Bogdahn v. Pascagoula Street Railway & Power Co. ( 1918 )

Holden, J.,

delivered the opinion of the court.

Appellants, as next of ldn, entered suit against the Cumberland Telephone & Telegraph Company and the appellee Pascagoula Street Railway & Power Company as joint tort-feasors, for damages for the death of Herman Bogdahn, who was electrocuted by one of the electric wires belonging to the appellee Pascagoula Street Railway & Power Company. It was alleged that the death of Herman Bogdahn was caused by the negligence of the appellee street railway company in maintaining a defective and dangerous uninsulated wire heavily charged with electricity' close to one of the poles of the telephone company on which the deceased employee of the telephone company was required to work. The record shows the facts and circumstances of the killing are practically undisputed, and that the appellee Pascagoula Street Bailway & Power Company was apparently guilty of negligence in maintaining the deadly electric wire within eighteen inches of the telephone pole, about ten feet below the cross-arms, with knowledge of the fact that the employees of the telephone company would climb the pole and come in close proximity to the deadly wire in the performance of their duties as linemen of the telephone company; at the time deceased was electrocuted, he was performing the duties of his employment as lineman and was on the pole with his body between the pole and the defective, deadly electric wire; he had a telephone wire in his hand, the other end of which touched the ground, and his clothes were wet from the rain; while in this position, the witnesses testified, the electric wire ‘‘grabbed him,” and he was burned to death. The case was submitted to the jury, which returned a verdict in favor of the defendant Pascagoula Street Bailway & Power Company, from which verdict and judgment the plaintiffs below appeal here.

It appears that, before the trial of this case in the lower court, a covenant was entered into between the Cumberland Telephone & Telegraph Company and the appellants, whereby appellants, in consideration of seven thousand five hundred dollars paid to them by the telephone company, agreed to dismiss and not to further prosecute the suit, nor prosecute any other suit, against the Cumberland Telephone & Telegraph Company for any damages or claim whatsoever growing out of the death of the said Herman Bogdahn. The case then proceeded against the appellee Pascagoula Street Bailway & Power Company, who, it is alleged, was a joint tort-feasor with the telephone company in the negligent killing of the deceased.

The principal contention of appellants here, and the only one that merits notice, is that the lower court erred in not granting a peremptory instruction to the jury to find for the plaintiffs below because the uncontradicted testimony in the case showed that the appellee Pascagoula Street Railway & Power Company was guilty of negligence causing the death of Herman Bogdahn; that there was no question of liability for the jury to pass upon, and therefore the court erred in permitting the jury to pass upon the question of negligence vel non.

It is urged by appellants that we should reverse the judgment of the - lower court because a peremptory instruction to find for the plaintiffs was not given by the court, whereas, it appears, and is admitted by the appellants, that no peremptory instruction for plaintiffs was asked in the lower court. However, counsel urge that this court should review this ease and reverse on the ground that the verdict of the jury was contrary to the law and the evidence, and that this assignment of error is sufficient for a review of the case on the record, even though a peremptory instruction was not refused as it was not asked for.

We believe the point advanced by appellants might be sustained by us on the ground that the verdict of the jury was contrary to the law and the evidence, if this were a case in which the finding of the jury was manifestly contrary to the law and facts. But such is not the case before us. Conceding, for the purpose of discussion, the undisputed proof shows that appellee Pascagoula Street Railway & Power Company negligently caused the death of Bogdahn and there was no question of negligence to submit to the jury, and that the seven thousand five hundred dollars paid by the joint tortfeasor, telephone company, to appellants was merely for a covenant not to sue the telephone company and that this amount of money was not paid in full satisfaction of all damages; and conceding further that the written covenant not to sue the telephone company could be explained by oral testimony, as was done in this case, and that the jury had no right to pass upon the disputed fact as to whether the covenant was a full release or a covenant not to sue, and that the payment by the -joint tort-feasor, telephone company, was merely an agreement to forbear as to it — conceding all these things contended for by appellants, we are unable to say the verdict of the jury was contrary to the law and the evidence, because the jury were properly instructed that, if they believed from the evidence the appellee Pascagoula Street Railway & Power Company was guilty of negligence in causing the death of Herman Bogdahn, they should, in assessing the damages, allow a credit of the seven thousand five hundred dollars to the appellee in the amount assessed against appellee as damages in the case. In other words, if the jury believed that the seven thousand five hundred dollars paid to appellants by the telephone company was sufficient to compensate appellants in full for all damages for the death of the deceased, then the verdict of the jury should have been for the defendant, even though they believed that appellee was liable as a joint tort-feasor; thereby finding that the amount due appellants as damages for the death was no more than seven thousand five hundred dollars, the amount already paid appellants by the joint tortfeasor, Cumbe'rland Telephone & Telegraph Company. The jury had a right to find that appellants had been fully compensated for the one injury by the payment of the seven thousand five hundred dollars by the joint tort-feasor, telephone company, for the joint negligence of appellee and the telephone company. For all we know, this was the conclusion reached by the jury in this case. At all events, we cannot say from the record that the jury did not base their finding upon the conclusion that the seven thousand five hundred dollars already paid by the telephone company was sufficient and full compensation to the appellants as damages for the one cause or injury. The jury certainly had a right to reach this conclusion under the law and the facts, and probably did so; and we cannot disturb the verdict on the ground that it was contrary to the law and the evidence.

The payment of the seven thousand five hundred dollars and covenant not to sue entered into between appellants and the joint tort-feasor, Cumberland Telephone & Telegraph Company, amounted to a surrender of appellants’ right of action against the telephone company for damages; however, this was only a release from suit of the telephone company, one of the joint tort-feasors, but it was not a release of the other tortfeasor, appellee, except pro tanto.

This court has held that there is no release of joint tort-feasors unless there be a settlement by full compensation for the injury inflicted. Any amount paid by a joint tort-feasor, which is not paid and received as a full settlement of the claim, is to go only as a payment on the claim, for damages, and is not a bar to suit against any other joint tort-feasor. Washington Bailey v. Delta Electric Light, Power & Mfg. Co., 86 Miss. 634, 38 So. 354; Sawmill Const. Co. v. Bright, 116 Miss. 491, 77 So. 316; Louisville & Evansville Co. v. Barnes, Adm’r, 117 Ky. 860, 79 S. W. 261, 64 L. R. A. 574, 111 Am. St. Rep. 273.

Judgment of the lower court is affirmed.

Affirmed.