Abott v. City of Senath
Decision Date | 27 July 1922 |
Docket Number | No. 22522.,22522. |
Citation | 243 S.W. 641 |
Parties | ABOTT v. CITY OF SENATH. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Pemiscot County; Sterling E. McCarty, Judge.
Action by C. H. Abbott against City of Senath. Plaintie died, and the cause was revived In the name Of his administratrix, Elizabeth Abbott. From a judgment for defendant, plaintiff appeals. Affirmed.
W. G. Bray, of Senath, and McKay & Jones, of Kennett, for appellant.
James A. Bradley, of Kennett, for respondent.
This suit was brought by C. H. Abbott against the city of Senath for personal injuries. It was instituted in the circuit court for Dunklin county, and afterwards taken to the circuit court for Pemiscot county on change of venue. During the pendency of the action Abbott died, and the cause was revived in the name of his administratrix.
Abbott was injured January 16, 1918, while walking along one of the streets of the city of Senath by the falling of an awning upon him. The awning, which was constructed of wood and supported by iron posts, was attached to the front of a building, and extended out over the sidewalk along the street. The building of which it was a part was owned by the Senter Commission Company of St. Louis, but was at the time occupied under a lease by the Petty Store Company. The evidence tended to show that the awning was caused to fall by snow and ice which had accumulated thereon between December 7, 1917, and January 16, 1918.
In addition to bruises and internal hurts, Abbott sustained a fracture of the upper third of the femur of one leg. He partially recovered from his injuries; the fracture healed; but there was a shortening of the leg, which caused him to walk with a limp. A little more than a year after he was injured he was stricken with pneumonia and died. The physician who treated him for the injury and who attended him in his last illness gave it as his opinion that the injury did not in any way contribute to his death.
On March 11, 1918, following his injury in January, Abbott received from the Senter Commission Company the sum of $500, and gave his receipt therefor. The receipt was in words and figures as follows:
"$560.60. Senath, Missouri, March 11, 1918.
On March 21, 1918, Abbott also received $250 from the Petty Store Company, and executed to them an acquittance, which recited among other things that such sum was paid and received in settlement and compromise of Abbott's claim against that company for his injuries. After that—the precise date is not shown by the record here —he instituted this suit against the city of Senath to recover full compensation for the injuries sustained by reason of the awning having fallen upon him.
The petition counted on negligence on the part of defendant city in permitting the accumulated snow and ice to remain on the awning after it knew, or by the exercise of ordinary care could have known, that the awning by reason of such accumulation had become dangerous to pedestrains passing along the, street and sidewalk under it.
As an affirmative defense the answer alleged that the injury for which plaintiff sued was the result of the joint wrong of the defendant city, the Senter Commission Company, and the Petty Store Company, and that the Senter Commission Company had paid C. E. Abbott, the person injured, and the said Abbott had received and accepted, the sum of $500 in full satisfaction and discharge of the cause of action set forth in the petition.
For defendant the court instructed the jury:
"If you find and believe from the evidence that the injured party, C. H. Abbott, in his lifetime, received from the Seater Commission Company the sum of $500 for the injury in question and complained of in plaintiff's petition, and that he accepted the sale sum of $500 in full of all demands for the injury received by him on account of the falling of the awning as complained of in plaintiff's petition, * * * your verdict will be for the defendant, * * *"
The verdict and judgment were for defendant. Plaintiff appeals.
The only question involved in the case is whether the receipt by Abbott of $500 from the Senter Commission Company and the acknowledgment he made in connection therewith operated as a discharge of his cause of action against the city of Senath. Appellant contends that they did not for these reasons: First, the Seater Commission Company was not in fact liable for Abbott's injury, hence was not a joint tort-fencer; and, second, Abott's settling with the company, even if it was a joint tort-tensor, did not preclude him from suing the defendant city for the balance of the compensation to which he was entitled.
1. It is a just and well-established doctrine that there shall be but one satisfaction accorded for the same wrong. If one be injured by a tortious act, he is entitled to compensation for the injuries suffered, and, if several persons are guilty in common of the tort, the injured one has his right of action for damages against each and ad of the joint tort-feasors, and may at his election sue them individually or together. But if he receive fall satisfaction from one of them, his right of action against the other is thereby extinguished. Dulaney v. Buffum, 173 Mo. 1, 73...
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