General Motors Acceptance Corporation v. New Orleans & G. N. R. R. Co.

• Decision Date: 13 January 1930
• Docket Number: 28110
• Citation: 156 Miss. 122,125 So. 541
• Parties: GENERAL MOTORS ACCEPTANCE CORPORATION v. NEW ORLEANS & G. N. R. R. CO. et al
• Court: Mississippi Supreme Court

125 So. 541

156 Miss. 122

GENERAL MOTORS ACCEPTANCE CORPORATION v. NEW ORLEANS & G. N. R. R. CO. et al

No. 28110

Supreme Court of Mississippi

January 13, 1930

Division A

1. RELEASE, Widow's release of railroad from liability for death of husband and property damage did not bar action by lien creditor to recover balance of purchase price of automobile destroyed (Hemingway's Code 1927, sections 515, 1450, 1764, 1834).

Release executed by widow, relieving railroad from liability by reason of death of husband and property damages in connection therewith, was not a bar to subsequent action by lien creditor to recover as damages the balance due on purchase price of automobile claimed to have been negligently destroyed by railroad, in view of right of lien creditor to administration, under Hemingway's Code 1927, section 1764, Code 1906, section 2024, and subsequent right under Hemingway's Code 1927, section 1834, Code 1906, section 2091, to prosecute any personal action which intestate might have prosecuted under Hemingway's Code 1927, section 1450, Code 1906, section 1651, regardless of right of widow to recover damages in accordance with Hemingway's Code 1927, section 515, Code 1906, section 721, as amended by Laws 1922, chapter 229, and right to entire estate under Hemingway's Code 1927, section 1450, Code 1906, section 1651.

2. EXECUTORS AND ADMINISTRATORS. Damages to personal property of decedent resulting from tortious act during lifetime are recoverable only in suit by administrator (Hemingway's Code 1927, sections 1450, 1834).

Under Hemingway's Code 1927, section 1834, Code 1906, section 2091, authorizing administrator to prosecute any personal action which intestate might have prosecuted, and Hemingway's Code 1927, section 1450, Code 1906, section 1651, to effect that widow and children of testator are entitled to estate only after payment of debts, a suit for damages to personal property of decedent resulting from tortious act done during his lifetime can only be maintained by administrator when there are debts owing by decedent.

HON. S C. BROOME, Special Judge.

APPEAL from circuit court of Hinds county, First district HON. S. C BROOME, Special Judge.

Suit by the General Motors Acceptance Corporation against the New Orleans & Great Northern Railroad Company and another. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Powell, Harper & Jiggitts, of Jackson, and J. F. Guynes, of Hazelhurst, for appellant.

When debts are owing by a person at the time of his death the title to the personal property passes to the administrator for the purposes of the payment of the debts and for the collection of debts owing to the decedent and the widow of the decedent has no authority to settle the claim for damages to such property, arising before the death of her husband.

Andrews v. Brumfield, 32 Miss. 107, at 113; Maxwell, Admr., v. Craft, 42 Miss. 307; Ricks v. Hillard, Admr., 45 Miss. 459; Sec. 1450, Hemingway's Code 1927.

Two causes of action arise, when there is both property damage and death from personal injury arising out of the same accident, where no settlement is made until after the death of the owner of the property.

Lloyd's Ins. Co. v. Vicksburg Traction Co., 106 Miss. 244, 83 So. 445.

Green, Green & Potter, of Jackson, for appellee.

Where a person sustained injuries both to himself and his property by the same tortious act, it gave rise to but a single cause of action.

Home Ins. Co. v. Tate Mercantile Co., 117 Miss. 760, 78 So. 711; Kimball v. L. & N. R. R. Co., 94 Miss. 396, 48 So. 230; Farmer v. Union Ins. Co., 111 So. 585; Lloyd's Ins. Co. v. Vicksburg Traction Co., 106 Miss. 244, 63 So. 455.

Either the bailor or the bailee of personal property may maintain trover for its conversion, or an action for damages when it has been injured, and a full recovery by one defeats an action by the other.

2 Kent's Com. 585; Story on Bail., sec. 94; Schouler on Bail, 65; Parkhurst v. Jacobs, 17 Mich. 30; Pratt v. Harlow, 16 Gray, 37; 2 Hilt 536; 30 Mo. 423; 8 Pick. 333; Jones on Chat. Mort., secs. 237-247; 11 Shep. 403; 3 Cush. 399; Hill on Torts, 594; Loeb v. Chicago R. R. Co., 60 Miss. 939; I. C. R. R. Co. v. Hawkins, 65 Miss. 203.

The above rule applies alike to personal property held under a conditional sales contract as to that held under a chattel mortgage.

