Clark v. Union Electric Light & Power Company

• Decision Date: 05 July 1919
• Citation: 213 S.W. 851,279 Mo. 69
• Parties: CELIA CLARK, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY
• Court: Missouri Supreme Court

213 S.W. 851

279 Mo. 69

CELIA CLARK, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY

Supreme Court of Missouri, Second Division

July 5, 1919

Appeal from St. Louis City Circuit Court. -- Hon. William A. Kinsey Judge.

Affirmed.

Lashly & Barnett and George E. Egger for appellant.

(1) The stipulation whereby plaintiff released her claim so far as the telephone company was concerned did not constitute such a technical release as would discharge the defendant, a joint tortfeasor, and should have been construed as a covenant not to sue. Ridenour v. International Harvester Co., 205 S.W. 883; McDonald v. Goddard Grocery Co., 184 Mo.App. 432; Arnett v. Railroad Co., 64 Mo.App. 368; Lumber Co. v. Dallas, 165 Mo.App. 49; Dennison v. Aldridge, 114 Mo.App. 700; Laughlin v. Powder Co., 153 Mo.App. 508. (2) The stipulation should have been construed to be a covenant not to sue, and not a technical release such as would discharge a joint tortfeasor. The stipulation contained an express reservation of the right to sue the other joint tortfeasor, the defendant herein. In the case of such reservation, notwithstanding the fact that the instrument uses the word "release" the instrument is not a release, but is a convenant not to sue the person released. Gilbert v. Finch, 173 N.Y. 455; Feighley v. Milling Co., 100 Kan. 430; Eden v Fletcher, 79 Kan. 139; Nickerson v. Surplee, 174 N.Y. 139; Berry v. Pullman Co., 249 F. 816; Kropidlowski v. Pfister & Vogel Leather Co., 149 Wis. 421; Atchison, T. & S. Ry. Co. v. Classin, 134 S.W. 358; J. Rosenbaum Grain Co. v. Mitchell, 142 S.W. 121; El Paso & S.W. Ry. Co. v. Darr, 93 S.W 169; Bloss v. Plymale, 3 W.Va. 393; Matthews v. Chicopee Mfg. Co., 3 Rob. (N.Y.) 711; Carey v. Bilby, 129 F. 203; 34 Cyc. 1085-1087. (3) It is quite apparent that it was the intention of the parties that the said stipulation should constitute a covenant not to sue and not a release. The instrument was entitled "covenant not to sue." In the body of the instrument is found language to the effect that the plaintiff elected to take under a certain benefit insurance plan in lieu of prosecuting her action for damages against the telephone company and further the instrument contains an express reservation of the right to sue this defendant. This certainly is sufficient to establish the intention of the parties not to sue and the instrument as not a release.

Jourdan, Rassieur & Pierce for respondent.

The writing, though called a "covenant not to sue," was a release of a joint tortfeasor, and therefore the release of this defendant. Dulaney v. Buffum, 173 Mo. 1; Hubbard v. Railroad, 173 Mo. 249; Chicago Herald Co. v. Bryan, 195 Mo. 587; McBride v. Scott, 132 Mich. 176.

OPINION

WILLIAMS, P. J.

Plaintiff sues for damages in the sum of $ 10,000 for the death of her husband, Theodore C. Clark, which was alleged to have been caused by the negligence of the plaintiff on the 7th day of November, 1914.

At the close of plaintiff's evidence at the trial in the Circuit Court of the City of St. Louis, plaintiff took an involuntary nonsuit, with leave to move to set same aside. The court overruled the motion to set aside the nonsuit and plaintiff duly perfected an appeal to this court. The facts are sufficiently summarized in the following quotations which we take from the respective statements.

From appellant's statement we quote as follows:

"Deceased was in the employ of the Southwestern Telegraph and Telephone Company (hereinafter called the Telephone Company) as 'trouble man,' his duties consisting of locating and remedying wire trouble on the lines of his employer. On this date the defendant, Union Electric Light & Power Company (hereinafter called the Light Company), the Telephone Company and the City of St. Louis were maintaining their respective wires upon poles belonging to the Telephone Company, there being a joint user of said poles on what was known as the Manchester Line, of the Telephone Company. The Light Company maintained wires upon two cross-arms above the cross-arms and wires of the Light Company. There was a lead cable running from the ground to a cable box in the midst of the wires, which cable ran alongside of and perpendicular with the pole.

"On the date mentioned deceased was ordered by the trouble tester of the Telephone Company to go out on the Manchester Line and locate and correct what appeared to be a 'ground' on one of the wires of the Telephone Company. A test at the station with instruments used for that purpose showed that the wire was not crossed with the wires of the Light Company or with any other, but that the line was simply grounded. Deceased went out on the line and was upon the pole located at Taylor and Manchester Avenues of the Manchester Line of the Telephone Company when he was seen to fall from amongst the wires to the ground, a distance of from 30 to 36 feet. He was dead when eye-witnesses reached him. He had an electric burn in the palm of his left hand and his neck was broken. He was wearing canvas gloves at the time. It was necessary for deceased to climb through the wires of the Light Company to get to the wires of the Telephone Company, the space between the Light Company's wires being from 32 to 34 inches. The Light Company was maintaining at the time certain wires on both of their cross-arms, which were carrying a heavy current, ranging from 2200 to 4400 volts, sufficiently heavy to be dangerous to human life, and other wires of the Light Company on that pole were neutral, carrying no current at all. The wires of the city and of the Telephone Company were all low-voltage and not carrying a heavy or dangerous current. The insulation on the high-tension wires of the defendant was off the wires near the pole and there were marks on the bare space of one of them, showing that a foreign body had come in contact with it at that point and that the current of electricity had been diverted from the wire into the foreign body. This mark was not upon the wire a short time before, but was there a short time after Clark was killed."

One of plaintiff's witnesses testified as follows: That the Telephone Company had a rule whereby the men were supposed to wear rubber gloves where they were handling wires which are in contact with or in close proximity with high-tension wires, but that it was not the custom of the Telephone employees to observe that rule universally, but that if they were working on high-tension wires they would observe the rule. In working with the telephone wires they would not generally use rubber gloves; that when a wire gets crossed with an electric light wire it has the same voltage as the electric light wire, and then the precaution is taken to protect the person from shock.

The following quotations are taken from respondent's statement:

"At that time the Telephone Company had provided, among other benefits, a death benefit plan for compensation to the widow or dependents of employees killed while in the service of the company. The original fund for the creation of this plan was furnished by the Telephone Company and it obligated itself to make up any deficiency in the fund at the end of the year, providing that such deficiency did not exceed more than a certain percentage of the total wages paid to its em-employees during the previous year. The employees contributed no money, and made no payments to this fund, nor did they pay any premiums or assessments. One of the provisions of the plan was, that in case of accident resulting in the death of an employee, which entitled his beneficiary or beneficiaries to benefits under the regulations, he or they might elect to accept such benefits or to prosecute such claims at law as he or they might have against the company, but that if an election was made to accept the benefits, such election was required to be in writing; and it was further provided that the company be released from all claims and demands which the beneficiaries might have against the Telephone Company, otherwise than under the regulations, on account of such accident. Under the plan, these benefits were to be paid irrespective of the question of liability, but an election had to be made.

"A demand was made on the...