279 Mo. 69 | Mo. | 1919
Plaintiff sues for damages in the sum of $10,000 for the death of her husband, Theodore C. Clark, which was alleged to have been caused by the negligence of the plaintiff on the 7th day of November, 1914.
At the close of plaintiff’s evidence at the trial in the Circuit Court of the City of St. Louis, plaintiff took an involuntary nonsuit, with leave to move to set
From appellant’s statement we quote as follows:
“Deceased was in the employ of the Southwestern Telegraph and Telephone Company (hereinafter called the Telephone Company) as ‘trouble man/ his duties consisting of locating and. remedying wire trouble on the lines of his employer. On this date the defendant, Union Electric Light & Power Company (hereinafter called the Light Company), the Telephone Company and the City of St. Louis were maintaining their respective wires upon poles belonging to the Telephone Company, there being a joint user of said poles on what was known as the Manchester Line, of the Telephone Company^ The Light Company maintained wires upon two cross-arms above the cross-arms and wires of the Light Company. There was a lead cable running from the ground to a cable box in the midst of the wires, which cable ran alongside of and perpendicular with the pole.
“On the date mentioned deceased was ordered by the trouble tester of the Telephone Company to go out on the Manchester Line and locate and correct what appeared to be a ‘ground’ on one of the wires of the Telephone Company. A test at the station with instruments used for that purpose showed that the wire was not crossed with the wires of the Light Company or with any other, but that the line was simply grounded. Deceased went out on the line and was upon the pole located at Taylor and Manchester Avenues of the Manchester Line of the Telephone Company when he was seen to fall from amongst the wires to the ground, a distance of from 30 to 36 feet. He was dead when eyewitnesses reached him. He had an electric bu,rn in the palm of his left hand and his neck was broken. He was wearing canvas gloves at the time. It was necessary
One of plaintiff’s witnesses testified as follows: That the Telephone Company had a rule whereby the men were supposed to wear rubber gloves where they were handling wires which are in contact with or in close proximity with high-tension wires, but that it was not the custom of the Telephone employees to observe that rule universally, but that if they were working on high-tension wires they Avould observe the rule. In working with the telephone wires they would not generally use rubber gloves; that when a wire gets crossed with an electric light wire it has the same voltage as the electric light wire, and then the precaution is taken to protect the person from shock.
The following quotations are taken from respondent’s statement:
“At that time the Telephone Company had provide-ed, among other benefits, a death benefit plan for compensation to the widow or dependents of employees killed while in the service of the company. The original fund for the creation of this plan was furnished by the
“Á demand was made on the employer for damages, and it appears that the Telephone Company denied liability, and thereafter Mrs. Clark, the plaintiff, received from the Telephone Company the sum of $2760, and executed an instrument in writing,, which is as follows:
“ ‘Covenant Not to Sue.
“ ‘Whereas, On or about the 7th day of November, 1914, Theodore C. Clark, a married man of the City of Webster, St. Louis County, Missouri, was in the employ of the Southwestern Telegraph & Telephone Company, as a repairman, and was working at or near the intersection of Taylor and Manchester Avenues, in the City of St. Louis, on a pole owned by the said company on said date; and,
“ ‘Whereas. On said 7th day of November, 1914, while the said Theodore C. Clark was working on said pole at said location, he came in contact with a live
“ ‘Whereas, I claim that my husband, the said Theodore C. Clark, received the injuries aforesaid, and from which he died as aforesaid, under circumstances which I claim renders both the Southwestern Telegraph & Telephone Company and the Union Electric Light & Power Company liable in damages, although such liability is expressly denied by said Telephone Company in so far as it is concerned, and I, being desirous to compromise and settle the matter in so far as it relates to the said Southwestern Telegraph & Telephone Company, do hereby and have elected to accept the provisions of the plan for Employees’ Pension, Disability and Death Benefits of the Southwestern Telegraph & Telephone Company in lieu of any and all actions for damages against the said Southwestern Telegraph & Telephone Company, by reason and on account of the death of the said Theodore C. Clark, my husband.
