Coral Drilling, Inc. v. Bishop

• Decision Date: 10 April 1972
• Docket Number: No. 46600,46600
• Parties: CORAL DRILLING, INC., et al. v. Charles L. BISHOP.
• Court: Mississippi Supreme Court

Page 463

260 So.2d 463

CORAL DRILLING, INC., et al. v. Charles L. BISHOP.

No. 46600.

Supreme Court of Mississippi.

April 10, 1972.

Rehearing Denied June 5, 1972.

Gibbes, Graves, Mullins & Bullock, Laurel, Marvin Oates, Bay Springs, for appellant.

Maxey, Clark & Casey, Laurel, Robert H. McFarland, Bay Springs, for appellee.

GILLESPIE, Chief Justice:

This is an appeal from the Chancery Court of the First Judicial District of Jones County, Mississippi. Charles L. Bishop sued Coral Drilling, Inc. (Coral), then a nonresident corporation, and its driver, Robert Reeves, for personal injuries sustained when complainant fell from a telephone pole. The fall resulted in Bishop being totally and permanently paralyzed from the waist down. The chancery court found that Bishop had sustained damages in the amount of $350,000, but gave credit for $90,000 theretofore paid by G. B. 'Boots' Smith, Inc. (Smith). Judgment was entered against Coral in the amount of $260,000. The suit was filed in chancery court as an attachment in chancery because of the nonresidence of Coral and the fact that certain resident defendants were indebted to Coral. The principal question involves the doctrine of election of remedies. We hold that complainant was bound by his former suit wherein he charged Smith as the negligent party and settled that suit for the sum of $90,000.

On March 31, 1969, Bishop was engaged in restoring telephone service to the residence of F. E. Blakeney on Highway 528, a short distance from Bay Springs, Mississippi. He had been employed only a few days by the Bay Springs Telephone Company when he was injured. He and Leo McDevitt, an experienced employee of the telephone company, went to the Blakeney residence to replace a telephone wire that had been struck by a Smith truck the day before. Smith had numerous trucks operating in the area hauling oil field equipment. When Bishop and McDevitt reached the Blakeney residence, Bishop climbed the telephone pole which was south of the highway across the road from the Blakeney residence. In order to restore telephone service it was necessary to replace the insulated wire across the road. After Bishop made the connection on the telephone pole south of the road, he descended the pole and rolled off enough wire on the ground and then climbed the pole on the north side of the road. He pulled the wire tight to a height of about seventeen feet, made the proper connections, and was preparing to descend the pole when he saw a truck approaching, which he stated he watched for about forty yards. His spurs were driven into the pole and he leaned back against his safety belt anticipating a possible collision. The load on the truck struck the wire which he had just installed, causing the pole to whiplash at the top and strike Bishop in the head. He fell to the ground and was injured.

Bishop first filed suit in the Circuit Court of the Second Judicial District of Jasper County, Mississippi, against Smith and Coral, but not as joint tort feasors. Coral was joined in that suit on the allegation that Smith was in the furtherance of the business of Coral on the theory of master and servant. The declaration alleged that Smith was moving a drilling rig on one of its trucks and the height of the load was in excess of eighteen feet above the road surface in violation of the statutes of the State of Mississippi regarding heights of laden motor vehicles, and that said laden truck struck the telephone wire that caused the pole on which Bishop was working to bend toward the center of the road and snap back resulting in plaintiff's fall and injury.

In connection with the suit in circuit court, Coral propounded certain interrogatories to Bishop, No. 32 of which asked the plaintiff to identify the color and type of the large truck and trailer owned by Smith. Bishop answered under oath it was 'A large red truck.' Bishop swore to these interrogatories on the fifteenth day of February, 1970, and on the twenty-sixth day of February, 1970, Bishop dismissed the suit without prejudice as to Coral. On March 5, 1970, a judgment was entered in the Circuit Court of the Second Judicial District of Jasper County, approving a settlement of the litigation of Bishop against Smith for $90,000, to be distributed to Bishop, his attorneys, and Fidelity and Guaranty Underwriters, Inc., the workmen's compensation carrier of Bishop's employer who had intervened in the suit. The judgment also authorized the parties to execute all acquittances and discharges to complete the purpose of settlement. Pursuant thereto Bishop executed a covenant not to sue Smith. Coral was not a party to the proceedings since it had been previously dismissed from the suit. The judgment recited that the defendant Smith denied liability but recognized the severity and permanent nature of the injuries of the...