Long ago we adopted the rule that a plaintiff could release one joint tort-feasor without releasing the others, either before or after judgment (Bland v. Lawyer-Cuff Co.,72 Okla. 128, 178 P. 885; City of Tulsa v. McIntosh et al., 90 Okla. 50,215 P. 624), and no harm can be done now by going one step further and permitting a plaintiff to settle as to one joint tort-feasor and have the settlement put in judgment without prejudice to the right to pursue the other joint tort-feasors in a separate action.
Every safeguard was thrown about the settlement in the action against the railroad to protect the right to proceed against the other tort-feasors; and to say that because there can be but one satisfaction of a judgment, when the record showed that it was never intended that the judgment taken was a full and complete satisfaction of the death claim as to all tort-feasors, might be logical, but it is not common sense. Here the railroad desired its settlement to go to judgment, but had no intention to satisfy the plaintiff's claim in full as to the other tort-feasors in the accident. The defendants in this case reap where they have not sown, and are being relieved from possible liability when it was not intended. If we hold that the rule laid down in Cain v. Quannah Light Ice Co.,131 Okla. 25, 267 P. 641, cuts off the right to maintain a second action, regardless of the plain intention of the parties in the first action to preserve the right to sue other persons who may be liable for the tort, I think that case should be overruled insofar as it prohibits such action. Colby v. Walker, 86 N.H. 568,171 A. 774, 104 A.L.R. 840.
I respectfully dissent. *Page 350