“ ‘Now, Therefore, In consideration of the sum of $2679, to me paid by the Southwestern Telegraph & Telephone Company, the recéipt whereof is hereby acknowledged, I do. hereby compromise said claim, and do hereby release and forever discharge the said Southwestern Telegraph & Telephone Company only from any and all liabilities for all claims for and on account of. the death of my husband, the said Theodore C. Clark, and do also release and discharge the said Southwestern Telegraph & Telephone Company only from all suits, actions or causes of action, which I have or might have against the said Southwestern Telegraph & Telephone Company, for and on account of the death of my said husband, as aforesaid.
“ ‘ I hereby expressly refuse and decline to release the said Union Electric Light &• Power Company from any claims for damages which I may have or might have against it, and do not intend to hereby waive any claims
“ ‘In Witness Whereof, I have hereunto set my hand in the City of St. Louis, State of Missouri, this 2nd day of November, 1914.
“ ‘Celia Weisling Clark,
“ ‘Witnesses:
“ ‘George C. Egger.
“ ‘E. H. Painter.’
“Mr. George C. Egger, who appears as one of the witnesses to this instrument, was the attorney for Mrs. Clark at the time, and according to her testimony Mr. Egger had made claim against the Telephone Company and against the Union Electric Light & Power Company for damages, as such attorney, and that was prior to tbe settlement that was made with the Telephone Company.”
It is contended that the court erred in holding that the instrument of November 7, 1914, executed by appellant to the Southwestern Telegraph & Telepbone Company, was a release and was not merely a convenant not to sue said Telephone Company.
The above mentioned instrument was executed prior to the Act of March 23, 1915, Laws 1915, p. 269, which changed the common law rule concerning the legal effect of the release of one joint tortfeasor.
The instrument is therefore to be construed in the light of the common law as it existed in this State prior to the passage of the above statute. Under the common law the release of one joint tortfeasor operated to release all joint tortfeasors. [Dulaney v. Buffum, 173 Mo. l. c. 14; Hubbard v. Railroad, 173 Mo. l. c. 255; Chicago Herald Co. v. Bryan, 195 Mo. l. c. 587.]
But appellant contends that by reason of the last paragraph thereof, whereby appellant attempts to reserve the right to proceed against respondent, the instrument should be construed merely as a. covenant not to sue the Telephone Company and that therefore the instrument should not operate to release respondent.
There appears to be much conflict of authority upon the question and the modern tendency of the courts appears to be along the line of construing an instrument upon this subject to be a convenant not to sue wherever the language of the instrument will permit. A full list of the authorities cited by respective counsel will be found in the Reporter’s notes to this opinion, and- it is unnecessary to copy the citations herein. By a reading of the decisions on the subject it will be found difficult to formulate any definite and fixed rule of construction. Each case no doubt is more or less influnced by the language of the instrument held in review. A vast dissimilarity exists in the wording of the respective instruments.
We have carefully read and reread the instrument now under review and are unable to hold that it was ever intended to be merely a convenant not to sue without doing violence to the clear and unambiguous language found in said instrument.
It may have been the intention of the appellant to avoid the legal effect of a release of one joint tortfeasor, but the proper way to have avoided such a result would have been to have refrained from releasing one joint tortfeasor. The release of one joint tortfeasor stands
This court passed upon the legal principle here involved in the case of Dulaney v. Buffum, supra, 1. c. 15, wherein the court said: “When the plaintiffs acknowledge full satisfaction of all the injuries complained of in the petition, any effort to reserve a cause of action against those jointly liable, will not prevent the operation of the bar as to those not included in the release. ’ ’ The above case has not been overruled and we think it announces the rule applicable at the time this instrument was executed, which was, as above mentioned, before the Act of 1915.
For the reasons given in the case of Dulaney v. Buffum, supra, we hold that the judgment of the circuit court was proper and should be affirmed.
It is so ordered.