named in Paragraph 1 [John Gross] 

are released from all liability resulting because 

of the accident. This release is intended to apply 

to liability for or because of property damage, 

death, bodily injuries which are known to Claimant 

and bodily injuries of which Claimant is not yet 

aware. " (Emphasis added) . Under these agreements McCloskeys were paid a total of 

$4,200 on the day the agreements were executed, plus medical expenses for a definite period following the accident, not to exceed 

certain dollar limits. In addition, they were issued checks 

totaling $674.60 for medical expenses incurred after the agreements were signed. However, of that amount a check for $406.90 

was not negotiated, on advice of counsel. 

Plaintiff maintained that a portion of the compensation 

received was for property damage only; that is, since two of the 

drafts equaled the exact amount her husband had paid for the truck, 

chose drafts were intended to compensate the loss of the truck only. 

Defendant, on the other hand, noted that the agreements in no way 

limit the amount stated as being only for property damage. Rather, 

the agreements specifically refer to "all liability resulting because of the accident.!' plaintiffs main contention was that the 

agreements do not protect defendant, while defendant's main defense 

was the agreements. 
Numerous issues are raised on appeal but the determinative 

issues are these: (1) whether the trial court erred in directing 

a verdict for defendant, and (2) whether the trial court correctly 

denied plaintiff's offer of proof. Before discussing these issues, 

we must first determine the effect of the agreements signed by 

plaintiff and her husband when only the defendant's father's name 

appears on the face of each agreement. 

Section 31-131(b), R,C.M, 1947, provides that the negligence 

of a minor shall be imputed to the person signing the application 

for a driver's license, making that person jointly and severally 

liable for any damages caused by the minor. John Gross had signed 

defendant's application, and, by statute, would be liable for 

damages caused by his daughter's negligence. Plaintiff argues that 

negligence, being a legal word of art, cannot exist until it is 

determined by a trier of the facts; that is, since defendant had 

not been adjudged negligent by a judge or jury, she cannot take 

advantage of the statute, Plaintiff's argument is circular; if 

a jury was to determine that defendant was indeed negligent, the 

statute would absolve her through her father's release, the result 

of which is discussed later in this opinion. On the other hand, 

if a juryd&rmined she was not negligent, the result would be the 

same. Moore v, Jacobsen, 127 Mont. 341, 263 P,2d 713. 

The thrust of plaintiff's argument is that since John 

Gross could not be jointly and severally liable for the damages 

caused by the negligence of defendant until after her negligence 

was judicially determined, the release of John Gross does not 

release defendant. In other words, Gross and defendant were not 

joint tortfeasors at the time the releases were signed. That 

view misses the point. If, in fact, a jury did find defendant 

negligent, she would not be negligent from the date of the judicial determination, but rather from the date of the tort. Sleeper 

v. Woodmansee, 11 C.A.2d 595, 54 P.2d 519, 521, Any release of 

defendant or her father would date back to the accident, not to the 

date the jury found her negligent. 
Having found that John Gross was jointly liable with defendant, we proceed to the effect of the releases. Does a release 

of Gross, release the defendant? Yes, it does. In Montana, the 

rule has long been established that the release of one joint tortfeasor releases the others, unless there are clear provisions in 

the release to the contrary. Black v. Martin, 88 Mont. 256, 266, 

292 P. 577; Lisoski v. Anderson, 112 Mont. 112, 117,118, 112 P.2d 

1055; Beedle v. Carolan, 115 Mont. 587, 590, 148 P.2d 559. 

Lisoski was an automobile personal injury case, There 

plaintiff was a passenger in a taxicab owned by the defendant. 

