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Show FRIDAY, JANUARY 11. 1974 TNI RECORD DAILY PACE SEVEN Court of the State of Utah 1 That respected authority also injury was a proximate result of A's negligence, so out two a is if that person points separate wrongdoers, a settlement injured by and release entered into with one, should not be deemed to release the other un less the language of the release clearly indicates that such was the intention of the parties, Daniel E. Catmull and Sharon B. Catmull, his wife, Plaintiff! and Appellants, Counsel i Samuel King 409 Boston Bldg. v, No. 13307 FILED January 2, 1974 Medical Integrated Inc. , Systems, ' Defendant and Respondent. Counsels CROCKETT. L. M. Cummings, Worsley, Snow ft Christensen David V; Slagle Su-lfo?1- sound We have no disagreement with the principles just stated.1 They-arWo sepaenough when applied to appropriate situations, where there are in fact rate and independent tort feasors, who by independent acts of negligence cause separate injuries and damages to another person. But that is not this case. The plaintiffs did and could suffer only one loss and damage from the death of their The son; and the law allows them only one cause of action to recover therefor. Clerk ' Continental Bank Bldg. 00 instant case is not analogous to the example given above where an injury is inflicted by a first actor A, and there is a subsequent injury by a second actor B, resulting in further injury and damage. It is better compared to a situation where a first actor A, has taken property of the plaintiff and converted it to his own use, so that the plaintiff has been deprived of all of the value therein; and the plaintiff accepts settlement from A on that claim. No matter what a second actor B may have done to the property, he would cause no further damage to the plaintiff. Consequently, plaintiff could recover no damage from B. The plaintiffs sued the defendant ambulance, service alleging neglison Clark at gence in connection with the drowning of their eleven-year-o- ld the Hygeia Ice Company pool in Sugarhouse on July 15, 1970. On the basis of the pleadings, answers to interrogatories and stipulated facts, the trial court granted defendant's motion for summary judgment on the ground that a settlement and release of the swimming pool operator, Hygeia Ice Company, also constituted a release of this defendant. Plaintiffs appeal. On the day mentioned plaintiffs' son Clark had gone with a church party to the swimming pool. During its progress Clark's friend Rick Crawford saw him lying at the bottom of the pool. The lifeguard and others resuscitation pulled him out and attempted to revive him by and other measures for a period of about 20 minutes until defendant's ambulance arrived. There is a dispute of fact as to what this accomplished. In answers to interrogatories, plaintiffs state that Clark had substantially revived; that though hie was still unconscious, he had a heartbeat and pulse ' and was breathing when the ambulance took him. Whereas, defendant states ' that he had definitely expired and that there was no revival. It is not disputed' that he was dead on arrival at the hospital. ' mouth-to-mou- th i i j Pursuant to negotiations through their attorney the plaintiffs entered into an agreement of settlement and release which stated: - Whereas, on or about the 15th day of July, 1970, an accident occurred, resulting in bodily injuries to Clark Nelson Catmull, a minor, . . . and, whereas claims are made against Hygeia Ice Company, et al . . . for such injuries . . . for themselves and as parents, . . . and, whereas a dispute has arisen with respect to the legal ' , liability for such injuries, . . . i THEREFORE, the claimants in full accord and satisfaction of such disputed claims, do hereby acknowledge the receipt of the sum of Five thousand dollars, ($5,000.00) paid by the said Hygeia Ice Company, et al and, in consideration thereof, the claimants do hereby . . . release, and forever discharge the said Hygeia Ice Company, et al . . . of and from any and all claims, . . ,. and causes of action of whatsoever kind and nature, arising from, . . . any and all known and unknown, foreseen and unforeseen . . . in. . . and the consequences thereof, . . . NOW, juries, ... AND, FURTHERMORE, We . . . do hereby . . . agree, to indemnify and hold forever harmless the said Hygeia Ice Company, et al . . . against loss from any and all further claims, demands and actions . . . that may hereafter at any time . '. . brought by . . . anyone on behalf of said minor . . . for damages on account of the injuries sustained In "attempting to reverse the ruling that the foregoing release barred th. m from maintaining this suit, the plaintiffs urge these propositions: (1) That thre is an issue of fact as to whether Clark had expired at the time defendant took charge of him and placed himtin its ambulance; (2) as to whether the defendant was guilty of negligence subsequent to and independent from any measures to save negligence of the Hygeia Company in failing to take proper ran only to that the release the boy's life on the way to the hospital; and (3) that company .... In regard to plaintiffs' arguments; as to (1) above, It is true that the insurance release form used is laden with the usual " verbiage about all injuries and damage, past, present and future, real and imagined, without mentioning the simple and vital fact of the boy's death. Nevertheless, when it was executed everyone concerned knew that he was long since dead, and the only purpose the settlement could have was to compensate the plaintiffs for whatever damage they suffered by reason of the death of their son. We see no logical basis for a conclusion that the single cause of action, concerning which the plaintiffs had agreed to and accepted a settlement, could be regarded as being divided into two separate causes of action, with the plaintiffs retaining one to be asserted against a subsequent (defendant ambulance company) who could have caused them alleged tort-feasno further damage. Accordingly, inasmuch as it appears that the plaintiffs had accepted the settlement and released their claim for their loss from the death of their son, trial court was justified in his determination that there remained to them no further cause of action on which to maintain this suit against the defendant ambulance company. 