Bailey v. Delta Electric Light, Power & Mfg. Co.
| Decision Date | 08 May 1905 |
| Citation | 38 So. 354,86 Miss. 634 |
| Parties | WASHINGTON BAILEY v. DELTA ELECTRIC LIGHT, POWER & MANUFACTURING COMPANY |
| Court | Mississippi Supreme Court |
FROM the circuit court of Washington county, HON. A. McC. KIMBROUGH, Chancellor.
Bailey the appellant, was plaintiff in the court below; the Delta etc., Company, the appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court.
Bailey brought this suit against the Delta Electric Light, Power & Manufacturing Company and the Cumberland Telephone & Telegraph Company to recover damages for personal injuries. The Cumberland Telephone & Telegraph Company pleaded the general issue and accord and satisfaction, and filed with the latter plea a written release from all actions, causes of actions, suits, controversies, claims, and demands for the injuries received by Bailey. Appellee pleaded the general issue and accord and satisfaction, and filed with the latter plea a copy of the release made by plaintiff to the Cumberland Telephone & Telegraph Company. Plaintiff dismissed the suit as to be Cumberland Telephone & Telegraph Company and filed the following replication to the plea of accord and satisfaction filed by appellee:
"Plaintiff, in accepting the sum of $ 56.65 from the Cumberland Telephone & Telegraph Company, and in executing the release, should not be precluded from recovering against the Delta Electric Light, Power & Manufacturing Company, because the release was not intended to be in full settlement of said cause of action, but was intended to be only a partial settlement of said cause of action, and a release of the said telephone and telegraph company, and, not a settlement with and release of the Delta Electric Light, Power & Manufacturing Company; that the sum so paid was paid and received only for the purpose of, and as a partial compensation to, plaintiff for his physician's bill and loss of time, and for which plaintiff released the Cumberland Telephone & Telegraph Company, to which the Delta Electric Light, Power & Manufacturing Company was not a party or in any way a beneficiary, and, at best, could only have the sum so paid credited on its liability to plaintiff; that, while the defendants were joint tort feasors, they were only so by the concurrence of their negligence, which negligence was, as to the Cumberland Telephone & Telegraph Company, permissive, while as to the Delta Electric Light, Power & Manufacturing Company it was commissive, and the partial settlement with the Cumberland Telephone & Telegraph Company cannot be availed of by the Delta Electric Light, Power & Manufacturing Company as a defense in this cause."
The defendant demurred to this replication, and the demurrer was sustained by the court. Plaintiff declined to plead further, and judgment final was rendered against him.
Reversed and...
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