(dissenting).
I am unable to concur in the decision of this case. The appeal is from a summary-judgment entered by the District Court of the United States for the District of Columbia against the appellants Helen H. and Royal T. McKenna, husband and wife, plaintiffs below. The appellants filed suit against the appellee Thomas Austin for damages alleged to have resulted from injuries received by the appellant Helen H. McKenna on March 16, 1939, through the negligence of the appellee in the operation of a taxicab which collided at the intersection of 24th and S Streets, N.W., in the District of Columbia, with another taxicab in which Mrs. McKenna was a passenger. She sought damages in the sum of $50,000; Mr. McKenna, upon allegations that, as a result of her injuries, he had been required to incur medical and hospital expenses for his wife and that he had lost and would lose her consortium and services, asked damages in the sum of $5,000. The appellee’s answer to the appellants’ complaint denied the allegations thereof and also alleged that while the appellee’s taxicab was being carefully operated at the time and place mentioned, the one in which Mrs. McKenna was riding as a passenger, owned by the Independent Taxi Owners Association and one William L. Driscoll, was negligently operated by them and that on that account, and not by reason of any act or failure on the part of the appellee, the collision and any damage to Mrs. McKenna occurred. By way of further defense the appellee set forth that, prior to the commencement of the action, the appellants had accepted from the Independent Taxi Owners Association and William L. Driscoll, in full accord and satisfaction of the cause of action and claim for which the suit was brought, the sum of $3,000, and in consideration thereof had executed a release which is a bar to the present suit. After the issues had been thus joined the appellee filed a motion for a summary judgment in his own favor and against the appellants upon the ground that the release referred to disclosed release of a joint tort-feasor and thereby released the appellee as a matter of law. A copy of the release was attached to the motion and was in the terms set forth in footnote 1 to the majority opinion. The motion for summary judgment was made under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, permitting such a judgment to be entered in favor of a party against whom a claim is asserted “if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that, except as to the amount of the damages, there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” The motion asserted that as a result of the release there was no genuine issue as to any material fact. This the appellants denied. But they stipulated that the document a copy of which was appended to the motion for summary judgment was executed by them on December 14, 1940.1 The trial court entered the summary judgment in the appellee’s favor and this appeal was then taken.
It is contended by the appellants that the judgment is erroneous for the reason that under the pleadings in the trial court as stated there were two genuine issues as to material facts. As put by the appellants these were: “Was the appellee a joint tortfeasor or an independent and concurring tort-feasor ? If the former, was the instrument upon which summary judgment was granted a ‘release’ or a ‘covenant not to sue’?”
The appellants urge that if the first of these issues should, upon a hearing of evidence in the case, be resolved in such manner as to show that the torts involved were independent and concurring rather than joint, then the “release,” even if strictly a release rather than a covenant not to sue, would he ineffective as to the appellee. They contend further that even if the first issue should be resolved so as to show that the appellee was a joint tort-feasor, still a question of fact would remain as to the intention of the parties to the instrument in question with respect to releasing the appellee, i. e., as to whether the parties intended it merely to he a covenant not to sue the Independent Taxi Owners Association and Driscoll with a reservation of right against the appellee, or whether they intended to release the Independent Taxi Owners Association and Driscoll and the appellee as well.
It will be seen, however, that if it is the law that the release of one of two or more tort-feasors, whether joint, or inde*668pendent and concurring, has the effect to release the others, and if, therefore, as a matter of law, the instrument executed in the instant case is a release as to all, and cannot operate merely as a covenant not to sue the Independent Taxi Owners Association and Driscoll with reservation of right against the appellee, then there is no genuine issue of material fact to be determined in the case.
Among the authorities outside , the District of Columbia there is a distinct division upon the question whether the release of one of two or more joint tort-feasors operates to release all. The rule, declared by the majority of the cases answers the question in the affirmative. The division is excellently annotated and the reasons therefor well stated in an opinion by Callaway, C. J., speaking for the Supreme Court of Montana, in Black v. Martin, 1930, 88 Mont. 256, 292 P. 577, 580, 581. The court in that case followed the minority or so-called modern view.