35 Cyc. 67; Burnley v. Tufts, 66 Miss. 51; Dedrick v. Wolfe, 68 Miss. 500; Tufts v. Stone, 70 Miss. 57; Foundry Co. v. Pascagoula Ice Co., 72 Miss. 615; Hunter v. Crook, 93 Miss. 815; Rodgers v. Whitehead, 127 Miss. 31, 89 So. 780; United States Motor Truck Co. v. Southern Securities Co., 95 So. 639, 131 Miss. 664; Bankston v. Hill, 98 So. 689, 134 Miss. 288.

Where property damage and death of owner of the property arise out of same accident, widow of decedent may settle all claims.

Sec. 515, Hemingway's Code 1927; Richardson v. Neblett, 122 Miss. 723, 10 A.L.R. 275, 84 So. 695.

Argued orally by A. Y. Harper, for appellant, and by Garner W. Green, for appellee.

OPINION

Cook, J.

The appellant, General Motors Acceptance Corporation, instituted this suit in the circuit court of the First district of Hinds county, against the appellees, New Orleans Great Northern Railroad Company and the Treat Southern Lumber Company, seeking to recover from them as damages the balance due it on the purchase price of a Chevrolet automobile previously sold to one N. H. Hemby, and alleged to have been negligently destroyed by the appellees. The appellees filed a plea of the general issue, and a special plea setting up an alleged release of said railroad company from all liability for the destruction of said automobile. The appellant demurred to this special plea, and upon its demurrer being overruled, it declined to plead further, and thereupon a final judgment dismissing the suit was entered; and from this judgment this appeal is prosecuted.

The declaration alleged that the Auto Service Company sold to one N. H. Hemby a Chevrolet touring car for two hundred fifty-two dollars cash, and five hundred four dollars payable in twelve monthly installments of forty-two dollars each, and that at the time of the sale a conditional sales contract was executed by and between the said Auto Service Company and the purchaser, Hemby, wherein the said Hemby agreed to pay the said amount of five hundred four dollars in monthly installments, and the title to the automobile was retained in the seller until the full payment of the said balance of the purchase price.

It was further alleged that the sales contract was, for a valuable consideration, transferred to the appellant, and that the said automobile was afterwards destroyed, and the said N. H. Hemby was killed, as a result of the joint negligence of the appellees; the detailed charges of negligence being set forth in the declaration.

It was further alleged that under the said conditional sales contract, which was made an exhibit to the declaration, the appellant had a lien on said automobile for the balance due thereon with an attorney's fee of seventy-five dollars as collection fees, and that having negligently destroyed the automobile which was the sole security for said indebtedness, the appellees had damaged the appellant to the extent of said indebtedness and were liable to it therefor.

The special plea filed by the appellees averred that at the time of the destruction of the automobile, the said N. H. Hemby was the owner thereof, subject only to a lien for the unpaid purchase price by reason of the sales contract executed by him; that the said Hemby had made no default in the payments due and owing and was then in possession of the automobile with the right to use and enjoy the same; that the said automobile was destroyed along with the use and possession thereof; and that the said railroad company settled with Ida Hemby for one thousand dollars and took from her a release under and by virtue of which the said railroad company was acquitted and discharged of all liability for damages to both person and property in consequence of the said accident. A copy of the alleged release was filed as an exhibit to the plea, and is in the following words and figures, to-wit:

"New Orleans Great Northern Railroad Company,

"Receipt and Acquittance.

"Hopewell Miss., August 13, 1927.

"Received of New Orleans Great Northern Railroad Company, the sum of one thousand dollars in full settlement and satisfaction of all claims and demand of every kind and character whatsoever accrued or hereafter to accrue to me on account of fatal injury to my husband, Needham Hemby, on July 25, 1927. Needham was driving a Chevrolet touring car, and while endeavoring to cross the railroad track, at crossing North of Georgetown depot, was struck by N. O. G. N. train No. 170 and received personal injuries, which resulted in his death at the Baptist Hospital, Jackson, Miss., a few days later.

"Needham was never married before, and as there were no children born to our union, I am his sole heir.

"And, for said consideration, I, for myself, my heirs, legal representatives and assigns, do hereby release, acquit, and forever discharge the New Orleans Great Northern Railroad Company, its successors and assigns, of and from all claims, demands, damages, judgments, causes of action, at law or in equity, and from any matter or thing whatsoever accrued or hereafter to accrue, including damage on account of personal injuries and all other damages to my person or property in consequence to the above-described occurrence.

"And for said consideration and for the parties herein mentioned it is agreed that no suits of any kind or character shall be instituted for a recovery of...