Waterman-Fouke Lumber Co. v. Miles

• Decision Date: 14 April 1924
• Docket Number: 23860
• Court: Mississippi Supreme Court
• Parties: WATERMAN-FOUKE LUMBER CO. et al. v. MILES. [*]

99 So. 759

135 Miss. 146

WATERMAN-FOUKE LUMBER CO. et al. v. MILES. ^[*]

No. 23860

Supreme Court of Mississippi

April 14, 1924

Division A

(Division A.) January 1, 1920

1. COMPROMISE AND SETTLEMENT. Release. Torts. Tort-feasors jointly and severally liable; settlement in full of one joint tort-feasor discharges both; release of one joint tort-feasor held not to discharge both.

Under the principle that joint tort-feasors being both jointly and severally liable, a compromise and settlement in full with one discharges both. Held, that the following release by one joint tort-feasor did not discharge both:

"I for myself, my heirs, executors, administrators and assigns do hereby release and forever discharge Mississippi & Western Ry. Company of and from all claims or demands, actions, or causes of action in law or in equity from any matter, cause or thing whatsoever prior to the date hereof, and on account of personal injuries, and all other loss or damage (including loss of or damage to the property of the undersigned) resulting or to result from an accident to me which occurred on, or about the 16th day of February, 1922."

2. MASTER AND SERVANT. Railroad not liable for injury to track foreman by defect which he was required to repair.

A railroad track foreman, whose duty it was to repair the railroad track constituting the section over which he was foreman, received an injury caused by the defective condition of a part of said track, while passing over it in the car used by himself and his section crew in going to another part of said track for the purpose of repairing the latter. Held the railroad company not liable under the principle that a servant whose duty is to repair defective ways, means, and appliances of the master will not be heard to complain of an injury received on account of such defects.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Jasper county, Second District, HON. W. L. CRANFORD, Judge.

Action by W. V. Miles against the Waterman-Fouke Lumber Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Suggestion of error overruled and case reversed and remanded.

J. A. McFarland and Deavours & Hilbun, for appellants.

I. The lower court erred in sustaining the demurrer of appellee to the special plea of accord and satisfaction filed by the appellant Waterman-Fouke Lumber Company. This plea states that on the 23d day of June A. D., 1922, the Mississippi & Western Railroad Company paid to the plaintiff and the plaintiff accepted of it the sum of two hundred and two dollars and fifty cents in full settlement, satisfaction and discharge of the grievances mentioned. While the payment was made by the Mississippi & Western Railroad Company, yet it was made and received by appellee, as stated in the plea, in full satisfaction and compensation for all the injuries suffered.

For the purpose of the demurrer the allegations of the plea are taken as true. Smith v. State, 101 Miss. 853, 58 So. 539. The rule announced by our court is well stated by Judge TRULY in Bailey v. Delta Electric Light Company, 86 Miss. 634, 38 So. 354.

The plea does not set out the case of an agreement not to sue one joint tort-feasor. But it sets out a payment made and accepted in full settlement, satisfaction and discharge for the injuries inflicted. There is, of course, a marked distinction between an agreement not to sue one joint tort-feasor and in a settlement made by one joint-tortfeasor where it is clearly and manifestly the intention of the parties that the settlement shall be full compensation for all the injuries suffered. This case, as the plea states, and these statements must be taken as true, is a case where the amount was paid and accepted in full settlement, satisfaction and compensation for all injuries suffered by appellee on account of the accident.

II. Instruction number one given for the plaintiff was erroneous. Plaintiff's counsel lost sight altogether of the law applicable to the case, growing out of the nature of the employment of the plaintiff and growing out of the duty that devolved on the plaintiff. It is to be remembered that the plaintiff was a foreman and was employed for the express purpose and business of keeping the track in repair. That was exactly the duty that devolved on the plaintiff. It is absurd to say that an employer must furnish a safe track for the employee to go over when that very employee's duty is to keep the track in repair. If the law is, as announced in this instruction, for the plaintiff, then it would be clear impossibility for an employer ever to protect himself against the claim of a track foreman because of a defect in the track.

The very fact that repairs must be made, protects the employer against the defect for which repairs are being made. The very purpose of making repairs is to cure defects. So when this instruction announces that the employer must furnish to the employee (the plaintiff) a safe track, when it is the duty of the plaintiff himself as foreman to repair the track and to keep it in good condition, it states a proposition that is not only not sound in law but at which every prompting of good morals revolts.

Pack & Pack, for appellee.

Appellants first contend that the court erred in sustaining the demurrer of appellee to the special plea of Waterman-Fouke Lumber Company. We are in accord, on the proposition that if there are two or more joint tort-feasors, and plaintiff accepts a certain sum in full compensation for the injury sustained, all are released. We respectfully submit that this release nowhere recited that Miles accepted the sum of two hundred and two dollars and fifty dollars as full compensation for his injury. It does recite that for the said sum he was to "release and forever discharge the Mississippi and Western Railway Company of and from all claims or demands, actions, or causes of action," etc.

This, we contend, amounts to nothing more than a covenant not to sue. There is no proposition of law that seems to be any better settled than that partial satisfaction made by one tort-feasor, which is not intended as a settlement in full for the injury and which is not received as full compensation, does not release the other tortfeasor, but at most entitled the latter to a credit upon the amount of damages awarded against him. Bailey v. Delta Electric Light Company, 86 Miss. 634, 38 So. 354; Bogdahn, et al., v. Pascagoula Street Railway & Power Company, 79 So. 844; Louisville & Evansville Mail Company v. Barnes, 64 L. R. A. 574.

II. The court did not err in granting instruction number one for plaintiff. This instruction of course must be considered in the light of the testimony in the record. At the time of the injury or a short time prior thereto, appellee was directed by Walker to do certain work on the railroad track. His job generally was to keep up the track of the saw mill company from the mill to the woods, a different track altogether from the one on which he was injured. He was carrying out the specific order of Walker at the time of the injury.

Appellee had been upon the track, had worked but a few days, acting under the direct orders and doing work at the particular place and doing the particular kind of work, namely; taking out rotten ties, and putting in new ones under the direction of Walker. Yet counsel would hold appellee accountable for the defective track. Surely he does not mean to contend that it was not the duty of appellants to furnish appellee a reasonably safe motor car, including a reasonably safe pulley thereon, and a reasonably safe belt to be used thereon. We respectfully submit that whether or not appellants failed in these respects and as to whether or not such failure was negligence, proximately causing appellee's injury, were all questions for the jury and this instruction submits the same for its decision.

In conclusion, we earnestly insist that there has been no error of law committed by the trial court.

Argued orally by Henry Hilbun, for appellants, and W. J. Pack, for appellee.

OPINION

ANDERSON, J.

Appellee, W. V. Miles, recovered a judgment in the circuit court of Jasper county against appellants, Waterman-Fouke Lumber Company and Mississippi & Western Railroad Company, for personal injuries received by him while in the employ of appellants as a railroad track foreman, which injuries he alleged were caused by the wrong of the appellants, from which judgment appellants prosecute this appeal.

Appellee was injured by falling overboard from the motor car used by himself and his crew in their track repair work. Said motor car had coasted to the bottom of a hill,...