Foster v. City of Meridian

• Citation: 116 So. 820,150 Miss. 715
• Decision Date: 16 April 1928
• Docket Number: 27094
• Court: United States State Supreme Court of Mississippi
• Parties: FOSTER v. CITY OF MERIDIAN. [*]

116 So. 820

150 Miss. 715

FOSTER v. CITY OF MERIDIAN. ^[*]

No. 27094

Supreme Court of Mississippi

April 16, 1928

(Division B.)

1. ACCORD AND SATISFACTION. To constitute bar to action on original claim, accord must be fully executed unless agreement, instead of performance thereof, is accepted as satisfaction.

To constitute a bar to an action on original claim or demand accord must be fully executed unless agreement or promise instead of performance thereof, is accepted as satisfaction.

2. ACCORD AND SATISFACTION. Evidence held to show that accord between city and plaintiff relating to personal injuries contemplated satisfaction thereafter before accord should be binding.

In action for damages for injuries sustained by plaintiff in collision between automobile in which she was riding and city's cinder wagon, evidence held to show that there was an accord between plaintiff and city and that accord contemplated satisfaction second day thereafter before accord should be binding, but did not show substitution of new obligation in place of old.

3. PLEADING. Under statute of jeofails, plaintiff, having failed to challenge sufficiency of pleas setting up accord and satisfaction as defense, could claim defendant failed to prove accord and satisfaction (Hemingway's Code 1927 section 610).

Plaintiff in action against city for personal injuries sustained in collision between automobile and cinder wagon, failing to challenge sufficiency of defendant's plea setting up accord and satisfaction as defense, could claim that defendant failed to prove an accord and satisfaction, since statute of jeofails (Hemingway's Code 1927, section 610, Code 1906, section 808) cures false pleading but not lack of evidence to establish true pleading.

4. APPEAL AND ERROR. Where witness' testimony regarding accord and satisfaction proved no defense under law, general objection was sufficient to raise question on appeal.

In action against city for personal injuries, where witness' testimony regarding accord and satisfaction which defendant set up in special plea proved no defense under law, general objection to testimony was sufficient to permit raising question on appeal.

5. APPEAL AND ERROR. In action against city for personal injuries, refusing instruction to disregard alleged compromise settlement as defense held harmful error.

In action against city for personal injuries sustained when automobile in which plaintiff was riding collided with cinder wagon, refusing instruction to effect that jury should disregard alleged compromise settlement as defense to cause where evidence showed merely an accord without satisfaction, held harmful error.

6. TRIAL. Giving instructions submitting alleged compromise settlement to jury where evidence showed merely accord without satisfaction held error.

In action for personal injuries sustained when automobile in which plaintiff was riding collided with city's cinder wagon, giving of instruction submitting to jury for their consideration alleged compromise settlement where evidence showed merely an accord without satisfaction, held error.

7. TRIAL. Plaintiff's requesting instructions on alleged compromise settlement after court refused instruction to disregard compromise settlement, held not condonement of court's action in giving instructions for defendant on subject.

Plaintiff's requesting and receiving instructions in which she submitted question of compromise settlement to jury after court had refused her instruction to disregard alleged compromise settlement, held not condonement of action of court in giving instructions for defendant submitting question of compromise settlement to jury, and she did not lose her rights by so doing.

Division B

Suggestion of Error Overruled May 21, 1928

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE, Judge.

Action by Mrs. H. L. Foster against the city of Meridian. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Reily & Parker, for appellant.

In Newberry Brick & Clay Co. v. Chojnicki, 33 Ohio C. C. R. 356, the evidence of an oral agreement of settlement for personal injuries received is properly excluded in an action for damages for such injuries. It is not sufficient for one to become careful after a collision is unavoidable if they have been negligent prior to that time. McGee v. West, 57 S.W. 928; International & G. N. R. Co. v. Ploeger, 93 S.W. 226; 29 Cyc. 623.

It is our contention that the term "accident" does not exclude negligence but does include by the common acceptation of this term all incidents which are not intentional. Graver v. A. G. S. R. R. Co. (Ala.), 96 So. 916; McCarty v. N.Y. & E. R. Co., 30 Pa. 247; Payne v. Fraternal Acc. Asso. of America, 93 N.W. 361; Nove v. Flack, 46 Am. Rep. 205.

