Southwest Mississippi Elec. Power Ass'n v. Harragill, 43711
| Decision Date | 24 January 1966 |
| Docket Number | No. 43711,43711 |
| Citation | 182 So.2d 220,254 Miss. 460 |
| Parties | SOUTHWEST MISSISSIPPI ELECTRIC POWER, ASSOCIATION v. D. B. HARRAGILL, d/b/a O. K. Welding Company and Enlow M. Kee, Jr., Floyd Smith and Tod Smith, d/b/a Colonial Chevrolet Company. |
| Court | Mississippi Supreme Court |
Thomas A. Bell, Daniel, Coker & Horton, Jackson, for appellant.
Richard T. Watson, Woodville, Stratton & Jones, George H. Gulley, Jr., Brook-haven, Carter & Mitchell, Jackson, for appellees.
Southwest Mississippi Electric Power Association, plaintiff below and appellant here, sued D. B. Harragill, d/b/a O. K. Welding Company, and Enlow M. Kee, Jr., et al., d/b/a Colonial Chevrolet Company, defendants below and appellees here, seeking common law indemnity. The trial court sustained demurrers, dismissed the suit, and plaintiff appealed. We affirm because the sum paid out by plaintiff, and for which it seeks indemnity, was a voluntary payment.
Southwest purchased a truck from Colonial Chevrolet Company. In order to comply with Southwest's specifications that the truck be equipped with electric holding brakes, the O. K. Welding Company was engaged by Colonial Chevrolet Company to install the electric holding brakes on the truck. The truck was delivered October 18, 1957, and was used thereafter until August 6, 1958, and the electric holding brakes functioned properly at all times. On August 6, 1958, an employee of Southwest was operating the truck on behalf of Southwest along a highway in Adams County when he overtook a vehicle driven by Mrs. Ethel G. Dunn which was proceeding in the same direction. The driver of Southwest's truck attempted to apply his brakes and discovered that the brakes would not function, and the brake failure resulted in Southwest's truck colliding with the rear end of the automobile driven by Mrs. Dunn, who received serious personal injuries in the collision.
Mrs. Dunn filed suit in the Circuit Court of Adams County against Southwest and its driver in the amount of $101,049.10. She charged that the driver of Southwest's truck was guilty of negligence in (1) attempting to pass the Dunn vehicle in a portion of the highway marked with a yellow line prohibiting passing at that place; (2) operating the truck at an illegal and excessive speed; (3) failing to have the truck under proper control; (4) failing to keep the proper lookout and (5) operating the truck too close to the vehicle driven by Mrs. Dunn.
Southwest employed competent counsel to defend the suit and after a full investigation of the case, Southwest filed its answer denying all allegations of negligence charged in Mrs. Dunn's declaration. It alleged as an affirmative defense the facts concerning the purchase of the truck and the installation of the electric holding brakes by O. K. Welding Company; that the said O. K. Welding Company used improper brass fittings which were improperly assembled and failed to provide adequate and sufficient contact between said brass fittings; that Southwest had used all reasonable care and caution to inspect and maintain said truck, but it was unable, in the exercise of reasonable care and caution, to discover said defective fittings and the improper assembly of said fittings until after the collision with Mrs. Dunn's automobile. Southwest alleged in its answer that by reason of the sudden failure of the said brakes, the driver of the truck was confronted with a sudden emergency and did all within his power to stop the truck and avoid the collision.
On the advice of counsel, Southwest settled the suit filed against it by Mrs. Dunn by paying her the sum of $17,000.00 and incurred attorney's fees and other expenses in the amount of $2,211.16, making a total amount of $19,211.16, which Southwest seeks in the present suit to recover from Colonial Chevrolet Company and O. K. Welding Company.
In addition to the foregoing facts, Southwest alleged in the present suit that when its investigation of the claim made by Mrs. Dunn revealed the improper brass fittings in the electric holding brakes, Southwest notified Colonial Chevrolet Company and O. K. Welding Company of this fact and demanded that said Chevrolet Company and Welding Company assume the defense of the action filed against Southwest by Mrs. Dunn. Both companies refused and thereafter Southwest settled as hereinabove stated.
Southwest alleged in its declaration that it had no knowledge or means of knowing that the defective and improper brake fittings would break and give way at said time and place. Southwest alleged that Colonial Chevrolet Company and O. K. Welding Company were primarily liable to Mrs. Dunn and that Southwest was secondarily liable to Mrs. Dunn and was legally obligated in damages to her.
Two principal questions are presented for our determination: (1) Whether under the facts alleged by Southwest it was legally liable to Mrs. Dunn for the damages sustained by her in the collision between her automobile and the truck belonging to Southwest, and (2) if Southwest was not liable to Mrs. Dunn, was the payment to her voluntary. We hold that according to the allegations of the declaration filed by Southwest there was no liability on its part to Mrs. Dunn and the payment made to her was the act of a volunteer and cannot be recovered in an action for indemnity.
In the modern development of common law indemnity, the cases fall into three categories: (1) cases involving vicarious liability, (2) cases where the indemnitee has failed to discover the condition that caused the initial injury, and (3) cases where both indemnitor and indemnitee have breached a duty, but as between themselves, the indemnitor has agreed to perform. 1 It is not necessary to determine whether the present case comes within one of these three categories. The payment was voluntary, and we base our decision on that issue.
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