No. 12314 INTHE 

### SUPKEME COURT OF THE STATE OF MONTANA

NORA 

### MAKLE I~CCLUSKEY,Individually and asAdministratrix of the Estate of JOHN M. McCLOSKEY, Deceased, Plaintiff and Appellant,



### DENISE GROSS PORTER, Defendant and Respondent.

Appeal from: District Court of theFourth 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 

# JAN3O

## 1973 Filed: 

### ,! I-.

### Xr. Justice John Conway Harrison delivered the Opinion of the Court.
This 

### is an appeal from a judgment entered inthe district court of the fourthjudicial 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 inan automobile accident which occurred inMissoula on May 

### 14, 1970. Trialbefore 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 thejudgment entered pursuant tothe directed verdict, plaintiff appeals. The accident occurred as a result of defendant's failure to stopher vehicle ata stop sign, thereby colliding into the side of the ~cCloskeys' pickup truck. Defendant's failure to stop is not denied. The pickup truckwas turned on its side, but plaintiff and her husband did not feel it necessary tocallan ambulance. Some friends later took them to St. Patrick's Hospital inMissoula, 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 forbroken or sprained ribs and other injuries. In December 1970, theMcCloskeys were involved ina 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 theMcCloskeys, the parties entered into two agreements. These agreementswere entitled "Agreement and Release", one was signed by plaintiff and the otherby her husband. The agreements, identical printed forms, recited that the parties 

### "*

# ** intend that this agreement stateallterms 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 agreementswere 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 inParagraph 

### 1 [John Gross] arereleased from allliabilityresultingbecause of the accident. 

### This release isintended toapply to liabilityfor orbecause of property damage, death, bodily injurieswhich areknown toClaimant and bodily injuries of which Claimant 

### isnot yet aware. " (Emphasis added)

# . Under these agreements McCloskeys were paid a total of 

### $4,200 on the day the agreementswere executed, plus medical expenses for a definiteperiod following the accident, not toexceed certain dollar limits. In addition, they were issued checks totaling $674.60 formedical 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 forproperty damage only; that is, since two of the drafts equaled the exact amount herhusband had paid for the truck, chose draftswere intended to compensate the loss of the truck only. Defendant, on the otherhand, noted that the agreements inno way limitthe amount stated asbeing only forproperty damage. Rather, the agreements specificallyrefer to "all liabilityresultingbecause of the accident.!' plaintiffs main contentionwas that the agreements do not protect defendant, while defendant's main defense
was the agreements.Numerous issues areraised on appeal but the determinative issues are these: (1) whether the trialcourt erred indirecting
a verdict for defendant, and (2) whether the trialcourt correctly denied plaintiff's offer of proof. Before discussing these issues,
we must firstdetermine 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 shallbe 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 legalword 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 orjury, she cannot take advantage of the statute, Plaintiff's argument 

### iscircular; if
a jury was to determine that defendant was indeed negligent, the statutewould absolve her through her father's release, the result of which 

### isdiscussed later inthis opinion. 

### On the otherhand, ifa 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 afterher negligence
was judicially determined, the release of John Gross does not release defendant. In otherwords, Gross and defendant were not joint tortfeasors atthe time the releases were signed. That view misses the point. If, infact, a jury did find defendant negligent, shewould not be negligent from the date of thejudicialdetermination, 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 orher fatherwould dateback to the accident, not tothe date thejury found her negligent.Having found that John Gross was jointly liablewith defendant, we proceed to the effect of the releases. Does a release of Gross, release the defendant? Yes, it does. InMontana, the rulehas long been established that therelease of onejoint 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, 115Mont. 587, 590, 148 P.2d 559. Lisoski was an automobilepersonal injury case, There plaintiff was a passenger ina taxicab owned by the defendant. The taxicabwas involved inan intersection collisionwith another
carbelonging to Glasgow Motors. Plaintiff signed an instrument specificallyreleasing Glasgow Motors and "all other persons

# **

# * from allclaims". Plaintiff urged she be allowed to show that the releasewas not intended tocover the defendant. Answering that argument, this Court said:

IIThe language could not be more plain to show the intention tomake the release operate as to allher claims against allpersons which would include these defendants. 11 We believe the language of Clause (4) of the two "Agreement and 

