Keadle v. Padden

9 Citing cases

  1. Cranford v. McNiece

    450 P.2d 529 (Or. 1969)   Cited 13 times
    Stating rule in tort context

    We took cognizance in that case that there were numerous decisions from other jurisdictions which seemingly adhered to the original rule but which developed distinguishing concepts to reach results in conformance with the intention of the parties. In Keadle v. Padden, 143 Or. 350, 361-366 (1933), this court applied one of these distinctions or exceptions to the original rule and held that the joint tort-feasor was not released. In that case an injured employee, the plaintiff, on July 1, 1930, signed a document which appeared to be a release of his employer, Varney Air Lines, from any liability for injuries to plaintiff.

  2. McKay v. Pacific Bldg. Materials Co.

    156 Or. 578 (Or. 1937)   Cited 15 times
    In McKay v. Pacific Bldg. Materials Co., 156 Or. 578, 589, 68 P.2d 127 (1937), the document was phrased in terms of a covenant not to sue and expressly reserved the right to bring an action against another alleged tortfeasor.

    " The authorities are in conflict as to the effect of such an agreement as the one above set out; but this court has recognized the rule which construes such an agreement as a covenant not to sue: Keadle v. Padden, 143 Or. 350, 362 ( 20 P.2d 403, 22 P.2d 892). The subject is discussed, and authorities cited, in 53 C.J., Subject, Release, p. 1263, § 80; 58 L.R.A. 293, 92 Am. St. Rep. 882; Murray v. Helfrich, 146 Or. 602, ( 30 P.2d 1053). Giving said agreement the construction above indicated, namely, that it is a covenant not to sue, renders untenable defendants' first three assignments of error.

  3. Personius v. Asbury Transportation Co.

    53 P.2d 1065 (Or. 1936)   Cited 7 times
    In Personius v. Asbury Transp. Co. of Oregon, Inc., 152 Or. 286, 53 P.2d 1065, an employee was injured in Idaho and received a full award in that state. Under the laws of Idaho he could not recover more at law or under the Workmen's Compensation Law. He then brought suit against the third party causing the injury in Oregon.

    Many cases are cited in support of these contentions by the defendant, all of which involve workmen's compensation laws and for the purpose of analysis are here classified. (1) In these instances there is shown an aggravation of the injury due to the negligence of the attending physician: Roman v. Smith, 42 F.2d 931 (Idaho); McDonald v. Employers' Liability Assurance Corporation, Ltd., 288 Mass. 170 ( 192 N.E. 608); McDonough v. National Hospital Ass'n, 134 Or. 451 ( 294 P. 351), which case is explained in Keadle v. Padden, 143 Or. 350 at 365 ( 20 P.2d 403, 22 P.2d 892). In all these cases it is held that the injury resulting from the negligence of the physician became a part of the original injury and was to be taken into consideration in the adjustment of compensation due the injured workman.

  4. Murray v. Helfrich

    146 Or. 602 (Or. 1934)   Cited 17 times

    " Counsel also refers to Keadle v. Padden, 143 Or. 350 ( 20 P.2d 403, 22 P.2d 892), as holding that the amount paid by one joint tort-feasor should not be applied pro tanto to mitigate the damages against the other. In that case the question of the amount received from one joint tort-feasor on an agreement not to sue was argued to this court to be a complete bar to the action against the other joint tort-feasor.

  5. Rudick v. Pioneer Memorial Hospital

    296 F.2d 316 (9th Cir. 1961)   Cited 8 times
    In Rudick v. Pioneer Memorial Hospital, 296 F.2d 316 (9th Cir 1961), the plaintiff was injured in an automobile accident.

    "Although the document involved in this case purports to be a general release, we do not consider that fact to be controlling on the question of the intention of the parties. "In Keadle v. Padden, 143 Or. 350, 20 P.2d 403, 22 P.2d 892, an employee of an air transport company who had sustained injuries in an examination conducted by a company doctor, brought an action for malpractice against the doctor. The plaintiff was permitted to introduce parol evidence to establish that a release executed to his employer purporting to `extinguish all liability of whatever kind arising out of said injuries' was intended as only a partial release.

