Smith v. Dixie Park & Amusement Co.

• Citation: 157 S.W. 900
• Parties: SMITH v. DIXIE PARK & AMUSEMENT CO.
• Decision Date: 13 June 1913
• Court: Supreme Court of Tennessee

Page 900

157 S.W. 900

SMITH v. DIXIE PARK & AMUSEMENT CO.

Supreme Court of Tennessee.

June 13, 1913.

Certiorari to Court of Civil Appeals.

Action by Leonard Smith against the Dixie Park & Amusement Company and another. There was a judgment of the Court of Appeals, reversing a judgment for the named defendant, and it brings certiorari. Denied.

T. F. Kelly, of Memphis, for complainant. George E. Neuhardt and Charles W. Anderson, both of Memphis, for defendant.

WILLIAMS, J.

This suit was brought originally against the Dixie Park & Amusement Company, and later on the Memphis Consolidated Gas & Electric Company was brought before the court as a defendant. Both defendants were declared against as liable for personal injuries suffered by plaintiff, Smith, it being alleged that the first-named defendant operated an amusement park in Memphis, electric current for lights, machinery, etc., for which was supplied by the other defendant; that the defendants had placed two electric wires on top of a fence, five feet high, inclosing the park, which wires were naked and charged with a dangerous current of electricity, so supplied; that, while walking along a street on the line of which the fence and wires were strung, plaintiff had occasion to stop to wait for a friend, and unconsciously laid his hand on the top of the fence and received a shock from the current. Damages were laid at $10,000, as against the defendants as joint tort-feasors.

Before the cause was reached for trial, the Gas & Electric Company entered into contract with plaintiff quoted below, and the cause thereafter proceeded against the original defendant alone, which pleaded the contract as an accord and satisfaction. The plaintiff filed a replication, denying that he had received full satisfaction, or had discharged the damages. On the coming in of plaintiff's testimony, the pleading defendant made a motion (which was granted) for peremptory instructions to the jury to return a verdict of nonliability, based upon the effectiveness of the contract as an accord and satisfaction.

After reciting by way of preamble, in substance, the bringing of the suit as above outlined, plaintiff's doubt, on advice of counsel, of his right to a recovery against the Gas & Electric Company, but of confidence in his right to a recovery against the Park & Amusement Company of "a verdict far in excess of the amount hereinafter set out," and plaintiff's "desire to settle and adjust any claim plaintiff might have against the Gas & Electric Company by reason of said injuries," the contract provided:

"Therefore, for and in consideration of the sum of four hundred dollars paid to me by the said Memphis Consolidated Gas & Electric Company, the receipt of which is hereby acknowledged, I expressly agree and covenant with the said Gas & Electric Company to dismiss and not further prosecute my suit now pending against it in the circuit court of Shelby county, and I further agree, for myself, my heirs, and personal representatives, not to reinstitute said suit or prosecute any other suit against said Gas & Electric Company, by reason of the injuries above referred to, that have already or may hereafter develop by reason of said accident, and I agree to hold harmless said Gas & Electric Company for any and all claims or liabilities against it by reason of said accident.

"This agreement, however, is not entered into or intended by me as a release of any claim or actions that I might have against the said Dixie Park & Amusement Company, by reason of the matters above set forth; nor is it an agreement to dismiss my suit now pending against said Dixie Park & Amusement Company, and it is expressly agreed and understood that this agreement is not in any wise to inure to the benefit of the Dixie Park & Amusement Company.

"It is clearly understood that this instrument is merely a covenant not to sue said Gas & Electric Company, and not a release of first party's damages against the real person liable, the Dixie Park & Amusement Company."

Judgment was entered in favor of the Park & Amusement Company in the circuit court, appeal was prayed to the Court of Civil Appeals, which court reversed said judgment, and the cause was brought into this court by petition for certiorari to review the ruling of the last-named court.

The single error assigned is the refusal of that court to sustain the plea of accord and satisfaction, alleged to have been proven by the contract quoted; but under this error several phases of the law respecting the release of a joint tort-feasor have been debated.

The first contention of plaintiff, Smith, is that section 5570 of Shannon's Code, properly construed in relation to and in connection with the contract, works a change of the rule of the common law that the release of one joint tort-feasor releases another tort-feasor. This section reads: "Sec. 5570. All receipts, releases, and discharges in writing, whether of a debt of record or a contract under seal, or otherwise, shall have effect according to the intention of the parties thereto."

It is argued that torts as well as contracts fall within the purview of this section, and that, since the contract above affirmatively shows an intention not to release the Park & Amusement Company, it should be given the intended effect — this, if the instrument be construed to be a release proper.

This section of the Code has never been construed by this court to have reference to actions ex delicto; on the contrary, it has been confined as having relation to actions ex contractu only.

In Snyder v. Witt, 99 Tenn. 622, 42 S. W. 442, the case of Brown v. Kencheloe, 3 Cold. 192, is cited as holding that in such a case a discharge of all tort-feasors results, whether the parties intended it so or not; and the court proceeded to say: "The like rule, however, does not apply to contracts, where it is intended that the release of one jointly bound shall not operate to release another co-obligor. Shannon's Code, § 5570."

The next insistence of plaintiff is that, in view of the fact that the instrument under consideration does not purport to satisfy his full injury, but the contrary, and stipulates a reservation of the right to sue the Park & Amusement Company, it cannot be effective to release that company.

Reservations of this character are not infrequently inserted in releases, and consideration of their effect has given rise to different rulings on the part of the courts of this country; the conflict being sharp and far from even an approach to settlement.

A number of courts hold that a release which shows that it is not intended to evidence a settlement of the plaintiff's entire demand based on a tort, but reserves the right to pursue one or more of the joint wrongdoers for the balance, is not to be treated as a release of all, but as a covenant not to sue, with result of nonrelease of such other or others. Bloss v. Plymale, 3 W. Va. 393, 100 Am. Dec. 752; Ellis v. Esson, 50 Wis. 138, 6 N. W. 518, 36 Am. Rep. 830; Gilbert v. Finch...