Treadway v. Union-Buffalo Mills Co.

• Court: South Carolina Supreme Court
• Writing for the Court: JONES, C.J.
• Citation: Treadway v. Union-Buffalo Mills Co., 84 S.C. 41, 65 S.E. 934 (S.C. 1909)
• Decision Date: 23 October 1909
• Parties: TREADWAY v. UNION-BUFFALO MILLS CO. et al.

65 S.E. 934

84 S.C. 41

TREADWAY v. UNION-BUFFALO MILLS CO. et al.

Supreme Court of South Carolina

October 23, 1909

Appeal from Common Pleas Circuit Court of Union County; I. C. Klugh Judge.

Action by Dora E. Treadway, as administratrix of Joseph Treadway deceased, against the Union-Buffalo Mills Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. A Sawyer and Smythe, Lee & Frost, for appellants. V. E. De Pass and Sanders & De Pass, for respondent.

JONES C.J.

Joseph Treadway while in the employment of defendant company on February 19, 1907, was so injured by the fall of an elevator operated by him that he died on June 15, 1907. His administratrix, the plaintiff, brought this action to recover damages, alleging negligence of defendant in failing to equip and maintain said elevator with safe and suitable rope and clamps, and in failing to warn intestate of its defective and unsafe condition. The defendant company answered, and, in addition to general denial and pleas of assumption of risk, contributory negligence, and injury by fellow servant, alleged that on May 28, 1907, intestate executed this release:

"The State of South Carolina, County of Union.

"In consideration of the Union-Buffalo Mills paying my Doctor's bill and nursing, and allowing me ninety cents per working day from the 19, day of Feb. 1907, to the 19 day of April 1907, and in further consideration of giving me $12.00, I hereby release the said Company from any loss, injury or damage received by me through the falling of the elevator in one of its mills on the 19th day of Feb. 1907, the said amounts being in full satisfaction of all claims or demands whatsoever that I have or may have against the said Company arising from the injuries received by me by the afore mentioned accident.

"Witness my hand and seal this 28th day of Feby., 1907.

Joe his X mark Treadway. [Seal.]

"Witness: S. S. Linder.

"J. Walter Sanders.

"W. L. Linder."

The plaintiff introduced testimony to sustain the allegations of the complaint, and defendants introduced testimony to rebut the same, and also put in evidence the foregoing release. The plaintiff put in evidence the following tender: "We, the undersigned as attorneys for the plaintiff, Mrs. Dora Estella Treadway, and those for whom and for whose benefit she brings this action, do hereby offer to return, and do now tender the defendants herein, the sum of $54, said amount being or representing the work days between the 19th day of February, 1907, and the 19th day of April, 1907, at ninety (90) cents per day, as stipulated in a certain paper or instrument of writing purporting to be a release; and the further sum of $12, set out in said paper or instrument purporting to be a release, and to have been paid to deceased, Joseph Treadway, together with whatever sum was paid by the mill for the doctor's bill and nursing, said amount being unknown to us, and for which reason we are unable to make a tender of any definite amount on account of said doctor's bills, nursing, etc. This tender is made after having requested that the amount of money be paid out for doctor's bills, nursing, etc., should be furnished us, which has not yet been done. We are, however, ready and willing to pay the amount paid out for doctor's bills nursing, etc., as soon as furnished us. This offer and tender is made for the purpose...