  6. Southern Pacific Co. v. Raish

    205 F.2d 389 (9th Cir. 1953)   Cited 10 times

    The release of one of the joint or concurrent tortfeasors acts as a release of the others as well. Stires v. Sherwood, 1915, 75 Or. 108, 145 P. 645; Spiess v. Sommarstrom Ship Building Co., 9 Cir., 1921, 272 F. 109; Pacific States Lumber Co. v. Bargar, 9 Cir., 1926, 10 F.2d 335, 337; Murray v. Helfrich, supra. However, in many jurisdictions, among them the State of Oregon, the strict release rule may be avoided by use of a "Covenant Not to Sue". Keadle v. Padden, 1933, 143 Or. 350, 362, 20 P.2d 403, 22 P.2d 892, 893; McKay v. Pacific Building Materials Co., 1937, 156 Or. 578, 68 P.2d 127; Stires v. Sherwood, supra; Pacific States Lumber Co. v. Bargar, supra. A "Covenant Not to Sue" preserves the legal cause of action while at the same time it bars the right of recovery from the particular person with whom the covenant is made. 76 C.J.S., Release § 44; Pellett v. Sonotone Corp., 1945, 26 Cal.2d 705, 160 P.2d 783, 160 A.L.R. 863. In the latter case the Supreme Court of California, in construing an agreement essentially like one in suit, said: "On the other hand, the agreement does not purport to be, nor can it be construed strictly to be, a covenant not to sue, since it does not contemplate a cessation of the existing litigation, but on the contrary provides for continuation of the trial and places on defendant Compton the burden of defending the action until the rendition of a verdict or a nonsuit.

  7. Condor Inv. Co. v. Pacific Coca-Cola Bottling Co.

    211 F. Supp. 671 (D. Or. 1962)   Cited 7 times
    Finding outright payment despite use of loan receipt

    Both the Furrer and the Lamb-Weston cases indicate that the intention of the parties controls the validity of the loan receipts. Defendant being a third party, the parol evidence rule has no application. Keadle v. Padden, 143 Or. 350, 20 P.2d 403, 22 P.2d 892; Commercial Securities v. Mast, 145 Or. 394, 28 P.2d 635, 92 A.L.R. 194. This is a case where the documents are highly ambiguous and contradictory. In such case, in order to determine the intention of the parties, I must look to the practical interpretation as placed on those instruments by the parties themselves.

  8. Hicklin v. Anders

    253 P.2d 897 (Or. 1954)   Cited 24 times

    To support his motion Anders relies on the rule that the release of one or two or more joint tort-feasors releases all. Stires v. Sherwood, 75 Or. 108, 145 P. 645. He concedes that in this state, as in most other jurisdictions, this rule has no application to a covenant not to sue. McKay v. Pacific Bldg. Materials Co., 156 Or. 578, 68 P.2d 127; Murray v. Helfrich, 146 Or. 602, 30 P.2d 1053; Keadle v. Padden, 143 Or. 350, 362, 366, 20 P.2d 403, 22 P.2d 892. But he argues that in this case the suit is an accomplished fact and therefore an agreement not to sue is meaningless; and that the "Covenant" is in fact an accord and satisfaction which operates as a discharge of the judgment and of both joint tort-feasors, citing 1 Am Jur 257, Accord and Satisfaction §§ 8, 73; Clay v. Hoysradt, 8 Kan. 74; Cooper v. Sagert, 111 Or. 27, 223 P. 943; Restatement, Torts § 886. It is sufficient to say of the decisions cited that they are not in point.

  9. Board of Medical Examiners v. Buck

    192 Or. 66 (Or. 1951)   Cited 13 times

    "Is is a general rule that `an amendment of a pleading will take effect by relation and thus relieve against the bar of an intervening limitation if the identity of the cause of action is still substantially the same, but that the limitation will prevail if under the guise of an amendment there is the substitution of a new cause of action in place of another wholly different.'" To the same effect see Fox v. Ungar, 164 Or. 226, 98 P.2d 717; Richardson v. Investment Co., 124 Or. 569, 264 P. 458, 265 P. 1117; Keadle v. Padden, 143 Or. 350, 20 P.2d 403, 22 P.2d 892. Since the practice before the Board is to conform as nearly as practical to equity suits, O.C.L.A., § 54-932 (l), and since the amended complaint adds no new cause of action, it should be held to relate back to the date of the filing of the original complaint.