But in the District of Columbia a choice in favor of the majority or so-called ancient rule was made in the case of Kaplowitz v. Kay, 1934, 63 App.D.C. 178, 70 F.2d 782. It was upon the faith of that case that the trial court in the instant ¡case entered the summary judgment in tlje appellee’s favor. In Kaplowitz v. Kay it appeared that the plaintiff Kaplowitz had been injured in an automobile collision in which one Acrouri and the defendant Kay were both involved. The plaintiff asserted that they were joint tort-feasors. It appeared that before instituting suit against Kay the plaintiff executed an instrument releasing Acrouri and an insurance company in consideration of the payment of $500. On this account judgment was given at the trial for the defendant Kay upon the theory that the release of Acrouri and the insurance company operated as a matter of law to release Kay also. On appeal this was affirmed, this court saying:
“It is settled law that: ‘The release of one joint tort-feasor, or the satisfaction of a judgment against one, releases all from liability. * * * ’ 26 R.C.L. 766. In the case of McLaughlin v. Monaghan, 290 Pa. 74, 138 A. 79, 80, it is said: ‘That a valid release of one joint tort-feasor operates as a release of all is undoubted.’ . . . In Farmers’ Savings Bank v. Aldrich, 153 Iowa 144, 133 N.W. 383, 386, it is said: ‘The weight of authority in this country seems to be unquestionably in support of the rule that an adjustment with one wrongdoer, and his release from all further liability, discharges all the joint wrongdoers, even though there is a reserved intention, either express or implied, to look to the other wrongdoers for further damages or compensation.’ In Tanana Trading Co. v. North American Trading & Trans. Co., 9 Cir., 220 F. 783, 786, it is said: ‘In cases of joint torts, the injured person may sue one, or any number less than all, of the joint tort-feasors, or may’ sue all; and, where there is but one injury, there can be but. one satisiaction. 11 the injured person executes a release to 0‘ire of the joint tort-feasors, it operates to bar an action against the others, for the reason that the cause of action is satisfied and no longer exists.’ [63 App.D.C. at pages 178, 179, 70 F.2d at pages 782, 783]” The terms of the release in Kaplowitz v. Kay do not appear in the opinion, and they do not appear in the record in that case. Hence it cannot be demonstrated that the case is precisely upon all fours with the instant case because in the latter the terms of the release show an express reservation of right against Austin. Moreover the opinion in Kaplowitz v. Kay contains not only the statements and quotations set forth above but also the following quotation from Gunther v. Lee, 45 Md. 60, 24 Am. Rep. 504: “When the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages.” (Italics supplied) (63 App.D.C. at page 178, 70 F.2d at page 782) But despite this I think that it was made clear in Kaplowitz v. Kay that it was the intention of this court to adopt the so-called ancient, or majority, rule as a considered choice. The decision has stood unmodified in this jurisdiction since 1934 as a guide to litigants and to the trial courts on the subject in question.
