Louisville & E. Mail Co. v. Barnes' Adm'r

• Decision Date: 16 March 1904
• Parties: LOUISVILLE & EVANSVILLE MAIL CO. v. BARNES' ADM'R.
• Court: Kentucky Court of Appeals

79 S.W. 261

117 Ky. 86

LOUISVILLE & EVANSVILLE MAIL CO. v. BARNES' ADM'R.

Court of Appeals of Kentucky.

March 16, 1904

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by John T. Barnes, as administrator of the estate of Clara R Barnes, deceased, against the Louisville & Evansville Mail Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Powers & Anderson, for appellant.

Geo. W Jolly and W. T. Owens, for appellee.

NUNN J.

This appeal is from a judgment of the Daviess circuit court rendered at its October term, 1902, against the appellant Louisville & Evansville Mail Company, and in favor of John T. Barnes, administrator of Clara R. Barnes, deceased. The judgment was for $2,000.

The facts of the case, as they appear of record, are, in substance, as follows: About 11:30 o'clock on the night of the 12th of July, 1901, Clara R. Barnes lost her life by drowning in the Ohio river at Owensboro, Ky. The young lady, together with about 400 other persons, embarked early in the night on an excursion boat of the Marsden Company called the "Fawn," with two barges attached, for a pleasure trip up the Ohio river to Rockport, Ind., and return. On the return, and for the purpose of disembarking its passengers, this steamer landed at Owensboro, Ky. at the upper end of appellant's wharfboat, the barges lying "head on" at the forward end of the wharfboat. The proof of appellee showed that the barges were properly and securely fastened to the wharfboat with a rope attaching the Fawn to the bank or shore to keep her from swinging out into the stream. In this situation there was no space between the barges and the wharfboat. The passengers left the barges by stepping down 15 or 16 inches onto the front of the wharfboat. About 50 of the passengers had disembarked, when the deceased, Clara Barnes, in attempting to make this step from the barge to the wharfboat, fell between them, and was drowned. According to appellee's proof, this separation was caused by one of the boats of appellant coming in to the wharfboat "head on," striking the wharfboat at the upper end, thereby forcing the separation at the place and the time she made her step; that this was an improper and negligent landing of the appellant's boat; that those in charge of it saw the situation of the boat and barges of the Marsden Company and the disembarkation of its passengers. On the other hand, appellant claims that it did not make its landing in that manner; that it made a proper, easy, and safe landing, and did not cause the separation of the barges and the wharfboat; that the separation was produced from some other cause; that in fact the deceased fell between the two and lost her life before appellant's boat made its landing, or even touched the wharfboat; that the deceased lost her life by reason of the negligence of the Marsden Company in making an improper landing at the wharfboat, by failure of the Marsden Company to use a stage plank for the use of the passengers to pass from the barge to the boat, or by the contributory negligence of the deceased herself in not using ordinary care for her own safety. Appellee sued both companies, charging joint and concurring negligence, but just before the trial dismissed, without prejudice, his petition against the Marsden Company, and proceeded with the trial against the appellant.

The appellant complains that the court erred in overruling its motion for a peremptory injunction to the jury at the conclusion of the evidence. In this the appellant is mistaken. There was proof introduced by many witnesses that the landing made by the appellant with its boat was a very unusual, unsafe, and dangerous one, and that the force with which it struck the upper end of the wharfboat forced the separation of the boat and barge just at the moment the deceased was making her step from the one to the other, and caused her death.