1. Law of Torts, Prosser, 3d ed. 1964, p. 255; though not pertinent here, we note our accord with the professor's further statement that the converse . is not true. If X sues B, he can recover only for his broken leg, because B had nothing to do with causing the prior injury, the skull fracture. 2. ibid, p. 272. 3. Sec. U.C.A. 1953, 4. That in dealing with such problems, importance is placed on the evident full settlement with the first alleged wrongdoer, see Williams v, Greene, 29 Utah 2d 141, 506 P- 2d 64; Daily v. Somber g 28 N.J. 372, 146 A. 2d 676. Our conclusion just stated makes it unnecessary to be concerned with the other problem which would arise from the defendant's contention that the conduct of the Hygeia people and of the defendant, in attempting to save the boy's life were so interrelated that they should be regarded as one integrated occurrence, so that if they committed a wrong, they should be regarded as joint tort feasors; and the plaintiffs having accepted settlement and released one (Hygeia),' without reserving rights against the 5 other, (this defendant) had the effect of releasing them both anyway. "boiler-plate- or ' . 78-11- -6, - On the basis of our discussion herein it is our opinion that the trial not err in granting the defendant's motion for summary judgment.' did court .. .. Affirmed. Costs to defendant (respondent). WE CONCUR: E. R. Callister, Jr., Chief Justice F. Henri Henriod, Justice it is to be conceded A. H. Ellett, Justice that there is a disputed issue as to whether Clark was alive when the ambulance let it be assumed that there arrived; as to (2), in order to get to the core'issue. ' In regard to the (3), whether 'is also an issue as to the defendant's negligence " "the release to'Hygeia' barred thisaction against this defendant, perhaps as clear R. L. Tuckett, Justice a way as any to approach the problem is to take the example stated by professor Prosser in his text on torts: Motorist A negligently runs his car over X, a B and U.C.A. 1953, of the Joint Obligors Act. 5. See Sees. him in the street. Motorist indicates it Its pedtstrian, and fractures his skull, and leaves applies to tort actions; and it provides that language plainly ' then negligently fails to see. X in the street, runs over him and breaks his leg, one is a settlement with all, unless otherwise indicated with settlement X sues A. He can recover from A for both the skull fracture and for the broken and a right to sue is reserved. B was reasonably forseeable and thus the further of act the later because leg, The statute2 which applies to divorce cases reads: Edwina A rends, When a decree of divorce is made, the court may make such No. 13349 Plaintiff and Respondent, , ! V in relation to the children, property and'parties, and thf B. Rowe orders Del Counsel FILED , S. E. 3. maintenance of the parties and children, as may be equitable:. . . &p January 2, 1974 In divorce cases the welfare of the minor children is of paramount im David D. A'rends, nee in determining custody. This court in the case of Sampscll v. Holt porta L. M. Cummings, Clerk Defendant and Appellant. said: Counsels Galen Ross Child custody proceedings are equitable in the highest 731 E. South Temple degree, and this court has consistently held that the best ELLETT. Justice: and welfare of the minor child is the controlling interest The parties Hereto were divorced on April 13, 1972, and the defendant factor in every case. was given the temporary custody of the minor child born during the marriage. At the hearing from which this appeal was taken, the trial court hard At that time the plaintiff was not physically well and also had some emotional evidence, and based thereon he determined that the mother was a fit and prop r disturbance. person to have the care, custody, and control of the minor child and that th Mrs. Arends made several efforts to have the court award the care, of the child would best be served in placing it with the mother. welfare custody, and control of the child to her permanently, the last effort resulting We are unable to say that the judge abused. his discretion in that regard, in such an order being made. Mr. Arends appeals from that order and claims and the judgment is therefore affirmed. Costs are awarded to the respond nt. U.C.A. 1953,' as amended (1973 Pocket Supplement), that Section violates the equal protection clause of the State and Federal Constitutions. WE CONCUR: The wording of the statute which he claims violates his rights reads: E. R. Callister, Jr., Chief Justice F. Henri Henriod, Justice In determining custody, the court shall consider the natural the and child the presumption of best interests that the mother is best suited to care for young children . . . R. L: Tuckett, Justice J. Allan Crockett, Justice The contention might have some merit to it in a proper case if the father 1. Johnson v. Johnson, 7 Utah 2d 263, 323 P. 2d 16 (1958); Sampsell v. Holt. was equally gifted in lactation as is the mother. However, the section doits not 115 Utah 73, 202 P. 2d 550 (1949). evn apply to divorce cases. It applies to cases of separation and when th Sec. U.C.A. 1953. as amended (1973 Pocket Supplement). 5.. 115 Utah 73, 80, 162 P. 2d 550 (1959). dissolved. or void is declared marriage 15-1- -4 15-1-- 5, :. : ... - 30-3-1- 0, ... ... 30-3-- 1 5, . |