173 Mo. 249 | Mo. | 1903
This is an action for damages, for personal injuries, sustained by the plaintiff on May 5, 1900, at the corner of Eleventh and Locust streets, in St. Louis, in consequence of a collision between the defendant’s car and a wagon of the American Express Company on which the plaintiff was riding, and by which company the plaintiff and the driver of the wagon were employed, their duties being to collect and deliver express packages. The negligence charged is running the car at a rapid and reckless rate of speed, and failure to keep a vigilant watch for persons or vehicles approaching the track. The answer is a general denial, a plea of contributory negligence, and a plea that the plaintiff had been paid in full for his injuries by the express company and had executed a release to said company, which also released the defendant. The reply is a general denial.
The facts developed on the trial are:
That the. plaintiff and one Henry Yollinger were employed by the express company, Yollinger as the driver, and the plaintiff as a helper, to collect and deliver express matter. At the time of the accident, the plaintiff was seated in the' rear .of the,' wagon. The wagon was going southwardly on Eleventh street, at a slow trot. When the driver, approached the defend
The defendant offered in evidence the release that plaintiff gave to the express company, and showed the payments to him by the company of the amount therein specified, which was as follows:
“Beceived of the American Express Company, forty-six dollars and sixty-one cents, and in consideration of the payment of said sum, I, Henry A. Hubbard, of St. Louis, State of Missouri, hereby remise, release and forever discharge the said American Express Company by reason of any matter, cause or thing whatever, whether the same arose upon contract or upon tort, and especially from all claim which I now have, or may hereafter have, arising in any manner whatever, either directly or indirectly, in whole or in part, from or on account of personal injuries sustained by me on or about May 5,1900, in collision of street car with wagon of said American Express Company, near the Qomer of Eleventh and Locust streets, in the city of St. Louis, State of Missouri. In testimony whereof, I have hereunto set my hand and seal this twenty-ninth day of June, A. D. 1900,” etc.
At the close of the whole case the defendant ashed a peremptory instruction to the jury to find for the defendant, which the court refused to give, and this is the principal error complained of. There was a verdict for one thousand dollars, and the defendant appealed. This court has jurisdiction because the constitutionality of the amendment allowing nine jurors to find a verdict is challenged. Of this, however, it is only necess'ary to say that the amendment has been declared constitutional by this court, in Gabbert v. Railroad, 171 Mo. 84.
I.
The defendant contends that the release of the express company releases this defendant also.
And, “if a claim is made against one and released, all who may be liable are discharged whether the one released was liable or not.” [Leddy v. Barney, 139 Mass. 394,] “The compromise of the asserted claim does not necessarily involve an admission on the part of him against whom the claim is asserted, that the claim is well founded. . . . But the other party should not be allowed to deny that he had any right to the money, the payment of which he had induced under pain of a prosecution of an action already commenced. He should not be permitted to assert with any beneficial result to himself, ‘I pursued the defendant falso claymore, and I took his money by way of settlement of a pending action in which I never could have recovered.’ ” [Tompkins v. Railroad, 66 Cal. 163.]
The plaintiff’s contention in this case that he could never have recovered against the express company, because he and the driver of the wagon were fellow-servants, can not avail him. . For his injuries were single. He was entitled to only a single compensation. He has received a compensation, satisfactory to himself from the express company and he released that company. He is not entitled to any other satisfaction, and the defendant is released.
The case of Leddy v. Barney, 139 Mass. 394, is very analogous. There the plaintiff was injured through the negligence of the superintendent under whom he was working. He compromised with their common master and released him and then sued the superintendent and it was held that the release of the one released the other.
Tortfeasors are jointly and separately liable whether they acted in concert or independently. [Newcomb v. Railroad, 169 Mo. 409.] But when the injured party voluntarily accepts a sum satisfactory to himself in compensation for the injury and releases the one so paying the same, all- the other tortfeasors who might .have been otherwise held liable are released also. It does not lie in the mouth of such a plaintiff to say he had no cause of action against the one who paid him for his injuries, for the law presumes that the one who paid committed the trespass and occasioned the whole injury. [Gilpatrick v. Hunter, 24 Me. 18; Seither v. Traction Co., supra; Tompkins v. Railroad, supra; Metz v. Soule; supra.]
It follows that the circuit court erred in refusing to give the peremptory instruction asked, and that the plaintiff is not entitled to any judgment against the defendant. The judgment of the circuit "court is therefore reversed.