### el ease" documents inthe instant case tobe no lessplainq 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 liabilityof other tort-feasors applies where a motor vehicles accident occasions an injury. It has been held that the amount paid for the release isnot material or open for question provided ithas been accepted in full satisfaction and discharge of the claim. The rulethat a release of one operates as a discharge of allliable for the injury isbased on theview that a release and discharge constitute a satisfaction of the claim, 1: Mere, there isno mention inthe 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 thosewords. InLisoski, this Court said: 

## "*+: 

# * the rule is that to save the right of recourse against the other feasors, the release must be inthe nature of a covenant not to sue or there must be words inthe releasewhich show that it isnot 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 draftsby which plaintiff and her husband were paid allrecite on theback of each these words:

II

By endorsement hereof payee hereby releases allclaims arisingout of the occurrence referred to on the facehereof against

1ISafeco 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 toallow 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 inBlack has repeatedly been affirmed. In Chisholm v. Vocational School, 103Mont. 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 forcompensation arejoint tort-feasors

## ,where the injured person accepts full satisfactionorwhat the law considers such

# * *

# * it is a bar to an action against the other

# ***

# *".We believe that rule tobe correctly stated. See also: Tanner
v. Bowen, 34 Mont. 121, 124, 

### 85 P. 876. As tothe determinative issues: Plaintiff, inher 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 othermedical expenses and her "difficulty" up to that time. That argument, however, goes merely tothe scope of the agreements, not their validity. Plaintiff alsoclaims the issue of fraudwas raised in the offer of proof. We do not find that issueraised, nor can itnow be raised on appeal. We note that plaintiff's offer of proof came atthe 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 releasebecause: (1) she did not intend to release Denise Gross; 

### (2) the releasewas intended tocoverjust 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 tobring a lawsuit within threeyears; (4) Safeco failed topay allthe bills itwas required to pay under the terms of the release. We find no error inthe trialcourt's denial of the offer of proof. Here, a pretrial order was prepared and executed by counsel; plaintiff made no contentions atthe pretrial stage as toher competency, as to fraud or mistake or lack of consideration for the release. These are allaffirmative matters which should have been raised as contentions atpretrial and toraise them when she did, was too late.Plaintiff reliesupon the recent case of Littsv. Pierce County, 

### 5 Wash.App. 531, 488 P.2d 785, 

### 790, and asks this Court toadopt the rule set down in that case. 

### We decline toconsider this authority for factually it 

### isnot applicable. In Litts, the plaintiff was injured in a two car accident atan intersection of two roads maintained by the county. Suit against the adverse driverwas settled and suitwas 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 rulethat a releaseby 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 asa fact either (1) that the injured party intended torelease alltortfeasors or (2) that the release constitued satisfaction of the obligation.lI Here, the trialcourt 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 toadopt this rule, the holding would be the same for only one act, not two independent acts of negligence, produced the injury. Further, that rule 

### isnot consistent with Montana

This Court inWebber 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, orvaried by par01 or extrinsic evidence, and that such writing supersedes alloralnegotiations concerning 

### its matter which preceded, accompanied, or ledup to its execution. II See also: West River Equip. Co, v. Holzworth, 134Mont. 582, 588, 335 P.2d 298; United Statesv. Willard E, Fraser Co., 308 F.Supp. 557, aff'd 459 F.2d 483. There must be some point atwhich a properly executed release, accompanied by adequate consideration, is immutable. The situationhere seems to indicate that plaintiff became dissatisfiedwith the "Agreement and Release" forms after they wereexecuted. 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 releaseswere 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 indirecting
a verdict fordefendant. The judgment of the district court 

### is affirmed. 

# '---k"--~"--a-&--

i A sociateJustic



# ................................ Associate Justices,

### Mr, Justice Haswell and Mr, Justice Daly specially concurring: We concur inthe 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 liabilityof father and daughter isinseparable and identical, both inkind 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 arejoint tortfeasorswhich they arenot, but because the liability of each 

### is identical, indivisible, and inseparable. Liability of the father 

### isimputed by statute, wholly derivative, and in likeamount 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 constitutesratification of the releases under section 

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

IIA voluntary acceptance of the benefit of a transaction 

### isequivalent toa consent toallthe obligations arising from it, so faras the facts areknown, or ought tobe known, totheperson accepting. 11



# / Associate Justices. 

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