Young v. Anderson

RICE, C. J.

Respondent brought this action to recover for the hire of a horse and buggy, and also for damages resulting to the property while in the possession of appellant as bailee. Appellant answered and filed a counterclaim, alleging damages for breach of warranty that the horse was gentle and trustworthy; that it was in fact fractious and unmanageable, on account of which he was injured while exercising due care on his part.

It appears that the injury occurred in the streets of Nampa, upon the approach of an interurban car operated *524 by the Boise Valley Traction Company. At the trial, during cross-examination of appellant, apd over an objection, the court received in evidence a copy of a paper purported to have been executed by appellant, in which he acknowledged receipt of fifty dollars from the Boise Valley Traction Company “in full settlement, discharge and release of every and all claim for damages on account of injury sustained” at the time of the accident, in consideration of which appellant “releases, discharges and acquits the Boise Valley Traction Company ". . . . from every and all liability, claim and demand, whether contingent or. accrued, on account of said injury.or injuries, or any injuries.” This paper, being a copy, of course, was incompetent in the" absence of proof that the original could not be obtained, and it was also improperly introduced as a part of the cross-examination of appellant. Appellant has not urged these objections in this court, and we assume he has waived them; but he does urge that the document was inadmissible in evidence for any purpose, and that its admission was harmful and prejudicial.

The document is to be construed as a release, having the effect of an agreement not to sue, and not as an acknowledgment of satisfaction for the injuries received. The Boise Valley Traction Company was not in any sense a joint tortfeasor with respondent. The release, therefore, was not a bar to the counterclaim against respondent. (Miller v. Beck Co., 108 Iowa, 575 , 79 N. W. 344 ; City of Chicago v. Babcock, 143 Ill. 358 , 32 N. E. 271 ; Pogel v. Meilke, 60 Wis. 248 , 18 N. W. 927 ; Murphy v. Penniman, 105 Md. 452 , 121 Am. St. 583, 66 Atl. 282 ; Snow v. Chandler, 10 N. H. 92, 34 Am. Dec. 140 ; Pittsburg Rys. Co. v. Chapman, 145 Fed. 886 , 76 C. C. A. 418 ; 34 Cyc. 1088.)

Since, however, appellant was only entitled to receive compensation for his injuries received, thp consideration received from the Boise Valley Traction Company for the release of any claim against it operated to reduce pro tanto the amount of any damages he was entitled to recover against any other tort-feasor responsible for his injuries, and this is true whether the tort-feasórs be joint'or independent. The re *525 lease, therefore, was admissible in evidence. (Murphy v. Penniman, supra; Snow v. Chandler, supra; City of Chicago v. Babcock, supra; Miller v. Beck & Co., supra; Ellis v. Esson, 50 Wis. 138 , 36 Am. Rep. 830 , 6 N. W. 518 .)

Appellant specifies as error the failure of the court to give certain instructions requested by him, but the instructions given by the court contained the substance of the requested instructions so far as they stated the law applicable to the case.

We do not find any prejudicial error in the record, and the judgment is affirmed. Costs awarded to respondent.

Budge, McCarthy, Dunn and Lee, JJ., concur.