In view of Kaplowitz v. Kay there could be no issue of material fact under the pleadings in the instant case as to whether the parties intended the release to be merely a covenant not to sue the Independent Taxi Owners Association and Driscoll with a reservation of right against the appellee, or whether they intended to release the Association and Driscoll and the appellee also, because under the rule adopted by Kaplowitz v. Kay “an adjustment *669with one wrongdoer, and his release from all further liability, discharges all the joint wrongdoers, even though there is a reserved intention, either express or implied, to look to the other wrongdoers for further damages or compensation.” (Italics supplied)
Also there could be no issue of material fact under the pleadings in the instant case as to whether the negligence of the Independent Taxi Owners Association and Driscoll on the one hand and that of Au stin on the other was joint, or independent and concurring, in character. The contention of the appellants that the rule that the release of one of a plurality of tortfeasors releases all applies only to joint tort-feasors as distinguished from tortfeasors whose independent concurring wrong causes the injury complained of, is not well founded. An examination of the cases on this subject discloses that the overwhelming weight of. authority is to the effect that the ancient rule applies indiscriminately, i. c., to both types of tortfeasors. In Muse v. De Vito, 1923, 243 Mass. 384, 137 N.E. 730, the plaintiff was injured by falling into a trap door located in the sidewalk in front of a store occupied by one McMaster. The defendant’s employees, who were removing a load of waste paper from McMaster’s basement through the metal trap door, left the same open and unguarded while they absented themselves to get a drink of soda. The plaintiff had released McMaster, notwithstanding which parol evidence was, over the defendant’s objection, admitted at the trial to show an intention by the plaintiff to reserve a right of action against others who might be legally responsible. It was held that this was prejudicial error. The Supreme Judicial Court of Massachusetts said:
“As a matter of construction it is clear that this instrument under seal is a release, and not merely a covenant not to sue. The effect which the law attaches to a release discharging the liability of a wrongdoer is the release of other tort-feasors who are jointly liable for the injury. This rule apparently is based upon the nature of their liability, which is one and indivisible. Accordingly, if one of them is discharged, or satisfies the cause of action, there remains no foundation for an action against any one. This rule applies not only to joint torts, strictly so called, but also to rases where the negligent acts of two or more persons operate concurrently to the injury of another, so that in effect the damages sustained are rendered inseparable. Brown v. City of Cambridge, 3 Allen 474. See Feneff v. Boston & Maine Railroad, 196 Mass. 575, 82 N.E. 705. In the application of this rule of law, where the release is absolute and unconditional, it must be given its full effect, and cannot be varied by parol evidence introduced to show that the plaintiff intended to reserve whatever rights she had against this defendant. Boston Supply Co. v. Rubin, 214 Mass. 217, 221, 101 N.E. 133. . . . [137 N.E. at page 731]” [Italics supplied]
To this effect see also: Moss v. Cherdak, 1935, 114 N.J.L. 332, 176 A. 333; Mason v. Lavine, Inc., 1931, 302 Pa. 472, 153 A. 754; Coleman v. Gulf Refining Co., 1927, 172 Ark. 428, 289 S.W.2d 2; Lindsay v. Acme Cement Plaster Co., 1922, 220 Mich. 367, 190 N.W. 275; Cormier v. Worcester Consol. St. Ry. Co., 1919, 234 Mass. 193, 125 N.E. 549; Abb v. Northern Pac. Ry. Co., 1902, 28 Wash. 428, 68 P. 954, 58 L.R.A. 293, 92 Am.St.Rep. 864; Denver & R. G. R. Co. v. Sullivan, 1895, 21 Colo. 302, 41 P. 501; Tompkins v. Clay-Street Hill R. Co., 1884, 66 Cal. 163, 4 P. 1165; Annotation: Tort-feasors, Release of One (1927) 50 A.L.R. 1057. And compare: Feinstone v. Allison Hospital, 1932, 106 Fla. 302, 143 So. 251; McCoy v. Louisville & N. R. Co., 1906, 146 Ala. 333, 40 So. 106; Hartigan v. Dickson, 1900, 81 Minn. 284, 83 N.W. 1091. The appellants rely upon Husky Refining Company v. Barnes, 9 Cir, 1941, 119 F.2d 715, 134 A.L.R. 1221, Young v. Anderson, 1921, 33 Idaho 522, 196 P. 193, 50 A.L.R. 1056, and cases cited in the latter. Husky Refining Company v. Barnes supports the appellants’ contention. Young v. Anderson does also, although it is weakened by the fact that the court said that the release involved was to be construed as having the effect of an agreement not to sue and not as an acknowledgment of satisfaction for the injuries received. The cases cited in Young v. Anderson are the following: Pogel v. Meilke, 1884, 60 Wis. 248, 18 N.W. 927; City of Chicago v. Babcock, 1892, 143 Ill. 358, 32 N.E. 271; Snow v. Chandler, 1839, 10 N.H. 92, 34 Am.Dec. 140; Miller v. Beck, 1899, 108 Iowa 575, 79 N.W. 344; Murphy v. Penniman, 1907, 105 Md. 452, 66 A. 282, 121 Am.St.Rep. 583; Pittsburgh Rys. Co. v. Chapman, 3 Cir, 1906, 145 F. 886. Pogel v. Meilke, City of Chicago v. Babcock, and *670Snow v. Chandler are not in point. They involve joint tort-feasors, not tort-feasors whose wrongs were independent and concurring. Miller v. Beck is inconsistent within itself. It holds that although the wrongdoers involved were not joint and that therefore the release of one did not release the other, nevertheless since the wrong committed was an entirety and indivisible, satisfaction of judgment against one of the wrongdoers was a bar to a suit against the other. Murphy v. Penniman, holding that a release given to five directors — in a suit brought by a receiver to enforce their liability and that of other directors to a corporation for certain corporate losses — did not operate to release the others, was decided upon the ground that the receiver had no authority to execute the release and that it was accordingly void. Pittsburgh Rys. Co. v. Chapman involves neither joint tort-feasors nor tort-feasors whose wrongs were independent and concurring but tort-feasors whose negligence, if any there was on the part of one, was separate arid distinct.
