Pearson v. Weaver, 43420

• Decision Date: 12 April 1965
• Docket Number: No. 43420,43420
• Parties: Billey Dean PEARSON v. Bobby WEAVER.
• Court: Mississippi Supreme Court

Page 666

173 So.2d 666

252 Miss. 724

Billey Dean PEARSON v. Bobby WEAVER.

No. 43420.

Supreme Court of Mississippi.

April 12, 1965.

Alexander, Feduccia & Alexander, Cleveland, for appellant.

Jacobs, Griffith & Hatcher, Cleveland, for appellee.

INZER, Justice.

This case is before us on appeal from a judgment of the Circuit Court of Bolivar County, wherein the court sustained a plea in bar to the declaration filed by appellant, Billy Dean Pearson, against appellee, Bobby Weaver.

On October 9, 1963 appellant filed his declaration and alleged that he suffered serious and permanent injuries when the car in which he was riding as a passenger collided with a pickup truck being driven by appellee. Appellant further charged that the collision was caused by the negligence of appellee in driving his pickup truck in front of the 1939 Ford automobile, being driven by Carl Melton, in which appellant was riding, and that the accident happened on or about November 10, 1962 on Chrisman Avenue in the City of Cleveland, Mississippi.

Defendant answered the declaration on November 12, 1963. He admitted that his pickup truck was struck by a bar owned and operated by Carl Melton and in which appellant was riding, but denied that he was guilty of any negligence that caused or contributed to appellant's injuries.

On November 19, 1963 appellee filed as a separate plea a plea in bar. He alleged in his plea that on November 12, 1962 appellant had executed in consideration of $30 a written release whereby he had released Weaver Brothers Service Station, in which appellee was a partner, from any and all liability as a result of the accident which happened on or about November 10, 1962, and that this release released appellee from any and all claims as a result of the above-mentioned accident.

Appellant then filed a notice of special matter in which he alleged that the plea in bar was filed as a separate and distinct defense and was not incorporated in his answer as required by statute, and that the same should be stricken for this reason. Appellant further alleged that the release was obtained by constructive fraud, misrepresentation, non-disclosure of principals, inadequate consideration, mutual mistake and other reasons. Appellant offered to return the $30 paid to him. He requested that the matter contained in his special matter be tried by a jury.

The cause came on for hearing at the regular November term of court, and counsel for appellant and appellee entered into the following stipulation:

'It is stipulated and agreed that the plea in bar of accord and satisfaction filed by the defendant in the above styled and numbered cause, and the answer and notice of special matter filed in replication thereto by the plaintiff shall be heard by the Court without a jury, the Court to determine all questions of fact and law with reference to the plea in bar and the answer and affirmative matter filed thereto.'

The trial judge then heard the evidence relative to the facts and circumstances surrounding the accident, the extent of injuries, and the execution of the release. He then took the case under advisement, and ten days later entered an order sustaining the plea in bar, and dismissed the suit. From this order this appeal was prosecuted.

Appellant contends the trial court was in error in considering the plea in bar on its merits, because it was not incorporated in the answer as required by Mississippi Code Annotated section 1475.5 (1956). This section states in part as follows:

'Pleas in circuit court are hereby abolished and every defense heretofore presentable by plea shall be made in an answer * * *.

'If the defendant desire to prove by way of defense in an action, any affirmative matter in avoidance, which by law may have been proved heretofore under special plea he shall set forth in his answer to the action such affirmative matter and incorporate such defense therein, otherwise such matter shall not be allowed to be proved at the trial * * *.'

It is apparent that had appellant insisted on a separate hearing of the motion to strike this plea in bar it should have been sustained. However, after entering into a stipulation that the trial judge could hear and determine the issues raised by the plea in bar and the notice of separate matter, he cannot now complain of the fact that the trial judge considered the plea in bar on its merits. It was a matter in the discretion of the trial judge as to whether he would consider the plea on its merits. Appellant does not contend that he was in any way prejudiced by the late filing of the plea. The trial judge had a right to consider the plea as an amendment to the answer, which he evidently did. Under the facts and circumstances of this case, we do not consider this action of the trial judge as error.

Appellant further contends that the consideration of $30 paid by appellee was so grossly inadequate as to shock the conscience of the Court, and infers fraud and misrepresentation. The trial judge observed and heard the witnesses testify relative to the facts and circumstances surrounding execution of the release, and found that this contention of appellant was not well taken. The trial judge no doubt considered along with the other evidence the fact that a period of three weeks elapsed from the time appellant signed the release until he was paid the $30 consideration. Appellant had every opportunity to change his mind and refuse to accept the payment, but he did not do so. He received the check and cashed it without complaint. The finding of the trial judge had the same effect as the verdict of a jury on this issue. We said in Hall v. State, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963), where the trial judge tried the issues without a jury, that:

'The lower court judge, in this case, had sole authority for determining the credibility of the witnesses. Pate Lumber Co. v. Weathers, 167 Miss. 228, 146 So. 433. We have heretofore held that the findings of a court in such circumstances are entitled to the same weight as a jury verdict, Key v. Withers & Wellford, 159 Miss. 125, 131 So. 868, and we have further held that the findings of fact should not be disturbed unless they are manifestly...