Kincheloe v. Retail Credit Co., Inc.

WASTE, C. J.

Plaintiffs, riding in an automobile operated by N. Lindsey South, were injured in a collision with a car driven by defendant Adams for defendant Retail Credit Company, Inc. South’s insurance company settled with plaintiffs and received a covenant not to sue, with an agreement to hold them harmless for any claims arising out of the accident. Plaintiffs then sued defendants, and they pleaded the instrument, claiming it was a release of other joint tort-feasors, releasing them also by operation of law. The lower court gave judgment on the pleadings for defendants on this theory.

Plaintiffs appealed. By order of the court, on stipulation of all the parties, the appeals were consolidated and heard on a single transcript. The instrument in question, in full, was pleaded in the answer, and is as follows:

“Covenant Not to Sue.

“Whereas, on or about April 13th, 1932, the undersigned, N. N. Kincheloe, of the County of Fresno, State of California, was riding in an automobile owned and driven by N. Lindsey South, and

“Whereas, the said automobile was involved in an accident with an automobile driven by Philip Adams, and owned by Philip Adams &/or Retail Credit Company &/or John Doe, which said accident happened and occurred at on Highway between Tulare and Tipton, State of California, and

“Whereas, the undersigned sustained certain injuries on or about his body and has suffered disability from said injuries, and,

“Whereas, the said N. Lindsey South and the Universal Automobile Insurance Company, desire from the undersigned an agreement and covenant not to sue them or either of them.

“Now, therefore, for and in consideration of the sum of $130.00, one hundred thirty dollars, the undersigned, hereby promise and' agree that he will not sue or litigate any claim, or claims, of any nature or description, against N.

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Lindsey South and the Universal Automobile Insurance Company, or either of them, for or on account of any injuries or damages which I now have, or may hereafter have, or have had on account of the injuries sustained in the accident above mentioned, and I do hereby covenant and agree to hold said N. Lindsey South and Universal Automobile Insurance Company and each of them, and all of them harmless from any liability, claims, demands, costs, charges, and expense incident to any claim or claims, arising out of said accident, or the injuries sustained by me therein.