Since at the time of the trial of the instant case Kaplowitz v. Kay. reflected the law in this jurisdiction the trial court rightly followed it. And since under the rule of Kaplowitz v. Kay there could, as demonstrated, be no issue of material fact either as to whether the appellee was a joint or an independent and concurring tort-feasor, or as to whether it was the intention of the parties to the instrument in suit to release all of the tort-feasors, j .including the appellee, or merely the Independent Taxi Owners Association and Driscoll, the summary judgment should, in my opinion, be affirmed.
If I understand the decision of the majority, it repudiates the rule of Kaplowitz v. Kay that release of one of a plurality of joint tort-feasors releases all and holds that if the injured party has riot received full compensation from the one, the others may be compelled to respond. But the decision of necessity leaves standing George’s Radio, Inc., v. Capital Transit Co., 1942, 75 U.S.App.D.C. 187, 126 F.2d 219, holding that there may be contribution between non-wilful joint tort-feasors; for, there being no question of contribution before the court in the instant case, the decision has no effect to overrule or modify the George’s Radio case.
I think that the departure of the court from the doctrine of the Kaplowitz case is not supportable. The doctrine of stare decisis is not a formalism. It is founded in a sensible respect for past exercise of legal judgment and upon the need of certainty in legal relations. The doctrine is of course subordinate to legal reason and justice, does not require the perpetuation of pernicious error, and does not interfere with growth of the law in proper cases. But departure from precedent is to be justified only on substantial grounds. The past decisions of a court ought not be lightly overruled. Courts ought not swing from one doubtful rule to another. Change of decision as a result of change of personnel in the courts saps confidence in the law as an objective standard of decision.2 The doctrine of the Kaplowitz case cannot be characterized as pernicious error. An undivided court in that case made a choice between two conflicting views expressed in decisions outside the District of Columbia, and the choice was not without basis in reason and practical justice. If the law as declared by the Kaplowitz case is tainted by the “metaphysics of estates” — as stated by the majority in the instant case — it nevertheless had the virtue, before decision of the George’s Radio case, of simplicity and also of finality- — -it eliminated litigation; and even since the latter case was decided the doctrine of the Kaplowitz case reduces litigation, following settlement with one tort-feasor, to the possible single suit of the latter against his fellow wrongdoer for contribution.3 But, under the theory of the majority opinion, with the Kaplowitz case overruled, the fellow tort-feasor may be sued by the injured party, and, following that, and contingent upon the amount of the judgment secured, there will be either a suit by the settler to exact contribution from the judgment defendant or an arbitrary reduction of the injured party’s recovery. These sequelae give rise to problems which the generalized suggestions made, in view of the George’s Radio case, in the majority opinion foreshadow, and which the concrete examples which I give below bring into light.
