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Pate v. City of Sesser

OPINION FILED JULY 31, 1979.

BONNIE PATE, INDIV. AND AS ADM'R OF THE ESTATE OF JOHN PATE, DECEASED, PLAINTIFF-APPELLANT,

v.

THE CITY OF SESSER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Franklin County; the Hon. ROBERT S. HILL, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff Bonnie Pate appeals from an order of the circuit court of Franklin County dismissing her wrongful death action against defendants City of Sesser, Arthur L. Holloway d/b/a Waltonville Texaco Service and William E. Lampley d/b/a The Plaza Lounge.

According to the facts alleged in plaintiff's second amended complaint, her deceased husband, John Pate, was involved in an automobile accident on Route 183 near Sesser at 4:30 a.m. on January 31, 1976. A Sesser policeman patrolling in the area was dispatched to the accident scene to investigate and render assistance. Also called to the scene was a tow truck owned and operated by Holloway. Holloway made the necessary preparations for the removal of the disabled vehicle and requested the aid of Pate. It was at this point that an eastbound automobile driven by William J. Wilson collided with the vehicle involved in the original mishap. The force of impact caused the disabled vehicle to slam into the rear of the wrecker. This latter collision involving the Wilson vehicle caused severe spinal injuries to be inflicted upon Pate, who had been standing or stooping between the disabled vehicle and the tow truck, and resulted in his death on March 5, 1976.

The complaint further alleges that Wilson was intoxicated at the time of the second collision. The first four counts of the complaint proceed against the City of Sesser and Holloway under traditional negligence theories and seek to recover damages in excess of $15,000 for medical and funeral expenses and loss of support. The latter two counts of the complaint which are against Lampley are brought pursuant to section 14 of the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135) and seek the same damages.

Plaintiff elected not to bring any action against Wilson and signed instead an instrument entitled "Covenant Not To Sue" in exchange for the sum of $10,000. The complete instrument reads as follows:

"11-44800 B

COVENANT NOT TO SUE

FOR AND IN CONSIDERATION OF the payment to me/us of the sum of Ten thousand and ______ 00/100 dollars ($10,000.00) and other good and valuable consideration, I/we realizing that there is doubt and uncertainty as to the nature and extent of my/our injuries, losses and damages and as to the liability of the payors, hereinafter described and that such facts are also in dispute, I/we, being of lawful age, have released and discharged, and by these presents do for myself/ourselves, my/our heirs, executors, administrators and assigns, release, acquire and forever discharge William J. Wilson and/or (his, her, their) master, servants, agents and officers (any and all of whom are hereinafter referred to as the payors), their heirs, representatives, successors and assigns from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation, and all consequential damage and also to the extent of their liability for contribution to other joint tortfeasors arising out of or in any way growing out of any and all known and unknown personal injuries and death or property damage resulting or to result from an accident that occurred on or about the 31st day of January, 1976, at or near Sesser, Illinois.

I/we reserve the right to make claim against any and every other person, and reserve also the right to make claim that they, and not said payors, are solely liable to me/us for my/our injuries, losses and damages.

In the event that other tortfeasors are responsible to me for damages as a result of this accident, the execution of this release shall operate as a satisfaction of my claim against such other parties to the extent of the relative pro rata share of common liability of the payors herein released.

If it should appear or be adjudicated in any suit, action or proceeding, however, that said payors and others were guilty of joint negligence which caused my/our injuries, losses or damages, in order to save said payors harmless, I/we, as further consideration for said payment, will satisfy any decree, judgment or award in which there is such finding or adjudication involving said payors on their behalf and to the extent of their liability for contribution, also, I/we will indemnify and save forever harmless said payors against loss or damage because of any and all further claims, demands, or actions made by others on account of or in any manner resulting from said injuries, losses and damage.

This covenant contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital.

I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our own free act.

SIGNED AND SEALED AT , 19 (CITY) (STATE) (DATE)"

Each of the defendants moved to have the counts stated against them dismissed on the theory that the instrument signed by plaintiff constituted a release of Wilson from liability rather than merely a covenant not to sue. Defendants' contention was that since Wilson was a joint tortfeasor by virtue of the fact that his name appears under all six counts of the complaint as the driver of the automobile which struck the disabled vehicle and thereby injured Pate, the release of Wilson operated to release all other tortfeasors from liability. Following a hearing on the matter the trial court specifically found: (1) the instrument entitled "Covenant Not To Sue," was a release and not a covenant not to sue; (2) Wilson was a joint tortfeasor; and (3) the release of Wilson served to release all of the defendants as joint tortfeasors. Pursuant to these findings an order was entered dismissing plaintiff's complaint with prejudice.

• 1-3 Illinois has long recognized a clear distinction between the legal effect of a release and a covenant not to sue. A release extinguishes a cause of action whereas a covenant not to sue affects only the right to bring suit and not the cause of action itself. (City of Chicago v. Babcock (1892), 143 Ill. 358, 32 N.E. 271; Holcomb v. Flavin (1966), 34 Ill.2d 558, 216 N.E.2d 811.) It is also recognized that an unqualified release of one joint tortfeasor operates to discharge all joint tortfeasors, while a covenant not to sue has no such effect. (Hulke v. International Manufacturing Co. (1957), 14 Ill. App.2d 5, 142 N.E.2d ...


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