interests that are at stake, the great disorganization of industry resulting, the uncertainty that such dissolution gives to commercial enterprises, such a decree should not be lightly entered and particularly does the excuse vanish when the only reason for it is based not upon public welfare but because of a technical legal violation that took place a decade before the suit was brought.

The days of uncontrolled competition are gone. With their passing, waste and extravagance in business have been checked. The courts have held that restraint and combination to a reasonable degree are proper and legal. Judging from the criticisms of the International Harvester Case, the public not only has accepted this doctrine, but also has come to be opposed to a dissolution of big business units unless the people at large have been harmed. May we not hope that the courts in the future in determining the degree of restraint or combination that shall be permissible, will turn to the economists and solve these intricate problems with their aid on a scientific basis. A sane policy relating to big business will thus be evolved. The main consideration will not be whether an illegal act was committed a decade or more ago; it will not be whether a company represents the natural development of an individual or a group of individuals; the only consideration will and should be what is for the public good.

CHICAGO, ILL

HERBERT J. FRIEDMAN.

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A RELEASE OF ONE JOINT TORT-FEASOR AS A RELEASE OF ALL.

In the recent case of Dwy v. Connecticut Co.,1 the defendant pleaded a formal release given to the Ley Company by the plaintiff. The plaintiff was engaged as an employee of the Ley Company, which corporation was engaged in doing work for and upon the premises of the Connecticut Company. The injury to the plaintiff was caused by electricity with which the structure upon which he was working had become charged. The court held that as the release included a reservation of the right to sue any other party or parties for the same injury, and nowhere recognized the consideration received to be complete satisfaction, such release should be given the effect of a covenant not to sue in order to comply with the intent of the parties, and that therefore the Connecticut Co., though a joint-feasor with the Ley Company, was not also released.

192 Atl. (Conn.) 883.

The opinion of the court contains an exhaustive review of the authorities on this question. As therein brought out, there are two groups of cases: The one holds that the technical language of the release prevails, and that a reservation of the right to sue others of the joint tort-feasors or other indications that full satisfaction has not been received, being repugnant to the legal effect of a release, must be ignored; the other disregards the technical form of the release, and holds that one must look to the true intent and meaning of the parties, and that such language, being repugnant to the idea of a technical release, prevents it from operating as such and renders it a covenant not to sue. This second group is the more reasonable and equitable, and more in accord with the modern theory that mere technicalities should not prevent the true intention of parties to an instrument from being fulfilled.

It is submitted that there are cases in which such a reservation is repugnant, not only to the technical language, but also to the true intent of the parties, and its effect should be nullified. This occurs where the release is given to that one of two joint tortfeasors against whom the other tort-feasor has a right of contribution or indemnity. Manifestly, the true intent of the parties is to render the releasee immune from all further claims on the part of the releasor arising out of the injury in question, whether such claims be directly or indirectly asserted. If, therefore, we construe the release as a covenant not to sue, and allow suit to be brought against the other tort-feasor, the latter can turn to the released party and demand contribution. Thus the effect, and the intended effect of the release, would be frustrated. Generally this would not occur. "There is no contribution between joint tort-feasors." But this general rule does not apply in certain classes of cases.

The rule has been held inoperative in order that the ultimate loss may be visited upon the principal wrong-doer, where one less culpable, although legally liable to third persons, may escape the payment of damages by putting the ultimate loss upon the one principally responsible for the injury done. This is illustrated in numerous cases where a municipal corporation has been allowed to recover over the amount of damages for which it has been held liable in consequence of a defective street, occasioned

2

Union Stockyards Co. v. Chicago &c. R. R. Co., 196 U. S. 217.

