dissenting:
I regret that I cannot agree with my associates upon the proper determination of this case. I appreciate the fact that the solution hangs upon the proper interpretation of Express Company v Beckwith, 100 Oh St 348. One difference that exists' between the Beckwith case and the case at bar is in the nature of the contract made for the settlement, there being in the case at bar no reservation of the right to pursue the other joint or concurrent tort-feasors as there was in- the Express Company case. The Express Company case decided by Judge Wanamaker is examined and decided with his usual clarity and broad consideration of the'principles involved. I cannot refrain from quoting from p. 352:
“A decided case is worth as much as it weighs in reason and righteousness and no more. It is not enough to say, *31‘Thus saith the Court’. It must prove its right to control in every given situation by the degree to which it supports the right of a party violated and serves the cause of justice as to all parties concerned.”
The release signed by the plaintiff appears in full at the bottom of page 2 and the top of page 3 of the majority opinion. The administratrix sought and secured in the Probate Court authority to settle for the claim arising out of the alleged wrongful act of Jarvis Ingle for his participation in the negligent act of Jarvis and'the Buckeye Light & Power Company causing the death of the decedent. There is no authority of the Court sought or granted to settle the claim against the Power Company, and I have some doubt as to a right to release the Power Company unless there was a direct authority given by the Probate Court to do so.
The four syllabi of the Express Company case are set out in the opinion of the majority, and it is not necessary to restate them.
Syllabus 1 states that a written release in general and unqualified terms “is presumed in law to be a release for the benefit of all wrongdoers”. I cannot bring myself to the conclusion that any presumption arises, under the authority granted by the Probate Court, that the release is a release for the benefit of all the wrongdoers. It seems to me rather the other way, that the form of the release as exhibited in the majority opinion gives rise to a presumption that there is no intention to release other than Jarvis.
The second syllabus is to the effect that such releases are to be construed according to rules governing the construction of contracts. If that be true, where do we find any rule in reference to any other contract by which a party not mentioned in the contract is to have the benefit of a contract made with Jarvis alone under authority of the Court?
Syllabus 3 does not relate to the present case for the reason that there was no express reservation of a right to action against the other wrongdoer.
The fourth syllabus is to the effect that in the case under consideration a covenant to cease suing or a covenant in partial satisfaction does not inure to the benefit,.of ...any other person than those who are parties save that it is a satisfaction pro tanto. In addition to the statement that the covenant not to sue and the covenant to cease suing do not inure to the *32benefit of other than the parties signed, there Is the further condition “or a covenant in partial satisfaction”.
In the case at bar there is no statement in the contract that it is in partial satisfaction nor that the plaintiff reserves the right to pursue the Light Company. I cannot agree that the failure of the parties operating under authority of the Probate Court to make such reservation gives rise to a presumption that the release is for the benefit of all wrongdoers. When the question was brought to the attention of the Court by the demurrer, instead of sustaining the demurrer the Court should have overruled it and permitted the parties to present the evidence, if any existed, either that the release was for Jarvis alone, or on the other hand, a release for Jarvis and the Power Company.
The Ellis v Bitzer case, 2 Ohio Rep., 89, was decided in 1825, and announced the principle upon which many cases were afterwards decided until the decision in the Express Company case in 1919.
In the case of Larson v Cleveland Railway Company, 142 Oh St, 20, the second syllabus reads as follows:
“Where a person is wrongfully injured at the hands of two or more persons acting in concert, or acting independently but concurrently in causing a single injury, each of the wrongdoers is severally liable to such person for the full amount of the damage occasioned thereby; and the person injured may enforce his claim therefor in an action against all of them jointly, any of them severally, or any number of them less than the whole.”
It seems to me in view of this pronouncement it was error to hold that the contract of settlement with Jarvis is sufficient in law to deprive the administratrix of the rights given her under this second syllabus.
I feel justified in dissenting in the hope that this discussion may lead to a re-examination of the Express Company case and that at least the first syllabus may be modified by a holding that a presumption does not arise that the release is for the benefit of all the wrongdoers, but rather that a release such as is at issue in this case, gives rise to a presumption that there is no release for any one other than the party to the contract, and that the burden is upon the other defendant, the Light Company, to show affirmatively that the release was for its benefit.