 SIBLEY, Circuit Judge (dissenting). I am not content with what has been said and done about the release. That Williams has been found too ignorant to know that light wires coming directly from the light poles are liable to have electricity in them only emphasizes that his employer ought to have warned him and to have seen that his place of work was safe. There is a plain case of concurring negligence against the telegraph company and the electric company. At some unstated time during Williams’ employment by the telegraph company it set up its “pension and benefit plan.” It does not appear that his wages were reduced because of it, or that he contributed in any way to it or became bound by it. So far as appears, it is merely a standing offer by the company to pay any employee who becomes totally disabled by reason of an accident in the course of employment thirteen weeks’ full pay and after that half pay, together with treatment and medicine ; the employee on electing to accept the offer having to give a written release of all claims against the company for damages. See footnote to majority opinion. Williams elected to accept the offer, and signed a very formal instrument so reciting, whereby in consideration of $1 and of the first installment benefit and of the company’s promise to pay all the benefits under the plan he “does hereby release and forever discharge said Company * * * of and from all manner of action, cause or causes of action, suits, damages, claims and demands whatsoever” growing out of his injury. It concludes: “In witness whereof I have hereunto set my hand and seal this the 31st day of August, 1932. W. M. Williams. Signed, sealed and delivered as to employee in the presence of T. Jackson, Mrs. Bertha Sarlo, G. C. Brad-dy.” Under it Williams at the time of the trial had received about $1,500, and will receive $660 per year for the remainder of his life. The law of Texas controls. A statute provides that the common law of England shall be the rule of decision and shall continue in force until altered by the Legislature. Article 1, Rev. Stats. 1925. The Legislature has changed the common law as to seals by providing: “No private seal or scroll shall be required in this State on any written instrument except such as are made by corporations.” Article 27. This means that a writing which at common law should have a seal is just as good without it in Texas. Wright v. Robert, 122 Tex. 278, 58 S.W.(2d) 67. The absence of a scroll or other form of seal after Williams’ name is wholly unimportant. This instrument, using the technical words of release, and signed, sealed, and delivered as a deed, is the perfect equivalent of a common-law technical release under seal. The common law as to the effect of such a release of one joint tortfeasor on the liability of another has never been changed by the Texas Legislature. In Robertson v. Trammell, 98 Tex. 364, 83 S. W. 1098, the Supreme Court referred to City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271, as a correct statement of the law, and to Abb v. Railroad Co., 28 Wash. 428, 68 P. 954, 92 Am. St. Rep. 864, 58 L. R. A. 293 and note. In the case from Illinois, which involved liabilities for concurring negligence as here, the common law is clearly stated that a full satisfaction or an accord and satisfaction for the injury from one of two tort-feasors would settle for both, that a technical release under seal of one without reserving any right against the other would also destroy the cause of action against both, but that a covenant not to sue one would not affect the other. A Texas Court of Civil Appeals in El Paso v. Darr, 93 S. W. 166, 167, held that a release of one against whom there was no real cause of action which expressly reserved rights against a third person did not release the third person; and St. Louis, I. M. & S. R. Co. v. Bass (Tex. Civ. App.) 140 S. W. 860, is to the same- effect. In Ziegler v. Hunt, 280 S. W. 546, the Texas Commission of Appeals approved the opinion in (Tex. Civ. App.) 271 S. W. 936, in which the plaintiffs sued one tort-feasor for $60,000, settled and released the defendant for $11,250, and then sued the other tort-feasor for $60,000 to be credited with the $11,250, asserting that the settlement was not intended as a full satisfaction nor to release the second defendant, but the court held that could not be shown and that the entire cause of action was gone. That the release of one person liable for concurring negligence will release the other was stated to be the common law *54in Chicago & Alton R. Co. v. Wagner, 239 U. S. 452, 36 S. Ct. 135, 60 L. Ed. 379, and the Illinois case of City of Chicago v. Babcock, supra, was cited. The federal case was similar to the one at bar except that the benefit fund was mostly raised from the employees, the employing company contributing only 15 per cent. It was held that a release given in order to participate in the fund did not bar the suit against the other negligent party, but only because the release was inoperative under the Federal Employers’ Liability Act (45 USCA §§ 51-59). The case of Ridgeway v. Sayre Electric Co., 258 Pa. 400, 102 A. 123, L. R. A. 1918A, 991, Ann. Cas. 1918D, 1, is not in point here. There the employee’s benefit involved was an insurance on his life, and is expressly so called, and it is evident that he had made contributions in the nature of premiums. The case was put under the rule that a tortfeasor has no right to profit by insurance paid for by the injured party. The court held also, a little rashly it seems to me, that the payments being wholly contractual the release given could have no reference to a tort liability. In this case Williams had no insurance and expressly released the tort for money paid and to be paid which otherwise he could not have got. The case of Lovejoy v. Murray, 3 Wall. 1, 18 L. Ed. 129, held that a judgment recovered against one tort-feasor with a partial collection on it was no bar to suit against the other tortfeasor. There was no release involved. As I understand the common law, a full satisfaction from one tort-feasor will satisfy as to all, but if a mere payment or settlement without a release is relied on it must have been intended as a full satisfaction. A release has no necessary relation to satisfaction. It was the common-law way of killing a cause of action without full satisfaction. If a technical release be given, it destroys the cause of action against all who are liable for the injury, because for' the one injury there is but one cause of action, notwithstanding it may be asserted severally against each. If one wishes to pay partially and be relieved, it has to be done by a covenant not to sue him. If a release is taken, it destroys the cause of action unless reformed for fraud, accident, or mistake. It has been said that a mere ignorance of its legal operation in releasing all is not ground to reform the release. Hunt v. Rhodes et al., Adm’rs of Rousmanier, 1 Pet. 1, 7 L. Ed. 27. But if the release shows on its face a reservation of the right of action against another, it is apparent that it is not really a release of it and will be given effect as a covenant not to sue. Perhaps the law ought to be that in a case of concurring negligence there are two causes of action and a release of one does not bar the other, but this court has no right thus to remake the law of Texas. If it had appeared that Williams had contributed to this benefit plan so that it could be called insurance bought by him, or if he could show that making this release was due to a mistake, entitling him to reform it, a different case might be made. As it is, we have a clear technical release of one contributor to. a single injury without any reservation, and according to the common law it destroyed the whole cause of action. If it could be treated as a covenant not to sue, the other tort-feasor would still be entitled to have credited the entire consideration, and this would include not only what was collected prior to the trial, but also the present value of installments yet to come. If the payments are insurance, no credit at all is due for them. The case does not seem to me to have reached a correct conclusion. 
Bryan, Sibley
Southwestern Gas & Electric Co. v. Williams
SOUTHWESTERN GAS & ELECTRIC CO. v. WILLIAMS
Fifth Circuit
Court of Appeals for the Fifth Circuit