Negligence. Joint Tortfeazors. Release. Commonwealth. If a civil engineer employed by the metropolitan water and sewerage commissioners, who is in charge of the work growing out of the construction of the Wachusett reservoir and whose duty it is to inspect all the work as it progresses, in the course of the performance of his duties is present, sitting with a masonry inspector on a derrick boom lying near and instructing the inspector in regard to the way in which his work is to be done, while the servants of one who has a contract with the Commonwealth for the construction of a masonry arch bridge over the Nashua River are engaged in erecting a derrick as a preliminary to the construction of the arch, and owing to the negligence of the servants of the contractor is struck and injured by the foot of the mast of the derrick swinging out as it is being hoisted into place, in an action against the contractor for his injuries, it cannot be ruled as matter of law that he was a mere volunteer or licensee or that he was not in the exercise of due care or assumed the risk of such an accident.
If a civil engineer, employed by a board of commissioners to take charge of and inspect certain work in behalf of the Commonwealth, while acting in the course of his duties is injured through the negligence of the servants of a contractor who has a contract with the Commonwealth for a part of the work of which he is in charge, and signs a paper agreeing in consideration of receiving his pay while absent from duty and being indemnified for hospital expenses and doctors' bills to make no claim upon the Commonwealth for the injury, this instrument has no effect to bar an action against the contractor for his injuries.
In order that the release of one of several joint tortfeasors shall discharge the others the person released must be capable of being sued for the joint liability.
The principle, that the release of one of several joint tortfeasors operates as a bar to a recovery against the others, has no application where the party released is the Commonwealth which cannot be sued as a tortfeasor.
MORTON, J.
This is an action of tort for personal injuries sustained by the plaintiff on July 26, 1904, at West Boylston while at work as a civil engineer and inspector for the metropolitan water and sewerage board. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain instructions that were requested. The instructions requested were in substance that on all the evidence the plaintiff could not recover, that he was not in the exercise of due care, that he assumed the risk, that he was a mere volunteer or licensee, and that a certain release given by the plaintiff to the Commonwealth operated as a bar to his recovery in this action.
Without reviewing it in detail we think that there was evidence of negligence on the part of the defendant. There was testimony tending to show that there should have been guys on the bottom of the derrick or that it should have been steadied by hand, and the jury were warranted in finding, if they did so find, that the accident was due to failure on the part of those in charge of the work of setting up the derrick to use one or the other of these precautions. The jury might also have found that there was negligence on the part of the engineer in regard to the manner in which he operated the engine. One witness testified that he, the engineer, "opened the throttle of the engine; he gave it a yank; didn't intend to pull it out so far; . . . if just a strain had been taken, no trouble would have happened. An excessive yank caused the trouble."
It could not be ruled as matter of law that the plaintiff was a mere volunteer or licensee, or that he was not in the exercise of due care, or that he assumed the risk. The defendant concedes that the plaintiff rightfully entered on the premises where the defendant's men were setting up the derrick. If the jury believed the plaintiff, as they must have done, he was there in the performance of duties required of him by the nature of his employment under the contract between the defendant and the Commonwealth, and therefore was not a volunteer or licensee. And the jury properly could have found, and no doubt did find, that in sitting down on the boom, as he and Allen did, the plaintiff had no reason to apprehend any danger from the derrick, and therefore was not wanting in the exercise of due care, and did not assume the risk of the accident which occurred. Mahar v. Steuer, 170 Mass. 454. McMahon v. McHale, 174 Mass. 320.
The remaining question relates to the effect of the paper signed by the plaintiff agreeing, in consideration of receiving his pay while absent from duty and being indemnified for hospital expenses and doctors' bills, to make no claim upon the Commonwealth for the injury. We assume in favor of the defendant that the paper, though not under seal, operated as a release of any claim which the plaintiff had against the Commonwealth. It is well settled that a release of one of several joint tortfeasors will operate as a bar to a recovery against the others. But in order to have that effect we think that the party to whom the release is given must be one against whom an action would or might lie, and that a claim has been made for or on account of the alleged tort. It is not necessary that it should appear that he was in fact liable (Leddy v. Barney, 139 Mass. 394), or that there should have been concert of action amongst the alleged joint tortfeasors. Stone v. Dickinson, 5 Allen, 29. A gift from one of the joint tortfeasors will not operate to bar a recovery against the others. Leddy v. Barney, supra. There must be something in the nature of a claim on the one hand, and of possible liability under the rules of law applicable to the matter on the other, in order to render the release a bar to recovery against other joint tortfeasors. In the present case no action could have been maintained against the Commonwealth for the alleged injury. Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28. It was not legally answerable in tort to the plaintiff or to any one, and besides, no claim was made by the plaintiff against the Commonwealth. What was received by the plaintiff from the Commonwealth must be regarded therefore as in the nature of a gift or gratuity, and not as something paid in satisfaction of an injury for which it was or might be liable according to established rules of law, or of a claim made upon it by the plaintiff.
Exceptions overruled.