*671The majority opinion suggests that where the injured party’s judgment against the joint tort-feasor is for less than twice the amount of the settlement, the one who has settled, since he will thus have paid more than half the total sum due the injured person, shall be allowed to recover from the other wrongdoer the amount necessary to equalize their payments. This can be illustrated as follows: If the injured party settles for $3,000 with one and obtains a judgment of $5,000 against another joint tort-feasor, then the former is to recover from the latter $500.4 Thus in order to accomplish full payment of the ‘injured person and equal payments by the joint tort-feasors, one settlement and two law suits will be requisite. Moreover, this suggestion presupposes that the rule requiring contribution between joint tortfeasors operates in favor of one who pays for his peace without judgment taken against him. It has been decided in Wisconsin that it does (Western Casualty & Surety Co. v. Milwaukee General Const. Co., 1933, 213 Wis. 302, 251 N.W. 491), and there is a similar decision in Kentucky (Consolidated Coach Corporation v. Burge, 1932, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086), rendered, however, under a statute which, without expressed restriction to cases in which a judgment has been obtained, permits enforcement of contribution among wrongdoers. In the District of Columbia there is no such statute, and the George’s Radio case involved wrongdoers both of whom had suffered a judgment. The law here is, therefore, at least doubtful on this subject.
It is suggested further that if, after settlement with one joint tort-feasor, the injured party obtains a judgment against the other in a sum more than twice the amount of the settlement, such judgment shall be reduced by a credit equal to one-half thereof. This can be illustrated thus: If the settlement price paid by one joint tortfeasor is $3,000 and the judgment taken against the other is $7,000, a credit of $3,500 is to be allowed. But this results in a total of $6,500 as compensation for an injury judicially determined to have damaged the plaintiff in the sum of $7,000. Thus the injured party is deprived of the very advantage which the majority opinion seeks to accord him by the overruling of Kaplowitz v. Kay, i. e., the right to recover against another joint tort-feasor, after the release of one for less than full compensation for the injury, in order to make himself whole. The loss to the injured party will be great in cases of large damage through serious injury and settlement for a small sum with a joint tortfeasor unable to pay more. Thus if settlement is for $3,000 but the damages are adjudged to be $15,000, the injured party will receive $7,500 from the judgment defendant, a total of $10,500, but will get none of the balance of $4,500. Moreover, this suggestion of the majority assumes that it is within the proper province of a court arbitrarily to compel an injured party to accept less for his injury than the court has, by definition, determined the injury to be worth in damages. I think this doubtfully within the province of a legislature, much more doubtfully within that of a court. The attack in the majority opinion upon “the logic which characterizes such a partial scaling down of the recovery as unjust and at the same time gives approval to the total annihilation of recovery the rule of that case [the Kaplowitz case] brings about” distorts the foundation of the dissent. I do not assert that the rule of the Kaplowitz case accomplishes perfect justice. New rules do. My position is that a court is not warranted in departing from precedent where in doing so it merely swings from one imperfect rule to another equally, if not more, imperfect one.
Tt is to be noted that, although the majority opinion permits, in the event of a judgment for less than twice the amount of the settlement, equalization of payments at the instance of the settler, who, under this supposition, has paid more than one-half of the total sum due the injured person, the position taken that a settlement once made must be treated as final (and from this there is hardly any escape), forbids equalization of payments in the event of a judgment for more than twice the amount of the settlement. Thus, as illustrated above, where the injured party settles for $3,000 with one joint tort-feasor and obtains a judgment of $5,000 against the other, the former is to recover from the latter $500. But where, as also illus*672trated above, the settlement price paid by one joint tort-feasor is $3,000 and the judgment taken against the other is $7,-000, with a credit of $3,500, the judgment debtor will thus have paid $500 more than the settler but will not be able to equalize the payments by a suit against the settler.
The majority opinion does not suggest what rule for contribution should be followed in the event that the judgment is less than the amount of the settlement— a by no means impossible situation where a settler is able and willing to pay a high price for his peace but a court in the suit against the other joint tort-feasor regards the damages as slight. In that situation presumably, under the theory of the majority opinion, the judgment defendant would pay nothing to the injured party because the credit to be allowed on account of the settlement would wipe out the amount of the judgment — for example, if the settlement were for $2,000 and the judgment for $1,000. But whether or not under these circumstances the settler could exact contribution is left without answer.
