It is with reluctance and some hesitation that I feel constrained to dissent from the very able opinion adopted by a majority of the court in this case. But in view of the fact that the same judges who adopted that opinion, in Shriver v. Carlin Fulton Co., 155 Md. 51, reached a diametrically opposite conclusion, a due regard for equality and uniformity in the administration of the law constrains the dissent. The reasons for it are these:
In this case the plaintiff claims to have been injured, while a passenger in a motor vehicle operated by the Yellow Cab Company, as the result of a collision between that vehicle and a truck owned by Vincent Lanasa, which collision, she alleged, was caused by the joint negligence of the cab company and Lanasa. To recover for her injuries, she instituted separate suits against Lanasa and the cab company. Pending the suit against Lanasa, she accepted from the cab company $1,032.40, and in consideration thereof executed an agreement containing a covenant not to sue the cab company, in which the plaintiff stipulated that "the parties hereto agree that this covenant not to sue, so given by the parties of the first part to the party of the second part, shall in no way affect the rights or claims of the parties of the first part to recover damages against the said Vincent Lanasa resulting unto them by virtue of said collision, and that this paper is not intended nor is it to be construed as a release of the said Vincent Lanasa or the Yellow Cab Company, a body corporate, party hereto of the second part." In Shriver v.Carlin Fulton Co., supra, the plaintiff entered a judgment against joint defendants, "Agreed and settled" as to one defendant, White, "only." In that case that order was held to be a covenant not to sue, and not a release, and on that ground alone it was held that Shriver was entitled to execute the judgment to the extent of the unsatisfied portion thereof against White's codefendants. The only distinction between that case and this is that there the judgment was against an obligor and sureties on a bond, while here the claim was *Page 327 against joint tort-feasors. But that is a distinction without a difference. In this case the claim itself was joint and several, in that it was joint. In that case the liability was fixed by a single judgment, in this it could have been fixed by either of several judgments against each tort-feasor. The reason why a release of one joint tort-feasor would operate as a complete satisfaction of the tort applied with equal force to the release of one joint judgment debtor, and if White's codefendants were properly held in that case, Lanasa was improperly discharged in this.
In accepting the payment and executing the agreement not to sue in this case, the plaintiff was entitled to rely on what this court had unanimously said in a case so recent as Shriver v.Carlin Fulton Co., for assurance that she was not barring herself from holding Lanasa to the full measure of his liability. Nor could Lanasa possibly have been injured. He was at law liable to fully compensate the plaintiff for any injury occasioned by his tort, and if she had received partial satisfaction therefor, he would have been entitled to have that deducted from any judgment against him recovered for the same injuries.
And the whole weight of modern authority supports that conclusion. There is no possible reason why Lanasa, who was found guilty of negligence by the jury, should be permitted to go scatheless, while the plaintiff is deprived of compensation to which under the law she was entitled, because she accepted a fraction of that compensation from the Yellow Cab Company which had joined with Lanasa in the tort. It was to prevent such a manifest injustice that the courts both of this country and in England have recognized that distinction, ignored by the opinion in this case, between a covenant not to sue and a release. That distinction is thus stated in 38 Cyc. 537: "Both a release of, and a covenant not to sue, a single wrong doer will operate as a bar so far as he is concerned. But where given to one or more of several joint tort-feasors the effect of a release is different from that of a covenant. The former will operate as a discharge not only *Page 328 of the wrong-doer or wrong-doers to whom it is given, but of all the others, unless, as held by some of the courts, a cause of action against them is expressly reserved; but a covenant not to sue will affect only the right to redress against the party to whom it is given. In such case the covenant does not operate as a release of either the covenantee or the other tort-feasors, but the former must resort to his suit for breach of the covenant, and the latter cannot invoke the covenant as a bar to the action against them." And to the same effect is Cooley in his work onTorts (3rd Ed.), p. 237, where it is said: "But an acceptance of money or other consideration from one joint tort-feasor is not a discharge of the others, where there is no satisfaction or release. Nor is a mere agreement not to sue, though given for valuable consideration. In an Illinois case, where such an agreement was made with one defendant and the suit was dismissed as to him, the court says: `A release to one of several joint tort-feasors is a release to all, and an accord and satisfaction with one of them is a bar to an action against the others. Here, there is no claim of a technical release under seal. The pending suit against Le Cardi was dismissed, and a written agreement was signed that no action should be begun against Le Cardi by appellee. This, on its face, was simply an agreement or covenant not to sue. The legal effect of such a covenant is not the same as that or a release. A covenant not to sue a sole tort-feasor is, to avoid circuity of action, considered in law a discharge, and a bar to an action against such tort-feasor. But the rule is otherwise where there are two or more tort-feasors, and the covenant is with one of them not to sue him. In such case the covenant does not operate as a release of either the covenantee or the other tort-feasors, but the former must resort to his suit for breach of the covenant, and the latter cannot invoke the covenant as a bar to the action against them.'" Nor is the weight of these statements lessened by the vague dictum in Clopper v.Union Bank, 7 H. J. 103, decided over a century ago, that an indefinite covenant not to sue is tantamount to a release. The court in *Page 329 that case was dealing with a sole covenant, and if its comment was intended to apply to such a case, it is wholly consistent with the present law, and its comment should fairly be construed as limited by the subject to which they were applied.
Judge Urner has authorized me to say that he concurs in these views.