Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Arthur A. Sullivan, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Sally Podgorski Porter brought this appeal from an affirmance by the appellate court of a judgment of the circuit court of Cook County which dismissed her suit as special administrator of the estate of her deceased husband against the Ford Motor Company (Ford). We granted her petition for leave to appeal under our Rule 315 (73 Ill.2d R. 315).
On October 12, 1974, Arthur M. Podgorski was killed while driving his 1972 Ford Pinto station wagon which was struck by a vehicle driven by Charles Rainwater. The National Bank of Bloomington, as administrator of the estate of Podgorski, filed suit against Rainwater in 1976, charging him with the negligent operation of his automobile. The complaint claimed damages of $325,000. Rainwater carried a $50,000 liability insurance policy issued by the State Farm Insurance Company. In February 1977 the claim was settled for $49,000, and the bank executed an "Administrator's Release" which read in part:
"KNOW ALL MEN BY THESE PRESENTS, that the undersigned, National Bank of Bloomington, as Administrator of the Estate of Arthur M. Podgorski, deceased, in consideration of the payment of the sum of Forty Nine Thousand and no/100 Dollars ($49,000.00) to me in hand paid by Charles W. Rainwater and State Farm Insurance Company, the receipt of which is hereby acknowledged, the undersigned does hereby release, acquit and discharge the said Charles W. Rainwater and State Farm Insurance Company and any person, firm or Corporation liable in his stead of any and from all claims of action, causes of action, damages or demand of whatever name or nature in any manner arisen, arising or to grow out of any and all occurrences and especially due to the death of Arthur M. Podgorski, which occurred October 12, 1974 at or near Saybrook, Illinois.
The consideration for this release is the sole consideration therefor, and there is no agreement or promise on the part of the said Charles W. Rainwater and State Farm Insurance Company to do or to omit to do anything or act not herein mentioned and the above consideration is in full settlement of any and all damages to the undersigned arising out of or any claims, in all matters aforesaid mentioned including any claims by the next of kin by virtue of the death of Arthur M. Podgorski.
That the said Charles W. Rainwater and State Farm Insurance Company is paying the sum of Forty Nine Thousand and no/100 Dollars ($49,000.00) as herein set forth, does so in compromise of claim or claims, action or actions, cause or causes of action, damages or demands, not admitting liability on his part."
On October 11, 1978, the suit considered here was filed to recover damages against Ford under the theory of breach of implied warranties of fitness. Ford's motion to dismiss on the grounds that the "Administrator's Release" operated as a bar to any and all claims arising out of the collision on February 9, 1977, was granted. As stated, the appellate court affirmed the dismissal. 103 Ill. App.3d 848.
The judgment of the appellate court was grounded on the common law rule that a full or unqualified release of one of several joint tortfeasors releases all. (Wallner v. Chicago Consolidated Traction Co. (1910), 245 Ill. 148; Benjamin v. McConnel (1847), 9 Ill. 536.) The court stated that the language of the release was clear and unambiguous and constituted a full release which was a bar to further legal action. The court noted that "[t]here is no reservation contained in the release or qualified language which would lead us to conclude otherwise." 103 Ill. App.3d 848, 850.
The only question presented is whether the suit against Ford was barred by the release.
The plaintiff, relying primarily on Parmelee v. Lawrence (1867), 44 Ill. 405, and City of Chicago v. Babcock (1892), 143 Ill. 358, contends that the appellate court should have focused on the intent of the parties in executing the release rather than looking at the language of the document standing alone. The intent of the parties, the plaintiff contends, was to release only Rainwater and his insurer from liability. The prime indicator of this intention, it is said by the plaintiff, is that "at the time the document was executed, the only defendant in the lawsuit was Rainwater and a claim against Ford had not even been contemplated by the plaintiff."
At common law, the full release of one of several joint tortfeasors released all, even if the release contained an express reservation of rights against the others. (Rice v. Webster (1857), 18 Ill. 331; Benjamin v. McConnel (1847), 9 Ill. 536; Prosser, Torts sec. 49, at 301 (4th ed. 1971); 4 Corbin, Contracts sec. 931, at 737 n. 72 (1951).) This rule was widely criticized and was modified so that if a release contained an express reservation of rights against others it would be interpreted to be a covenant not to sue which would have the practical effect of releasing only the person or persons named in the instrument. (J. Calamari & J. Perillo, Contracts sec. 20-3, at 745 (2d ed. 1977); Williston, Contracts sec. 338, at 710 (3d ed. 1959).) In Parmelee, the court stated:
"If [the instrument executed] is to be regarded as an absolute and unconditional release of [one co-obligor], it must also operate as a discharge of his co-obligors, and the mere fact that, when a release is executed, the parties are ignorant that such will be its legal effect, will not prevent its so operating if executed and delivered unconditionally and without reference to its bearing upon other parties. But a release, like every other written instrument, must be so constructed as to carry out the intention of the parties. This intention is to be sought in the language of the instrument itself when read in the light of the circumstances which surrounded the transaction." 44 Ill. 405, 410.
The plaintiff interprets this language as support for her contention that her claim against Ford is not barred in the absence of a showing that the administrator bank and Rainwater specifically intended that the effect of the document was to release Ford. That interpretation of Parmelee is not reasonable.
The court in Parmelee stated that whether the party executing the instrument intended it to serve as "an absolute and unconditional release" of one co-obligor or concurrent tortfeasor was the intent to be examined. If "the language of the instrument itself when read in the light of the circumstance which surrounded the transaction" expresses such an intention, the instrument "must also operate as a discharge of his co-obligors" or concurrent tortfeasors whether or not "the parties are ignorant that such will be its legal effect" unless there is an express ...