Knoles v. Southwestern Bell Telephone Co.

• Decision Date: 23 June 1924
• Docket Number: No. 15042.,15042.
• Citation: 265 S.W. 1005
• Parties: KNOLES v. SOUTHWESTERN BELL TELEPHONE CO.
• Court: Missouri Court of Appeals

265 S.W. 1005

KNOLES v. SOUTHWESTERN BELL TELEPHONE CO.

No. 15042.

Kansas City Court of Appeals. Missouri.

June 23, 1924.

Rehearing Denied July 9, 1924.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Action by D. S. Knoles against the Southwestern Bell Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed.

Battle McCardle, of Kansas City, Geo. P. Longan, of Sedalia, and Earl H. Painter, Jos. W. Jamison, and Geo. B. Whissell, all of St. Louis, for appellant.

Montgomery & Rucker, of Sedalia, for respondent.

TRIMBLE, P. J.

While at work in the City of Sedalia, trimming trees to prevent the branches touching defendant's telephone lines, plaintiff came in contact with an electric wire belonging to the City Light & Traction Company and was badly shocked, burned, and caused to fall from a tree to the ground, being thereby severely injured. He brought suit against the light company for $15,000 damages, based upon its alleged negligence in failing to keep the wire properly insulated, but later settled with that company for $2,000, as will more particularly hereinafter appear. Thereafter he brought the present suit against the telephone company, seeking to recover the sum of $10,000 from it.

The defendant, among other defenses, set up the written stipulation made by plaintiff with the light company and the receipt by him of $2,000 thereunder, claiming that the same was in full settlement of plaintiff's entire cause of action, and was therefore a bar to any recovery herein.

The trial court refused to adopt this view, and submitted the case to the jury, overruling defendant's demurrers based, not only on the above contention, but also on the ground that, aside from this, plaintiff, on the merits, was not entitled to recover. The jury returned a verdict in plaintiff's favor for $2,500, on which judgment was rendered, and from this defendant has appealed. Judge Bland, to whom the case was originally assigned, is of the opinion that the plaintiff's settlement with the light company is a bar to any recovery herein, but neither of his associates is able to concur in such view.

It is conceded that plaintiff executed the stipulation with the light company and received from it the $2,000 specified therein; but there is no evidence that as a matter of fact the same was understood or intended as a release of all claims and demands arising out of plaintiff's injury, i. e., a full satisfaction and discharge of plaintiff's cause of action. The contention is that the release given to the light company bars recovery against the telephone Company as a matter of law.

The stipulation and agreement made with the light company is as follows:

                "In the Circuit Court of Pettis County, Missouri
                        February Term, 1923
                "D. S. Knoles, Plaintiff, v. City Light & Traction
                                  Co., Defendant
                

"Whereas on the 22d day of July, 1922, D. S. Knoles, the above-named plaintiff, while engaged in trimming limbs from a tree near the intersection of an alley with Grand avenue between Fourth and Fifth streets in the city of Sedalia, Mo., was severely shocked, burned, and injured by reason of coming in contact with a high-tensioned electric wire belonging to the above-named defendant, and, whereas, the said Knoles instituted an action at law at the October term, 1922, of the circuit court of Pettis county, Mo., wherein he sought to recover damages on account of said injury, and, whereas, said City Light & Traction Company, the above-named defendant, filed an answer denying any and all liability by reason of said injury to the said Knoles, and, whereas, the said Knoles is demanding the sum of $15,000 by way of damages, and the said City Light & Traction Company denies that it is liable for any damage: Now, in order to compromise, adjust, and forever settle the claim of the said Knoles on account of said injury it is hereby stipulated and agreed by and between the parties that the City Light & Traction Company will pay to the said Knoles, receipt of the payment being hereby acknowledged, the sum of $2,000 in full of all claims of every kind and character against the said defendant, and the said Knoles accepts the $2,000 in full of all his claims and demands."