The appellant complains that the court failed to give a proper instruction on the question of contributory negligence on the part of the deceased. There is not anything in the record showing the slightest neglect or want of care on the part of the deceased by which she lost her life, and, if the court had failed to give any instruction on this point, it would not have been prejudicial to appellant, as there was no evidence upon which to base it. Appellant also complains of the following words in the first instruction: "And if they shall further believe that said drowning was caused by the negligence in whole or in part of the defendant Louisville & Evansville Mail Company's officers or servants," etc. In the case of Louisville & Cincinnati Packet Co. v. Mulligan (Ky.) 77 S.W. 704, the court, in discussing an instruction with similar words embodied in it, said: "Appellee, being a passenger on the White Dove, and having no control over the boat, may recover of the Cincinnati, although those in charge of the White Dove were more negligent than those in charge of the Cincinnati; for the negligence of a carrier is not imputed to a passenger who is injured by the concurrent negligence of the carrier and another, and he may recover against both. Danville, etc., Co. v. Stewart, 59 Ky. 119; Louisville, etc., R. R. Co. v. Case's Adm'r, 72 Ky. 728; 7 Am. & Eng. Enc. of Law, 446, and cases cited. *** The court, by its instructions, told the jury that both boats were governed by the same rules and regulations. *** Also that appellant was not liable to appellee unless the plaintiff was injured by reason of the negligence in whole or in part of the officers in charge of the Cincinnati." The court in that case approved this instruction.

The most serious question involved in this case grows out of an issue made by an amended answer which was filed during the trial in the lower court, in which it was, in substance alleged that the appellee had, in consideration of $1,000 paid to him by the Marsden Company, dismissed his action against the Marsden Company, this appellant's joint tort feasor, and had accepted the $1,000 in satisfaction of his cause of action; that he had no further right to prosecute his action against this appellant. This was traversed by the appellee, and the proof introduced upon this question showed the following state of facts: The president of the Marsden Company, prior to the convening of the court when the trial was had, desired to avoid further litigation of the matter, and authorized the attorneys for the Marsden Company to endeavor to bring about a settlement and compromise of the litigation in so far as it was concerned, and authorized them to pay as much as $1,000, if it took that much, to effect a compromise, and placed this money in a bank subject to the order of its attorneys. These attorneys approached the attorneys for appellee, and made a proposition for a compromise, and eventually offered the $1,000. The attorneys for the appellee refused, stating that, while they believed that the Marsden Company was possibly not liable for any negligence--at least they believed its negligence was not as great as that of appellant company's--yet they were afraid, if they accepted this compromise settlement, appellee's right to prosecute the action against the appellant, their joint tort feasor, would be barred. Thus matters stood until six or seven days after verdict and judgment against appellant, when the attorneys for the Marsden Company paid the attorneys for the appellee this money, and they immediately entered a credit upon the judgment against the appellant for this amount of $1,000. We are convinced from all the proof in the case that there was an understanding between the attorneys for the Marsden Company and the appellee's attorneys, prior to the trial, that this amount was to be offered and accepted, and the Marsden Company was to be released, and the case dismissed against it, and that the dismissal was in conformity with this understanding. The question to be determined is whether this operated as a release of the appellant, it being a joint tort feasor. Our opinion is that, if the appellee had accepted this $1,000 in satisfaction of his cause of action or claim for damages, then it would have operated as a release and a bar to any other proceeding against appellant on account thereof. But it is shown by the proof without contradiction that it was accepted as only part satisfaction, and a release of the Marsden Company, but not in satisfaction of his cause of action and claim for damages. It is a universal rule of law that joint tort feasors are jointly and severally liable to the injured party. He may sue any one or all, at his election; but when he once receives satisfaction for the injury done him from one or more of the tort feasors, he is barred from proceeding against the other joint tort feasors. This is upon the idea that he is only entitled to one satisfaction, and to avoid his getting more than one compensation for his injury. There are authorities in many states which hold that any satisfaction from and a release of one joint tort feasor releases all. But on a close investigation of these cases, or at least the most of them, it will be found that they were cases where the proof showed that the injured parties had received full satisfaction for their injuries or cause of action. Such are the cases of Dulaney v. Buffum (Mo. Sup.) 73 S.W. 125; Hubbard v. St. L. & M. R. R. Co. (Mo. Sup.) 72 S.W. 1073; Brown v. City of Cambridge, 3 Allen, 474; Urton v. Price, 57 Cal. 270; Donaldson v. Carmichael, 102 Ga. 40, 29 S.E. 135; and other cases cited in these opinions. The sole reason given in these opinions for the rule as stated is that it is to prevent the injured party from receiving more than one compensation or satisfaction for his injury. We are...