There is a legal principal recognized in law known as settlement and compromises, wherein it is recognized that the agreement reached differing from the original obligation may be substituted for the original obligation, before being executed and the law writers have some difficulty in stating the specific difference between compromise and settlement, and accord and satisfaction. In some cases the difference is very manifest, while in other cases the terms are used interchangeably, and it would be needless for us to undertake to point out what are the essential elements constituting these different legal principles, and it is sufficient to say that the case at bar is governed by the law of accord and satisfaction which requires the accord to be satisfied or executed before it becomes binding or effective. It might be said however that in both cases of compromise and settlement and accord and satisfaction that the original obligation may be discharged when a new promise is made, with the distinct understanding that the new promise and not the execution of such promise is received in satisfaction and settlement and discharge of the original obligation, and the difference between these two legal principles may be usually found in the facts which show more conclusively and easily that the promise of settlement has been accepted in satisfaction, as distinguished from the execution of such promise in satisfaction of the original obligation, but the authorities are sufficiently uniform and clear as to what the law is as applied to the case at bar, that we need not be troubled concerning the law in a different case. We call the court's attention to some of the authorities supporting this view, with the statement that we have found none to the contrary on a similar state of facts. Carter v. Chicago, etc., R. R. Co., 119 S.W. 35; Silvers v. Grossman, 192 P. 534; 1 C. J. 530; Brunswick & W. R. Co. v. Clemm, 7 S.E. 86; Schwartzfager v. Pittsburg, etc., R. Co., Ann. Cases, 1914C, 149; Reed v. Martin, 29 Pa. St. 179; Hern v. Kiehl, 80 Am. Dec. 472; St. L. S. R. Co. v. Mitchell, Ann. Cases, 1916E, 217; Whitney v. Cook, 53 Miss. 551; Y. & M. V. R. R. Co. v. Fulton, 71 Miss. 385, 14 So. 271; Johnson v. State, 80 Miss. 798, 29 So. 515; Abney v. State, 123 Miss. 546, 86 So. 341. In the case at bar these parties had made a settlement that would defeat the pending lawsuit or would not defeat the pending lawsuit and if they had made an agreement that would defeat the pending lawsuit the jury had nothing to do with it, whether the plaintiff was ever about to collect her three hundred dollars or not, and we think that it was highly improper to have instructed the jury in this regard, as was done in this case.

Amis, Dunn & Snow, for appellee.

It will be noted, that the first special plea alleged that the defendant offered to pay to the plaintiff, the sum of three hundred dollars in compromise and settlement of her claim for damages and that she accepted the offer so made, and that the money was to be paid and a receipt given therefor, on the second day after she had accepted such offer; while the second special plea alleged that the defendant, on the one hand, and the plaintiff and her husband on the other hand, entered into an agreement of compromise and settlement, by the terms of which the defendant agreed to pay to the plaintiff the sum of three hundred dollars, in settlement of the claim of herself and her husband against the defendant, and that the money was to be paid and a receipt given therefor on the second day after the agreement was entered into; and our contention is that such agreement of compromise and settlement was a contract, which was valid and binding upon all parties, and that any right of action that the plaintiff might thereafter have against the defendant, was on the contract of compromise and settlement and not upon the original tort. 5 R. C. L. 895-896; Parker v. Enslow, 40 Am. Rep. 588; Rinehart v. Bills, 52 Am. Rep. 385; Heath v. Potlach Lumber Company, 108 P. 343; Phillips v. Pullen, 14 A. 222; Finley B. Heirn v. Nicholas Carron, 11 S. & M. 361; Kohler v. Oliver, 114 Miss. 46, 74 So. 777; King v. Kellogg, 114 Miss. 375, 75 So. 134; Leon Micheal Co. v. O'Connell Meyers Co., 115 Miss. 720; Pierce v. Garrett (Miss. 1926), 107 So. 885.

Since the plaintiff voluntarily took issue on the pleas she cannot after that issue has been determined adversely to her on the facts, without any motion to exclude the testimony in support thereof, be heard to complain on appeal to this court because of any supposed error of the court either in sustaining the pleas or in admitting testimony in support thereof. Because by the Statute of Jeofails, sec. 610, Hemingway's Code of 1927, it is provided that a "judgment shall not be stayed or reversed after verdict . . . for any mispleading insufficient pleading, discontinuance, misjoining of issue, failure to join issue, or lack of warrant of...