Section 4223, R. S. 1919, contains the following provision, added thereto by Act approved March 23, 1915 (Laws 1915, p. 268), to wit:

"It shall be lawful for all persons having a claim or cause of action against two or more joint tort-feasors or wrongdoers to compound, settle with, and discharge any and every one or more of said joint tort-feasors or wrongdoers for such sum as such person or persons may see fit, and to release him or them from all further liability to such person or persons for such tort or wrong, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from, the other joint tort-feasors or wrongdoers against whom such person or persons has such claim or cause of action, and not so released."

Prior to the above enactment, the release of one joint tort-feasor released the others as a matter of law, regardless of the intention of the parties to the release. Dulaney v. Buffum, 173 Mo. 1, 16, 73 S. W. 125. But the above-quoted amendment to the statute has changed this except where the settlement and release is in full of all claims arising out of the injury; it, in such case, being a settlement in full of the cause of action. Of course, if a cause of action be satisfied and released, it is dead, and cannot be revived and used against another wrongdoer, for it has become extinct; and that situation is not helped in the least by the above-mentioned amendment.

But the release here in question seems to me to be vitally different from that in the case of Abbott v. City of Senath (Mo. Sup.) 243 S. W. 641. In that case Abbott settled with the owner of the awning which fell upon him, and gave to said owner a release or receipt in full for all damages arising out of his injury, i. e., arising out of his cause of action. Even on the idea that it was a settlement merely of Abbott's claim against said awning owner, still, as said in the opinion, there was nothing in the language of the release "to indicate, even by implication, that Abbott was claiming or demanding anything less than the full amount for which it was liable to him." (Italics mine.) In other words, there was nothing whatever to show, or to even imply, that the release given was for anything less than in full for everything he had suffered or was claiming as a result of the injury, especially as the awning owner, if liable at all, was liable for the full damage even though the city might also be liable. Moreover, the receipt explicitly stated that Abbott accepted the $500 "in full of all demands from * * * injury [received] by the falling of awning," etc. (Italics mine.)

As he was being paid in full for all demands arising from the injury this would include demands against everyone through whose negligence that injury was caused, and the release would therefore be in settlement of his cause of action against all. This, I think, is what is meant in the Abbott Case when it is said (loc. cit. 643):

"The recital in general terms that the money was received in full of all demands for his injury, without any limitations or reservations whatever, clearly indicates that Abbott considered that he had effected a complete settlement, and that he was thereby acknowledging, and intending to acknowledge, satisfaction in full of his cause of action." (Italics mine.)

His "cause of action" would include claims against everybody whose negligence had caused his injury, especially as no suit had been brought at that time against any one in particular, and hence releasing his cause of action could not be understood to mean merely his claim against any particular wrongdoer. Consequently, and in view of all the above-mentioned matters, the Supreme Court held that there was no room whatever for any construction or interpretation of the receipt to mean that Abbott was merely accepting $500 in full of his demands against the awning owner only.

But the release in the case at bar is not thus tightly closed and hermetically sealed; on the contrary, it expressed an entirely different thought. The receipt or release involved herein shows on its face that plaintiff was claiming and demanding $15,000 damages, but the traction company was insisting that it was not liable for any damages, and a suit was pending as to this issue, wherefore plaintiff agreed, in compromise of that claim, to accept the sum of $2,000, not, as stated in the Abbott release, in full of all demands arising from his injury, but "in full of all claims of every kind and character against the said defendant."

It is true the release theretofore recited that it was made to forever settle the claim, and thereafter said the $2,000 was accepted in full of all his claims and demands, but manifestly this refers to the "claims of every kind and character against the said defendant," the only claims the receipt had said it was in full settlement of, and the only claims it was dealing with.

To say, as a matter of law that, because of such a release as the one in the case at bar, the plaintiff is not entitled to recover damages from any other tort-feasor whose negligence also caused the injury is, to my mind, a refusal to allow any force or effect to the statute (section 4223, R. S. 1919), as it now stands.

Proceeding, therefore, to the merits of the case, the petition set up that on July 22, 1922, plaintiff was directed by defendant to trim branches from trees adjacent to defendant's telephone wires in the city of Sedalia; that defendant's said wires were strung above the streets and alleys of Sedalia in close proximity to and parallel with wires of the light company which carried heavy charges of electricity and were highly dangerous to persons coming in contact...