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Tino v. Stout

Decided: May 8, 1967.

ANNA TINO AND PELLEGRINO TINO, PLAINTIFFS-APPELLANTS,
v.
ROBERT F. STOUT, DEFENDANT-RESPONDENT, AND FRANCES LONG, ET AL., DEFENDANTS



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.

Schettino

This is a joint tortfeasor contribution case.

On June 26, 1952 plaintiffs instituted this action against defendant Robert F. Stout and defendants Frances and Jack Long for damages as a result of injuries suffered on February 1, 1951 by plaintiff Anna Tino, while she was a pedestrian on Lincoln Avenue, Newark. Defendants' vehicles collided at the intersection of Lincoln and Chester Avenues and one of the vehicles mounted the curb and struck Anna Tino.

On December 29, 1954 the Tinos recovered a total judgment of $8,174.95, plus $83.14 costs, against all defendants.

Stout's total insurance coverage, $5,000, and $83.14 costs were paid to plaintiffs by Stout's insurance company. A warrant of partial satisfaction in the amount of $5,083.14 was issued to the Clerk of the Superior Court, acknowledging receipt of that amount, but leaving unpaid $3,174.95. The warrant on its face did not release Stout from his obligation on the balance of the judgment.

Early in 1959, plaintiffs moved against defendants Frances and Jack Long. An attorney for the Longs indicated that the Longs were without assets and would be required to file a bankruptcy petition to discharge the judgment. The attorney proposed a settlement of $350 to avoid the bankruptcy, which proposal was not accepted by the plaintiffs.

Instead, plaintiffs applied for a wage execution against defendant Long. Long requested a hearing on the wage execution application. At the hearing it was again suggested that the parties attempt to settle the claim against the Longs. As a result, plaintiffs and the Longs settled the judgment against the Longs for $750. On April 21, 1960 plaintiffs executed a warrant of partial satisfaction only insofar as the Longs were concerned. The warrant purported to reduce the amount still owed by Stout to $2,424.95.

The whereabouts of defendant Stout during all of this time is somewhat unclear. It is not apparent from the record whether Stout was deliberately hiding in an attempt to avoid his obligations under the judgment or whether he thought his obligations were taken care of by his insurance company. Several attempts were made by attorneys for the plaintiffs in New York and in New Jersey to locate Stout but all these attempts failed.

In the summer of 1964 defendant Stout returned to the scene by giving notice to all parties that he was moving for an order directing satisfaction of the judgment as to him. After oral argument, defendant Stout's motion was granted.

Plaintiffs appealed and the Appellate Division affirmed, with one judge dissenting. (90 N.J. Super. 395 (App. Div. 1966)).

The majority opinion in the Appellate Division reasoned that under the decision of Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954) (Judson I), the warrant of partial satisfaction given by plaintiffs to defendants Frances and Jack Long automatically gave defendant Stout the benefit of a pro rata reduction and as Stout had already paid more than his pro rata share, the judgment was satisfied as to him also. The dissenting judge held that defendant Stout is entitled only to a pro tanto credit on the judgment for the amount received by plaintiffs from the Longs. He reasoned that the Judson I case is distinguishable because

in Judson I the settlement occurred before judgment, whereas here it occurred after judgment.

Plaintiffs do not seek to upset the pro rata rule which was adopted in the Judson I case.

Plaintiffs argue, however, that in this case defendant Stout is entitled only to a pro tanto credit on the judgment for the amount received by plaintiffs from the Longs. Plaintiffs assert that the first warrant of partial satisfaction was an acknowledgment that $5,083.14 had been received by them and authorized the reduction of the judgment to $3,174.95. The warrant on its face indicates that it was not intended as a full satisfaction of the judgment insofar as defendant Stout was concerned. The pertinent part of the warrant reads as follows:

"AND WHEREAS, Anna Tino and Pellegrino Tino have received a partial satisfaction for the same by the payment to them of the sum of Five Thousand and Eighty-three dollars and Fourteen ($5,083.14) Cents, the receipt whereof is hereby acknowledged; from the said Robert F. Stout:

THESE ARE THEREFORE, to authorize you to reduce the amount of said judgment to $3,174.95, insofar as the same affects the said Robert F. Stout:"

Plaintiffs argue that the second warrant of partial satisfaction given to the Longs by plaintiffs differs from the first. In the second, it is clear that plaintiffs and the Longs intended that the $750 received from the Longs was to be a full satisfaction of the judgment insofar as the Longs and the plaintiffs were concerned. This warrant compromised the full amount due on the judgment to the plaintiffs by the Longs for $750. Thus, the plaintiffs were fully satisfied insofar as the Longs were concerned but not as far as defendant Stout for plaintiffs clearly stated that they were not releasing Stout:

"AND WHEREAS, Anna Tino and Pellegrino Tino have received additional partial satisfaction for the same by the payment to them of the sum of Seven Hundred Fifty ($750.00) Dollars, the receipt whereof is ...


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