Smith v. Tipps Engineering & Supply Co.

• Decision Date: 28 March 1960
• Docket Number: No. 5-2053,5-2053
• Citation: 231 Ark. 952,333 S.W.2d 483
• Parties: Clay SMITH, Jr., Administrator of the Estate of Dan Davis, Deceased, Appellant, v. TIPPS ENGINEERING & SUPPLY COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 483

333 S.W.2d 483

231 Ark. 952

Clay SMITH, Jr., Administrator of the Estate of Dan Davis Deceased, Appellant, v. TIPPS ENGINEERING & SUPPLY COMPANY, Appellee.

No. 5-2053.

Supreme Court of Arkansas.

March 28, 1960.

Boyce R. Love, Dumas, for appellant.

E. J. Butler, Jack P. West, Forrest City, for appellee.

JOHNSON, Justice.

This is a case of first impression in Arkansas. It involves an interpretation of part of Act 315 of 1941, 'The Uniform Contribution Among Tortfeasors Act.'

In the summer of 1956, The Tipps Engineering & Supply Company, appellee, constructed a grain elevator near Dumas, Arkansas, for T. F. Shea, Jr. and George Cousins, d/b/a Shea and Cousins Grain Elevator. In the course of the construction, appellee installed an overhead truck hoist in the elevator which was for the purpose of lifting the front ends of trucks to facilitate unloading.

In December 1957, Dan Davis, a Negro farmhand who worked for one of the customers of the elevator, was standing near the hoist. As a truck which was being unloaded at the time drove away from the hoist, the hoist fell and struck Dan Davis, killing him almost instantly.

Thereafter, Clay Smith, Jr., appellant, was appointed Administrator of the estate of Dan Davis, and entered into a settlement with the Shea and Cousins Elevator and their insurer for the sum of $12,500, executing to them a release of liability. Also, a 'friendly suit' was entered into and a judgment placed of record.

This action was then filed by the appellant against The Tipps Engineering & Supply Company alleging that faulty installation of the hoist was the cause of the death and asking for damages in the amount of $39,100. Appellee then filed an Answer and Motion to Dismiss, relying on the 'friendly suit' as a bar to any further action based on the death of Dan Davis. After hearing argument from counsel, the Judge granted the motion and dismissed the Complaint.

For reversal, appellant relies upon the following point: 'That, as a matter of law, the trial court erred in dismissing the Complaint of appellant.'

The sole question in this case appears to be whether the 'friendly suit' between Clay Smith, Jr., Administrator of the Estate of Dan Davis, appellant herein, and the Shea and Cousina Grain Elevator, is a bar to this action by appellant against The Tipps Engineering & Supply Company for damages arising out of the same cause of action. Appellant contends that the 'friendly suit' was only a settlement of the claim against Shea and Cousins and that any claim the Administrator ever had against other parties for these damages is still valid and actionable.

The intention of the parties to the 'friendly suit' must be ascertained by looking to the language contained in the Release and Subrogation Agreement executed by them which states:

'We hereby covenant that no release has been or will be given to or settlement or compromise made with any third party who may be liable for any damages to us and we in consideration of the above payment made by Thomas Shea and George Cousins doing business as Shea & Cousins Grain Elevator and the General Accident Fire & Life Assurance Corporation their Insurance Carrier, hereby subrogate to them all rights and causes of action we may have against any person, persons, or corporations whomsoever for damages arising out of the above accident and we authorize Thomas Shea and George Cousins d/b/a Shea & Cousins grain Elevator and the General Accident Fire & Life Assurance Corporation to sue in our names but at the cost of Thomas Shea and George Cousins d/b/a Shea & Cousins Grain Elevator and the General Accident Fire & Life Assurance Corporation and we hereby pledge full cooperation in such action.'

That the suit filed by appellant against Shea & Counsins was only a 'friendly suit' is evident from the wording of the judgment rendered therein which states:

'The defendants have offered and the plaintiff has agreed to accept the sum of $12,500, and this matter is submitted to the court for final approval and rendering of a judgment. The court, being well and sufficiently advised, finds that said settlement is fair and reasonable, and that the said judgment is to be paid in full settlement and satisfaction of any and all claims growing out of the death of the said Dan Davis.'

After exhaustive research we were able to find only two cases in point. Allbright Bros., Contractors, Inc., v. Hull-Dobbs Co., 1953, 209 F.2d 103, 104, was a Sixth Circuit case where an Arkansas tortfeasor settled with an injured party, entered a 'friendly suit' in the state court that recited that the judgment was in full settlement of all claims accruing to the injured party, paid the judgment and then went into Federal Court in Tennessee to recover contribution against joint tortfeasors. The parties agreed that the Arkansas Joint Tortfeasor statutes controlled, and the alleged joint tortfeasors moved to dismiss the complaint on the ground that since the 'friendly suit' did not mention joint tortfeasors, their common liability has not been discharged and, therefore, there was no right of contribution. The district court dismissed and the Court of Appeals affirmed, stating:

'It is the contention of appellant that since the settlements and judgments were in full and complete settlement and satisfiaction of any and all claims of the injured parties and all damages of every kind and description arising out of the accident, such settlements and...