It is suggested in the majority opinion that the doctrine of stare decisis is not involved because in the instant case the wrongdoers acted independently and concurrently, not jointly, and there was an express reservation of right to , proceed against the wrongdoers not released, so that it affirmatively appears that the settlement was not made or accepted as full satisfaction for the whole injury,'whereas in the Kaplowitz case the wrongdders were joint, the settlement was in full satisfaction, and there was no reservation of a right to proceed against the one not re-, .leased. As to the first suggested distinction, it is- to be noted that it does not yet appear in the instant case whether the wrongdoers acted independently and concurrently, or jointly; the contention in this aspect of the case is that there was an issue of material fact as to whether the appellee was a joint tort-feasor or an independent and concurring tort-feasor. But assuming, arguendo, that the wrongdoers in the instant case did act independently and concurrently rather than jointly, this suggested distinction I think ignores the fact that, as I point out above, the overwhelming weight of authority applies the rule reflected in the Kaplowitz case as well to independent and concurring tortfeasors as to joint tort-feasors. The other suggested distinction fails to recognize that the rule of the Kaplowitz case operates, as it is in terms stated therein, to discharge all joint wrongdoers after an adjustment with one and his release from further liability “even though there is a reserved intention, either express or implied, to look to the other wrongdoers for further damages or compensation”; and I think it somewhat strains the language of the opinion of the Kaplowitz case to conclude that it appears therefrom that the settlement in that case was in full satisfaction for the whole injury as distinguished from the whole of the claim made against one tortfeasor and his insurer.5
Granting that the rule of the Kaplowitz case falls short of accomplishing perfect justice, to set it aside as the majority does only to substitute therefor the complications and inequalities which, as I above point out, attend the suggestions made in the majority opinion in view of the George’s Radio case, is, in my view, to jump, if not from the frying pan into the fire, at least from one frying pan into another. I think the court should let well enough alone, i. e., leave standing the rule of the Kaplowitz case which, as I have said, has at least the virtue of simplicity and finality. In the words of Sir John Salmond:
“. . .It does not follow that a principle once established should be reversed simply because it is not as perfect and rational as it ought to be. It is often more ■ important that the law should be certain than that it should be ideally perfect. These two requirements are to a great extent inconsistent with each other, and we must often choose between them. Whenever a decision is departed from, the certainty of the law is sacrificed to its rational development, and the evils of the uncertainty thus produced may far outweigh the very-trifling benefit to be derived from the correction of the erroneous doctrine. The precedent, while it stood unreversed, may *673have been counted on in numerous cases as definitely establishing the law. Valuable property may have been dealt with in reliance on it; important contracts may have been made on the strength of it; it may have become to a great extent a basis of expectation and the ground of mutual dealings. Justice may therefore imperatively require that the decision, though founded in error, shall stand inviolate none the less. Communis error facit jus(1). ‘It is better/ said Lord Eldon, ‘that the law should be certain than that every judge should speculate upon improvements in it.’ ”... [Salmond on Jurisprudence (8th ed. 1930) 194-5]
I think the judgment of the lower court should be affirmed.
Strictly, the stipulation admitted execution of the copy attached to the motion but the intention was obviously to admit execution of the original.
For a discussion of the subject of departure from doctrines see 14 Am.Jur., Courts, § 124 et seq.
I refer to a possible single suit for the reason that, as I point out below, it lias not yet been determined in the District of Columbia that a joint tort-feasor who buys his peace without judgment taken against him can compel contribution.
Since the injured party cannot properly recover more than full compensation for his injury, the $3,000 received in settlement will presumably be deducted from the $5,000 judgment, reducing the same to $2,000; and to equalize the payments it will be necessary then for the joint tort-feasor against whom judgment has been obtained to pay $500 to the settler.
The opinion in the Kaplowitz case states “It is disclosed that the plaintiff asserted a claim for damages agaihst the drivers of both oars, and that the in- ' suranee company carrying insurance for Acrouri had settled the claim of the plaintiff against Acrouri by the payment to plaintiff of $500 in full satisfaction of the claim. A release was thereupon executed by the plaintiff to Acrouri, releasing him and the insurance company from any and all causes of action arising out of the collision.” (Italics supplied)
“It is to be remembered that the overruling of a precedent has a retrospective operation. In this respect it is very different from the repeal or alteration of a statute.”