125 So. 541 | Miss. | 1930
The appellant, General Motors Acceptance Corporation, instituted this suit in the circuit court of the First district of Hinds county, against the appellees, New Orleans Great Northern Railroad Company and the Great Southern Lumber Company, seeking to recover from them as damages the balance due it on the purchase price of a Chevrolet automobile previously sold to one N.H. Hemby, and alleged to have been negligently destroyed by the appellees. The appellees filed a plea of the general issue, and a special plea setting up an alleged release of said railroad company from all liability for the destruction of said automobile. The appellant demurred to this special plea, and upon its demurrer being overruled, it declined to plead further, and thereupon a final judgment dismissing the suit was entered; and from this judgment this appeal is prosecuted.
The declaration alleged that the Auto Service Company sold to one N.H. Hemby a Chevrolet touring car for two hundred fifty-two dollars cash, and five hundred *126 four dollars payable in twelve monthly installments of forty-two dollars each, and that at the time of the sale a conditional sales contract was executed by and between the said Auto Service Company and the purchaser, Hemby, wherein the said Hemby agreed to pay the said amount of five hundred four dollars in monthly installments, and the title to the automobile was retained in the seller until the full payment of the said balance of the purchase price.
It was further alleged that the sales contract was, for a valuable consideration, transferred to the appellant, and that the said automobile was afterwards destroyed, and the said N.H. Hemby was killed, as a result of the joint negligence of the appellees; the detailed charges of negligence being set forth in the declaration.
It was further alleged that under the said conditional sales contract, which was made an exhibit to the declaration, the appellant had a lien on said automobile for the balance due thereon with an attorney's fee of seventy-five dollars as collection fees, and that having negligently destroyed the automobile which was the sole security for said indebtedness, the appellees had damaged the appellant to the extent of said indebtedness and were liable to it therefor.
The special plea filed by the appellees averred that at the time of the destruction of the automobile, the said N.H. Hemby was the owner thereof, subject only to a lien for the unpaid purchase price by reason of the sales contract executed by him; that the said Hemby had made no default in the payments due and owing and was then in possession of the automobile with the right to use and enjoy the same; that the said automobile was destroyed along with the use and possession thereof; and that the said railroad company settled with Ida Hemby for one thousand dollars and took from her a release under and by virtue of which the said railroad company was acquitted and discharged of all liability for damages to both person and property in consequence *127 of the said accident. A copy of the alleged release was filed as an exhibit to the plea, and is in the following words and figures, to-wit:
"Received of New Orleans Great Northern Railroad Company, the sum of one thousand dollars in full settlement and satisfaction of all claims and demand of every kind and character whatsoever accrued or hereafter to accrue to me on account of fatal injury to my husband, Needham Hemby, on July 25, 1927. Needham was driving a Chevrolet touring car, and while endeavoring to cross the railroad track, at crossing North of Georgetown depot, was struck by N.O.G.N. train No. 170 and received personal injuries, which resulted in his death at the Baptist Hospital, Jackson, Miss., a few days later.
"Needham was never married before, and as there were no children born to our union, I am his sole heir.
"And, for said consideration, I, for myself, my heirs, legal representatives and assigns, do hereby release, acquit, and forever discharge the New Orleans Great Northern Railroad Company, its successors and assigns, of and from all claims, demands, damages, judgments, causes of action, at law or in equity, and from any matter or thing whatsoever accrued or hereafter to accrue, including damage on account of personal injuries and all other damages to my person or property in consequence to the above-described occurrence.
"And for said consideration and for the parties herein mentioned, it is agreed that no suits of any kind or character shall be instituted for a recovery of any sort growing out of said injury or injuries.
"And, to secure said settlement, I hereby acknowledge that said sum of money was and is the sole consideration for this release; that no promises or representations have been made to me as an inducement to *128 make said settlement; and that said settlement satisfied me in full in all respects and is complete and final.
"Witness my signature, this the 13th day of August, A.D. 1927.
her "[Signed] IDA X HEMBY." name
This release is pleaded in bar of the action, and no question is raised as to the right of the lien creditor to maintain the suit in his own name, provided it is held that the liability for damages to the property upon which the lien attached was not discharged by the release executed by the widow of the deceased.
In the cases of Scott v. Southern Railroad Co. (Miss.), 47 So. 531, Kimball v. L. N.R.R. Co.,
Under section 721, Code of 1906, as amended by chapter 229, Laws of 1922, section 515, Hemingway's 1927 Code, among other heirs who are given the right to sue for and recover damages for the death of a person who has been killed by the negligent act or omission of another, the widow of such deceased person is expressly given the right to maintain the suit and recover such damages, and in such case only one suit may be brought for the death, and the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. By this statute it is further provided that the damages recovered under the provisions thereof shall not be subject to the payment of the debts or liabilities of the deceased, and that all damages recovered for the injury and death of a married man who has no children shall go to his wife. In the case at bar the deceased left no children surviving him, and therefore, by virtue of the provisions of this statute, the widow of the deceased had the right to sue for and recover the damages for the death of her husband, or to compromise and settle her claim for such *130 damages, and was entitled to receive such damages free of all liability for the payment of the debts or obligations of the deceased, and the release executed by her to the appellee railroad company discharged both the appellees from all further liability for the death of her husband. It is by virtue of this statute that the named heirs are given the right to maintain a suit in their own names for the damages resulting from death caused by the negligent act of another, and that such heirs are entitled to receive the recovery for such death free of all liability for the debts of the deceased.
Section 1651, Code of 1906, section 1450, Hemingway's 1927 Code, provides that, "if a husband die intestate, and do not leave children or descendants of children, his widow shall be entitled to his entire estate, real and personal, in fee-simple, after payment of his debts," and in the case of Maxwell, Adm'r, v. Craft,
There is no statute authorizing the heirs or the distributees of the decedent to maintain a suit to recover damages for injury to, or destruction of, personal property of the decedent resulting from the tortious act of another during the lifetime of the decedent and for which such decedent might have maintained a suit if he had lived; and in the case of Jones v. Clemmer Son, *131
In the case of McVay v. Castenara,
Reversed and remanded.