Bogdahn v. Pascagoula St. Ry. & Power Co.
| Decision Date | 18 November 1918 |
| Docket Number | 20181 |
| Citation | 79 So. 844,118 Miss. 668 |
| Parties | BOGDAHN ET AL v. PASCAGOULA STREET RAILWAY & POWER COMPANY |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Jackson county, HON. J. H. NEVILLE Judge.
Suit by Charles Bogdahn and others against the Pascagoula Street Railway & Power Company. From a judgment for the named defendant, plaintiff appeals.
The facts are fully stated in the opinion of the court.
Judgment affirmed.
M. W Reilly and Denny & Heidelberg, for appellant.
Counsel next contend that there was a full and complete settlement between the telephone people and the appellant, which, as a matter of law released appellees.
Counsel cite a number of authorities upon that point. The question is settled in this state. See Bailey v. Delta Light Co., 38 So. 354; Nelson v. I. C., 53 So. 619, 98 Miss. 295; Illinois Central v. Clark, 85 Miss. 687, 38 So. 97; Saw Mill v. Bright, 77 So. 97; Bright v. Finkbine Lbr. Co., 77, So. 316.
The rule in this state is that joint tort-feasors may be sued jointly or severally, and nothing but full satisfaction will release one when the other is released. However, a party is entitled to but one settlement and when one or two or more joint tort-feasors pay a party in full for the damages which he has sustained, then such party can recover nothing more from the other tort-feasor or tort-feasors. In other words, where there is but one injury, there can be but one full satisfaction. This rule is so clearly laid down in this state that we will not attempt to discuss it. The rule in some other states is different from the rule here, but since our court has settled the question in this state, we will not discuss the rule in other states.
In the Baily case, in 38 Southern Rep., Judge TRULY points out the fact that other rules prevail in other states, but that in this state, nothing but full satisfaction will release joint tort-feasors.
We will not further discuss what the proof is in regard to the covenant not to sue, as we have hereinbefore done, and now content ourselves with requesting the court to carefully read the written agreement between the parties and the testimony of the attorney for the appellant who consummated the transaction with the telephone company.
We submit that there is a clear distinction between a covenant not to sue and a partial release. See 34 Cyc., page 1084-85, where the rule is clearly laid down that: "Effect of Convenant or Agreement not to Sue: A convenant or agreement not to sue one joint and several debtor does not release the other debtors, and is not pleadable in bar, because such an instrument neither extinguishes the obligation and therefore does not bar a suit to recover it, nor does it effect the right of subrogation, except pro tanto, for the consideration received, for a covenant by C not to sue A contains no promise that C will not proceed against B."
A number of said decisions are cited in said work which sustain the principle.
White & Ford, for appellees.
The next point relied upon by us is: That there was a full, complete settlement and satisfaction of the cause of action between the telephone company and appellants by which they received seventy-five hundred dollars, and this satisfaction, as a matter of law, released appellee from further liability in this cause, even if appellee were liable originally.
The doctrine that a settlement with one joint tort-feasor releases another is universally recognized. The declaration in this case stated a case of joint tort-feasance, and if the proof showed any liability on appellee, then it is proper to say that the evidence likewise established a case of joint tort-feasance between the telephone company and appellee.
On this question, see the following decision: Abb v. Railroad, 58 L. R. A. 293, and note thereunder: "A release for a consideration paid by one of two persons jointly liable for personal injury to another from further liability to respond for such injury, released the other also, although there is an express stipulation that it shall not have that effect." See also the following authorities on the same point:"
The test is whether there was joint negligence: Conway v. Traction Co., 97 A. (Pa). 1058, 23 A. S. R. 29. The release of one joint tort-feasor releases all. Ingram v. Carrollton, 152 P. (Ore). 256, 22 Am. Dig. R. 29. Where there is but one injury by joint tort-feasor, there can be but one satisfaction. Trading Co. v. Trading Co., 136 C. C. A. --, 9 Cir. 389. Where one of two joint tort-feasors is released, the release frees the other from liability: Wagner v. Railroad, 106 N.E. 809 Ill. 20 Am. Dig. Release, 29.
The release of one of several wrong-doers from liability, releases his co-defendants, although the release recites that it is not claimant's intention that it shall so operate.
Flynn v. Manson, 126 P. (Cal.), 181, 15 Am. Dig. R. 29;
Gore v. Henrotin, 165 Ill.App. 222, 15 Am. Dig. R., 29.
The release of one joint trespasser is the release of all, irrespective of the intention of the parties. Mich. case, 17 Dec. Dig. Release, 29.
In case of joint tort-feasance, satisfaction by any one liable, discharges the claim for damages as the injured person is legally entitled to but one satisfaction. Rogers v. Cox, 50 A. (N. J.), 143; 17 Dec. Dig. 29; Naph v. Roche, 94 N.Y. 329.
The instrument executed between appellants and the telephone company appears at pages 99 to 100, this record, and we invite the court's careful perusal of the document as well as the testimony of H. P. Heidelberg and M. W. Reilly, who undertook to explain what it meant.
The instrument provided: (1) That appellants would dismiss the suit they had already filed against the telephone company and appellee, as far as the telephone company was concerned. (2) That appellants would not enter any further suit against the telephone company. (3) That the instrument should not inure to the benefit of appellee. (4) And that it was not intended as a satisfaction or release of appellants' right of action against the appellee and agreement to dismiss the suit.
It will be noted that the instrument nowhere says that it shall not be construed as a release of or settlement with the telephone company, nor does it say that the seventy-five hundred dollars which the telephone company paid, should not release the telephone company from further liability.
In conclusion, we submit that the proof really shows that the telephone company had been released in toto, and this release operated as a matter of law to release appellee. If we are not correct in this, certainly it was a matter for the jury to decide, under the instructions of the court, and the jury was fully and fairly instructed on this theory at the instance of both parties.
Appellants as next of kin, entered suit against the Cumberland Telephone & Telegraph Company and the appellee Pascagoula Street Railway & Power Company as joint tort-feasors, for damages for the death of Herman Bogdahn, who was electrocuted by one of the electric wires belonging to the appellee Pascagoula Street Railway & Power Company. It...
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