The taxicab was involved in an intersection collision with another 

car belonging to Glasgow Motors. Plaintiff signed an instrument 

specifically releasing Glasgow Motors and "all other persons * * * 

from all claims". Plaintiff urged she be allowed to show that the 

release was not intended to cover the defendant. Answering that 

argument, this Court said: 

I I The language could not be more plain to show 

the intention to make the release operate as to 

all her claims against all persons which would 

include these defendants. 11 

We believe the language of Clause (4) of the two "Agreement 

and el ease" documents in the instant case to be no less plainq 

6 Blashfield, Automobile Law and Practice, 3rd Ed, 5257.52,states 

the rule in this manner: 

"The general rule that, in the absence of statute, 

the release of one tort-feasor extinguishes and 

discharges the liability of other tort-feasors 

applies where a motor vehicles accident occasions 

an injury. It has been held that the amount paid for 

the release is not material or open for question 

provided it has been accepted in full satisfaction 

and discharge of the claim. The rule that a release 

of one operates as a discharge of all liable for the 

injury is based on the view that a release and discharge constitute a satisfaction of the claim, 1: 

Mere, there is no mention in the release agreements of any 

reservation regarding possible future action against defendant, as 

opposed to an action against her father. Certainly, it cannot be 

asserted here that Clause (4), heretofore quoted, should be given 

any meaning different from the plain import of those words. In 
Lisoski, this Court said: 

"* +: * the rule is that to save the right 

of recourse against the other feasors, the 

release must be in the nature of a covenant 

not to sue or there must be words in the 

release which show that it is not in full 

satisfaction of the claim and that he [claimant] 

does not thereby discharge the others from 

liability." 

Here, we do not find the release agreements contained any such 

covenants, Furthermore, the drafts by which plaintiff and her 

husband were paid all recite on the back of each these words: 

I I By endorsement hereof payee hereby releases 

all claims arising out of the occurrence referred to on the face hereof against 

1 I Safeco Insurance Company of America 

"and, where applicable, its insured. " 

Tn and of itself, such a statement on the reverse of a check 

would be suspect. But,when coupled with the clear and unambiguous 

language of the release agreements, the intent is obvious. We 

find it difficult to allow plaintiff to endorse five drafts 

before raising questions concerning the effect of the language 

appearing on them. 

This Court has considered such releases and their effect 

many times. Black v. Martin, 88 Mont. 256, 292 P. 577, presents 

a learned and authoritative account of the law concerning releases. 

The validity of the rules stated in Black has repeatedly been 

affirmed. In Chisholm v. Vocational School, 103 Mont. 503, 511, 

64 P.2d 838, we said: 

 h he voluntary payment of a debt by one not 

legally liable to do so nevertheless extinguishes 

the debt as to the creditor 9; * * and the result 

is the same where one of two joint tort-feasors 

pays the damages claimed. * * JC 

"1n a case such as this, if the two parties to 

whom the injured person looks for compensation 

are joint tort-feasors , where the injured person 

accepts full satisfaction or what the law considers such * * * it is a bar to an action against 

the other ** * *". 
We believe that rule to be correctly stated. See also: Tanner 

v. Bowen, 34 Mont. 121, 124, 85 P. 876. 

As to the determinative issues: Plaintiff, in her offer of 

proof, contended she should not be bound by the releases, She 

offered to show, by oral testimony, a situation different than 

that appearing on the face of the "Agreement and ele ease" forms, 

She argues further that the validity of the agreements was in 

dispute. Plaintiff relies upon section 93-401-13, R.C.M, 1947, 

regarding when evidence other than the contents of a written 

agreement may be introduced; and, section 93-401-17, R.C.M. 1947, 

noting that surrounding circumstances should be considered, At 

the same time, plaintiff contends that one of the agreements was 

to cover the damage to the truck, and the other medical expenses 

and her "difficulty" up to that time. That argument, however, 

goes merely to the scope of the agreements, not their validity. 

Plaintiff also claims the issue of fraud was raised in the offer 

of proof. We do not find that issue raised, nor can it now be 

raised on appeal. 

We note that plaintiff's offer of proof came at the end 

of the case, and after defendant had made a motion for a directed 

verdict. The offer of proof purported to show plaintiff was 

not bound by her release because: (1) she did not intend to 

release Denise Gross; (2) the release was intended to cover just 

property damage, medical bills, and pain and suffering to the 

date of the release; (3) she was allegedly told that even if she 

signed a release she would be able to bring a lawsuit within 

three years; (4) Safeco failed to pay all the bills it was required to pay under the terms of the release. 