by the neglect or failure of another to perform his legal duty." Likewise where the plaintiff was legally bound to keep a sidewalk reasonably safe, and the defendant obstructed it whereby a third party was injured, it was held that they were not in pari delictothat the plaintiff's neglect to keep the sidewalk safe did not make the plaintiff a joint wrong-doer with the defendant, in any such sense as to prevent the plaintiff from recovering over of the defendant whatever damages he had been forced to pay the injured party. So where a gas company negligently performed its duty to keep its pipes in a safe condition, and thereby damage occurred, it was allowed to recover over of a traction company, whose negligent excavation had caused the leak. In these cases both parties have been guilty of a tort to third parties and as to them are joint-feasors. But the liability of one has arisen from the positive acts or omissions of the other, and not by its own active participation or knowledge and assent. As between themselves, the active wrong-doer stands in the relation of an indemnitor to the person who has been held legally liable therefor." "The liability which results from the mere omission of a legal duty is to be distinguished for the purpose of this case (i. e., to recover indemnity) from that which results from personal participation in an affirmative act of negligence, or from a physical connection with an act of omission by knowledge of, or acquiescence in it, on the part of the defendant."

A distinction is also made between the negligence of one party which brings about a condition, and the negligence of another party in not recognizing and acting upon such condition. As to an injured party, they are joint tort-feasors, but as between themselves the former may recover over of the latter. As between the two negligent parties, the negligence of the active perpetrator of the wrong is the proximate cause of the injury to the party whose negligence did no more than to produce the

'City of Bowling Green v. Bowling Green Gaslight Co., 112 S. W. (Ky.) 917; Washington Gas Co. v. District of Columbia, 161 U. S. 316; Hamden v. N. H. and Northampton Co., 27 Conn. 158; Baltimore & O. R. Co. v. County Com'rs, 77 Atl. (Md.) 930; Dillon on Municipal Corporations, §1035.

'Old Colony Railroad v. Slavens, 148 Mass. 363. See also Churchill v. Holt, 127 Mass. 165; Gray v. Boston Gas Light Co., 114 Mass. 149. Phila. Co. v. Traction Co. et al., 165 Pa. 456.

Scott v. Curtis, 195 N. Y. 424.

'Phoenix Bridge Co. v. Creem, 92 N. Y. Supp. 855.

condition. In New Hampshire, this question of whether, as between the joint tort-feasors, the negligence of the one seeking indemnity may be regarded as a remote cause or condition of the injury, and the negligence of the other as the proximate cause thereof, has been determined by the application of the doctrine of last clear chance."

A master who has been held liable for the negligent acts of his servant upon the doctrine of respondeat superior may recover indemnity from the servant for whose negligence he has responded.10 But where the master's own negligence has concurred with that of his servant, no right of contribution exists.11 So too, an employer may recover of his contractor, by whose negligence he has, without fault of his own, been compelled to pay damages.12 "In negligent cases based not upon wilful wrongdoing, but growing out of legal duties and obligations, a clear distinction must be drawn between the liability of the party primarily negligent and that of one secondarily so to the extent of being liable to a third party injured. In such a case, it is well settled that the second party, while he may not escape liability to the third party injured, may hold the first party, primarily negligent, for indemnity."13

In the principal case it does not appear from the statement of facts whether the negligence was that of the Connecticut Co., or was primarily that of the Ley Co., being imputed to the Connecticut Co. Should it appear that the Ley Co., was primarily negligent, a release given to them should operate to discharge the Connecticut Co., despite the reservation of the right to sue, as, in accordance with the above cases, the Connecticut Co., would, if sued, be entitled to claim indemnity from the Ley Co.

Finally, though we construe this release to be a covenant not to sue, the fact remains that it is in reality a release. What the court does is to abrogate the well-settled rule that a release for a consideration of one of several joint tort-feasors is a release

* Austin El. Ry. Co. v. Faust, 133 S. W. (Tex.) 449.

'Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159; Boston & M. R. Co. v. Brackett, 71 N. H. 494.

10

'Smith v. Foran, 43 Conn. 244; G. T. Ry. Co. v. Latham, 63 Me. 177. "Central Ry. Co. v. Macon Ry. & Light Co., 9 Ga. App. 632.

12 Galveston, H. & S. A. Ry. Co. v. Pigott, 116 S. W. (Tex.) 841; Maxwell, S. & Co. v. L. & N. R. R. Co., 1 Tenn. Ch. 8. See also Eaton & Prince Co. v. Trust Co., 100 S. W. (Mo.) 551.

13 Pa. Steel Co. v. Wash. & Berkeley Bridge Co., 194 Fed. 1011.