(dissenting).
The majority opinion follows the present rule in Kentucky as it was evolved and stated in Kingins v. Hurt, Ky., 344 S.W.2d 811 (1961). I would prospectively change the rule announced in that case for two reasons: First, the result obtained by application of the rule is questionable, and, second, subsequent decisions concerning the relationship of joint tort-feasors have thrown the result more out of harmony in that area of tort law.
Where concurrent wrongdoers have caused the same loss and are regarded as “joint tort-feasors” for the sole reason that they can be joined, to regard the release of one for less than full satisfaction of the damage caused, to also release the other is harsh in the light of current realities. This rule compels the plaintiff either to forego any opportunity of obtaining what he can get from one defendant without suit or give up his entire claim against the other without full compensation. The fear of double recovery is meaningless since the amount paid under the release must be credited to the second tort-feasor in any case. The argument that the plaintiff should not be permitted to make piecemeal collections from different defendants is pointless when he is allowed to do precisely that after judgment. The Kingins rule has the virtue of eliminating swearing matches concerning what was understood in the face of a writing. Releases, however, are usually signed by plaintiffs ignorant of the law and without legal advice. See Prosser, Handbook of the Law of Torts, Sec. 49, 301-305.
Orr v. Coleman, Ky., 455 S.W.2d 59 (1970), as explicated in Cox v. Cooper, Ky., 510 S.W.2d 530 (1974), wherein the question of the settling joint tort-feasor was considered in the aspect of a trial concerning the liability of the nonsettling tort-feasor, appears to me to confirm the dubious status of the Kingins rule. Since it is a rule of contract, I would be willing to hold prospectively that henceforth, where the release contains no mention of the effect on the liability of another wrongdoer, such non-mentioned wrongdoer should have the burden of showing that the amount paid' for the release constituted satisfaction of the plaintiff’s damage before he would be deemed protected by the instrument of release.