We find no error in the trial court's denial of the offer 

of proof. Here, a pretrial order was prepared and executed by 

counsel; plaintiff made no contentions at the pretrial stage as 

to her competency, as to fraud or mistake or lack of consideration 

for the release. These are all affirmative matters which should have 

been raised as contentions at pretrial and to raise them when she 

did, was too late. 
Plaintiff relies upon the recent case of Litts v. Pierce 

County, 5 Wash.App. 531, 488 P.2d 785, 790, and asks this Court 

to adopt the rule set down in that case. We decline to consider 

this authority for factually it is not applicable. In Litts, 

the plaintiff was injured in a two car accident at an intersection 

of two roads maintained by the county. Suit against the adverse 

driver was settled and suit was then instituted against the 

county, alleging that the injuries resulted from the negligent 

acts and omissions of the county. The court ruled: 

It* * * we adopt the rule that a release by an 

injured party of one of several concurrent tortfeasors, whose obligation is solidary, does not 

release the other concurrent tort-feasors unless 

it can be established as a fact either (1) that 

the injured party intended to release all tortfeasors or (2) that the release constitued satisfaction of the obligation. l I 

Here, the trial court distinguished Litts, where there 

were separate independent acts of negligence by two separate 

actors producing the injury, and the instant case. Even if 

we were to adopt this rule, the holding would be the same for 

only one act, not two independent acts of negligence, produced 

the injury. Further, that rule is not consistent with Montana 

This Court in Webber v. Killorn, 66 Mont. 130, 132, 212 

P. 852, said it is elementary: 

"* fc * that when a contract has been reduced to 

writing the contents of such writing cannot be 

added to, contradicted, altered, or varied by 

par01 or extrinsic evidence, and that such writing 

supersedes all oral negotiations concerning its 

matter which preceded, accompanied, or led up to 

its execution. I I 

See also: West River Equip. Co, v. Holzworth, 134 Mont. 582, 588, 

335 P.2d 298; United States v. Willard E, Fraser Co., 308 F.Supp. 

557, aff 'd 459 F.2d 483. 

There must be some point at which a properly executed 

release, accompanied by adequate consideration, is immutable. 

The situation here seems to indicate that plaintiff became dissatisfied with the "Agreement and Release" forms after they were 
executed. But the fact remains that the instruments were signed 

and latent discontent cannot be grounds for alteration of their 

express terms. 

Therefore, we find the releases were valid and effective 

with regard to defendant and constituted complete satisfaction 

of plaintiff's claim. Plaintiff's offer of proof attempting to 

vary the express terms of the written release agreements was 

properly rejected. 

Finally, we hold the district court did not err in directing 

a verdict for defendant. 

The judgment of the district court is affirmed. 

'---k"--~"--a

i A sociate Justic 

................................ Associate Justices, 
Mr, Justice Haswell and Mr, Justice Daly specially concurring: 

We concur in the result but not in the rationale of the 

majority opinion. 

In our view, the release agreements here bar plaintiff's 

action on two grounds: (1) the liability of father and daughter 

is inseparable and identical, both in kind and in amount, so that 

settlement and release of one must necessarily constitute settlement and release of the other, and (2) ratification of the release 

agreements. 

The releases here bar plaintiff's action, not because 

Denise and her father are joint tortfeasors which they are not, 

but because the liability of each is identical, indivisible, and 

inseparable. Liability of the father is imputed by statute, 

wholly derivative, and in like amount to that of the daughter. 

Accordingly, settlement of the one claim must necessarily include 

settlement of the other. 

Additionally, the acceptance of pa.yment and the conduct 

of the parties constitutes ratification of the releases under 

section 13-325, R,C,M. 1947, which provides: 

I I A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, 

or ought to be known, to the person accepting. 11 

/ Associate Justices. f