Berry v. Pullman Co.

• Citation: 249 F. 816
• Decision Date: 16 March 1918
• Docket Number: 3177.
• Parties: BERRY v. PULLMAN CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

249 F. 816

BERRY v. PULLMAN CO.

No. 3177.

United States Court of Appeals, Fifth Circuit.

March 16, 1918

Rehearing Denied April 10, 1918.

Wm. D Anderson, of Tupelo, Miss., and Jas. A. Cunningham, of Booneville, Miss., for plaintiff in error.

Robert H. Thompson, of Jackson, Miss., and W. M. Cox, of Baldwyn Miss., for defendant in error.

Before WALKER and BATTS, Circuit Judges, and NEWMAN, District Judge.

NEWMAN District Judge.

The plaintiff in error here brought suit against the Pullman Company for damages, alleged in the petition to be $25,000 for injuries she sustained while being removed from a Pullman car on which she was a passenger from Memphis, Tenn., to Tupelo, Miss. She alleges that when she went on the Pullman car the company had notice that she was an invalid and would require special attention as such. The Pullman car was being operated from Memphis to Tupelo over the St. Louis & San Francisco Railroad, of which James W. Lusk, W. B. Biddle, and W. C. Nixon were at that time receivers. In being removed from the Pullman car, in an invalid's chair, she says, in her suit, that by the negligence of the Pullman employes she was allowed to fall on a hard rock pavement, and thereby received her injuries, which she says were severe and permanent. She says in her suit against the Pullman Company that:

'A porter of the defendant company willfully and negligently passed an 'All right' signal to the train to pull out at a time when plaintiff was in a position of great peril, and the same known to him, or by the exercise of reasonable care would have been known.'

As defense to this suit against the Pullman Company two special pleas were filed, in which it was set up, in effect, that the plaintiff, after she was injured, brought suit against the St. Louis & San Francisco Railroad Company, and its receivers, for such injury, and afterwards settled with the receivers for the sum of $1,000. The pleas, while somewhat different in character, make, with one exception, which will be referred to hereafter, a single question, and that is the claim that the release of the receivers of the railroad company for the sum of $1,000, and the paper executed to them as a release of liability on their part, had the effect of releasing also the other joint tortfeasor, the Pullman Company. The pleas are called the first and second pleas. The second plea has attached to it the following:

'Covenant Not to Sue.

'Whereas, on or about December 23, 1913, the undersigned, Annie T. Lee Berry, of Booneville, Mississippi, while a passenger on a passenger train of the St. Louis & San Francisco Railroad, then being operated by James W. Lusk, W. C. Nixon, and W. B. Biddle, receivers, while being removed from a car of the Pullman Company, at Tupelo, Mississippi, by employes of the said Pullman Company, she being then an invalid, received injuries, which she says are of a serious and permanent nature; and

'Whereas, the undersigned, Julius E. Berry, as the husband of Annie T. Lee Berry, claims to have been put to expense and suffered loss and damages by reason of the accident and injuries to his said wife, Annie T. Lee Berry; and

'Whereas, the undersigned, Annie T. Lee Berry and Julius E. Berry, claim that the accident and injury was the result of the actionable negligence of the receivers aforesaid, James W. Lusk, W. C. Nixon, and W. B. Biddle, and the Pullman Company, through their respective agents and employes, and being present and knowing the facts surrounding the accident and injury, believe the negligence of the aforesaid receivers to have been slight, while that of the Pullman Company was gross; and

'Whereas, James W. Lusk, W. C. Nixon, and W. B. Biddle, as receivers of the St. Louis & San Francisco Railroad, are desirous of preventing litigation against them and the resultant expenses thereof, to recover damages for their negligence, if any, and such receivers expressly deny that they were guilty of any negligence; and

'Whereas, the undersigned, Annie T. Lee Berry and Julius E. Berry, are willing to covenant not to sue the said railroad receivers or their employes for the injuries sustained, or that may hereafter develop, by reason of said accident, but desire to expressly reserve unto themselves their right of action against the Pullman Company and the agents and employes of said Pullman Company:

'Now, therefore, in consideration of the sum of one thousand dollars ($1,000.00), to us this day paid by James W. Lusk, W. C. Nixon, W. B. Biddle, receivers, St. Louis & San Francisco Railroad, we hereby covenant and agree not to sue or prosecute any suit, action at law or bill in chancery, against the said railroad receivers, or their employes, to recover damages for and on account of the accident and injury aforesaid, but in so doing distinctly and expressly reserve unto ourselves any and all rights of action we may have against the Pullman Company, to recover damages for said accident and injuries, this instrument not being executed in full settlement of our entire cause of action for the said accident and injuries, but being a mere quitclaim and covenant not to sue, so far as it may relate to any interest of the said receivers and railroad, but not applying in any sense to any cause of action we may have against the Pullman Company, or the employes of the Pullman Company.

'Before executing this instrument, the undersigned, having fully informed themselves of its contents, covenant and represent that they are the persons and bear the relations therein named, are of lawful age, and legally competent to execute it, have been advised by counsel to execute it voluntarily, with full knowledge thereof.

'Given under our hands, this the . . . day of March, 1915.

'(Signed) (Mrs.) A. L. Berry. 'J. E. Berry.

'Witness: W. H. Critz,

'Sara L. Buchanan.'

The two pleas were demurred to, and both demurrers overruled, and, the plaintiff declining to plead further, final judgment was entered dismissing the plaintiff's case, from which judgment this writ of error is prosecuted.

The question is, therefore, whether this paper, executed by Mrs. Berry and her husband, J. E. Berry, to the receivers of the railroad company, is a release of the Pullman Company. This question has been before the courts, and the decisions are not at all in accord. In 34 Cyc.p. 1086, the law is thus stated:

'A release under seal of one joint tort-feasor releases him and all his joint wrongdoers, because a sealed release operates to extinguish the cause of action. Moreover, it has been held that a reservation of the right of the injured party against the releasee's cotort-feasors is repugnant to the nature of the instrument and void, for the right of action cannot be extinct as to one tort-feasor and alive as to his fellow wrongdoers, and, having been destroyed as to one, it is extinguished for the benefit of all. The logical and legal soundness of this rule, however harsh its application may be in the particular case, is undoubted, provided the sealed instrument is once construed to be a release, but to escape the application of this principle, where it would work injustice and defeat the evident intention of the parties, the modern tendency of the courts is to construe, if possible, such instruments as covenants not to sue, which accordingly do not release the co-obligors. Moreover, the common law has been altered in some jurisdictions by statute.'

This question has been before the Supreme Court of Kentucky in Louisville & Evansville Mail Co. v. Barnes' Adm'r, 117 Ky. 860, 79 S.W. 261, 64 L.R.A. 574, 111 Am.St.Rep. 273. What was there held can probably be determined from the fourth headnote of the case, which is as follows:

'The acceptance by one, who has a cause of action against two joint tort-feasors, of a sum of money from one of them in part satisfaction and in consideration of a release of the tort-feasor making the payment, does not preclude recovery against the other.'

That case was very thoroughly considered, as shown by the opinion of the court. In the briefs of counsel, which precede the opinion of the court, will probably be found all the cases which were deemed pertinent, pro and con, up to the time that decision was made in 1904. A strong case on this subject is a decision of the Supreme Court of Tennessee in the case of Smith v. Dixie Park & Amusement Co., 128 Tenn. 112, 157 S.W. 900. The court, in the opinion there, by Mr. Justice Williams, says:

'A number of courts hold that a release which shows that it is not intended to evidence a settlement of the plaintiff's entire demand based on a tort, but reserves the right to pursue one or more of the joint wrongdoers for the balance, is not to be treated as a release of all, but as a covenant not to sue, with result of nonrelease of such other or others'

-- citing the cases, and then proceeds:

'The reasons advanced in support of these decisions are that...