Summary
In St. Paul Mercury Indemnity Co. v. Ritchie, 190 Miss. 8, 198 So. 741, it was recognized that the adjuster (on authority of the Saucier case) had no authority to extend the liability of the company.
Summary of this case from Old Colony Ins. v. Fagan ChevroletOpinion
No. 34280.
November 25, 1940. Suggestion of Error Overruled December 23, 1940.
1. INSURANCE.
Provision in employer's liability policy, which limited coverage to $500, that insured should not voluntarily assume any liability nor incur expense nor settle any claim except at insured's own cost meant that if insured assumed any liability for medical, surgical, hospital and ambulance services for an injured employee, the expense was at insured's own cost, subject to right of reimbursement under policy to the extent of $500.
2. INSURANCE.
"Duties and liabilities imposed by law" within statute providing that every person who shall examine into or adjust any loss for or on behalf of an insurance company shall be held to be the agent of the company as to all "duties and liabilities imposed by law" irrespective of policy conditions refers not to duties and liabilities that grow out of the contract of insurance but to the duties and liabilities imposed on insurance companies and their agents by law independent of the provisions of the insurance contract (Code 1930, sec. 5196).
3. INSURANCE.
The statute providing that every person who shall examine into or adjust any loss for or on behalf of any insurance company shall be held to be the agent of the company as to all "duties and liabilities imposed by law" could not be relied on as basis for assertion that claim adjuster had extended coverage of employer's liability policy, but provision of policy limiting liability of insurer to the sum of $500 for expenses incurred for medical, surgical, hospital and ambulance services was controlling (Code 1930, sec. 5196).
4. INSURANCE.
Under the general law of agency, no agents or representatives of insurance company other than those named in employer's liability policy had authority to modify or enlarge liability of company under the policy, in absence of proof of special authorization.
5. INSURANCE.
Obligating insurer to pay more than maximum liability specified in employer's liability policy was not within either the real or apparent scope of claim adjuster's authority.
6. EVIDENCE.
A recital in written release procured by claim adjuster that no statements, promises or representations other than those made therein had been made to injured employee by insured or her agent or by any one for either of them as a part of the consideration for the release or for purpose of inducement was contractual in nature and oral testimony was inadmissible to show that in fact other statements were made as an inducement.
7. EVIDENCE.
In action on employer's liability policy, testimony showing a contemporaneous oral promise to pay expenses in excess of obligation of policy and in addition to consideration expressed in written release signed by injured employee was improperly admitted because seeking to import into the policy a contractual obligation not stipulated for therein and in contradiction of written release.
8. COSTS.
Where amount properly due under employer's liability policy was tendered prior to institution of action on policy by and judgment for insured in excess of that amount was reversed on insurer's appeal, insured would be taxed with all costs.
ETHRIDGE, J., dissenting.
APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.
Wallace Greaves, of Gulfport, for appellant.
Contracts of insurance are contracts of indemnity resting upon the conditions specified in the contract embodying the agreement of the parties, and, where the provisions of the contract are clear and unambiguous, they are to be construed and applied like any other written contract in which the intention of the parties to it must be sought in the contract itself.
Miss. Mutual Ins. Co. v. Ingram, 34 Miss. 215; Am. Life Acc. Ins. Co. v. Nirdlinger, 113 Miss. 74, 73 So. 875, 4 A.L.R. 871; Continental Casualty Co. v. Hall, 118 Miss. 871, 80 So. 335; U.S. Fid. Guaranty Co. v. Parsons, 154 Miss. 587, 122 So. 544; Ga. Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73; New Amsterdam Cas. Co. v. Perryman, 162 Miss. 864, 140 So. 342; Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445, 145 So. 887; Merchants Co. v. Hartford Acc. Ind. Co. (Miss.), 188 So. 571; Liverpool, London Globe Ins. Co. v. Kearney, 180 U.S. 132, 45 L.Ed. 460.
It is the duty of the court to enforce unambiguous contracts as written, and not to make contracts for the parties and then enforce them as reformed.
Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445, 145 So. 885; Continental Cas. Co. v. Pierce, 170 Miss. 67, 154 So. 279; American Bankers' Ins. Co. v. White, 171 Miss. 677, 158 So. 346; Williams v. Batson (Miss.), 187 So. 236; World Fire Marine Ins. Co. v. King (Miss.), 191 So. 665.
A written contract cannot be changed, altered or modified by a subsequent oral agreement without an additional consideration supporting the new agreement.
Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Pritchard v. Hall, 175 Miss. 578, 167 So. 629.
The principles of the general law of agency are applicable to insurance companies and their agents.
Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; American Bankers' Ins. Co. v. Lee, 161 Miss. 85, 134 So. 836; Globe Mutual Life Ins. Co. v. Wolff, 95 U.S. 326, 24 L.Ed. 387; N.Y. Life Ins. Co. v. McCreary (8 C.C.A.), 60 F.2d 355.
The authority of an agent to bind his principal rests upon the powers conferred upon him by the principal.
Gulfport Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Cape County Savings Bank v. Gwin Lewis Grocery Co., 123 Miss. 443, 86 So. 275; Wynn v. Hoffman (Ala.), 82 So. 32; N Y Life Ins. Co. v. McCreary (8 C.C.A.), 60 F.2d 355; 2 C.J.S. 1188, sec. 92.
A person dealing with an agent must know the extent of his authority to act for his principal and cannot hold the principal on the agent's agreement beyond the scope of his authority.
Philip Gruner Lbr. Co. v. Algonquin Lbr. Co., 123 Miss. 157, 85 So. 191; Wellford Withers v. Arnold, 162 Miss. 786, 140 So. 220; Aetna Ins. Co. v. Singleton, 174 Miss. 556, 164 So. 13.
To construe a state statute (Section 5196, Code of 1930) creating a statutory agent to act authoritatively for an insurance company as to all of the duties and liabilities imposed by law upon it in virtue of a lawful written contract of insurance that clearly defines the risk it assumed for, and the limit of its obligation to, the insured so as to confer upon such agent the power to materially enlarge the risk and obligation thus assumed under the contract, without the consent of the insurer and without an additional consideration, impairs the obligation of the contract and violates the contract clause of the Constitution of the United States, Art. 1, Section 10, Clause 1.
Tucker Printing Co. v. Bd. of Sup'rs of Attala County, 171 Miss. 608, 158 So. 336; Pryor et al., Com'rs of Sabougla Drainage Dist., v. Goza, 172 Miss. 46, 159 So. 99; Hendrickson v. Apperson, 245 U.S. 105, 62 L.Ed. 178; Hartford Acc. Ind. Co. v. Delta Pine Land Co., 292 U.S. 143, 78 L.Ed. 1178, 98 A.L.R. 928; W.B. Worthen Co., Trustee, v. Kavanaugh, Trustee, 295 U.S. 56, 79 L.Ed. 1298; Brinkerhoff-Faris Trust Savings Co. v. Hill, 281 U.S. 673, 74 L.Ed. 1107.
To so construe Section 5196, denies the insurer the protection afforded by the due process clause of the Constitution of the United States, Amendment 14, Section 1.
Brinkerhoff-Faris Trust Savings Co. v. Hill, 281 U.S. 673, 74 L.Ed. 1107.
The right to make lawful contracts pertaining to business and to have them enforced in the courts as written, where the terms are not ambiguous, is a right granted by the law of the land, particularly Art. I, Sec. 10, Clause 1, and Amendment 14, Sec. 1 of the Constitution of the United States.
Jones v. Miss. Farms Co., 116 Miss. 295, 76 So. 880; Hartford Fire Ins. Co. v. Williams, 149 Miss. 123, 115 So. 199; Lochner v. N Y, 198 U.S. 45, 49 L.Ed. 937; Adkins v. Lyons, 261 U.S. 525, 67 L.Ed. 785; Advance-Rumley Thresher Co. v. Jackson, 287 U.S. 283, 77 L.Ed. 306; Hartford Acc. Ind. Co. v. Delta Pine Land Co., 292 U.S. 143, 78 L.Ed. 1178, 92 A.L.R. 928; Coppage v. Kansas, 236 U.S. 1, 59 L.Ed. 441.
The terms of a written contract cannot be varied by parol testimony, in the absence of fraud or mistake, and this is a rule of substantive law.
Kendrick v. Robertson, 145 Miss. 583, 11 So. 99; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; McArthur v. Fillingame, 184 Miss. 869, 186 So. 828; Taylor v. C.I.T. Corp. (Miss.), 191 So. 60.
As regards the obligation of the appellant to pay the medical, surgical, and hospital expenses incurred by the appellee for the treatment of the injured employee, the first sentence of Paragraph D of the insuring agreements in the contract obligates the appellant to reimburse the appellee for any expense incurred by her in providing first aid treatment, but no such expenses were incurred. The second sentence obligates the appellant to furnish, at its own cost and expense, through a physician or a hospital designated by it, such medical, surgical, hospital and ambulance service as is necessary for the treatment of the injuries sustained by the injured employee within the limit of $500, which the appellant is willing to pay, and it tendered this amount, plus interest, and some court costs.
White Morse, of Gulfport, for appellee.
Section 5196, Code 1930, renders an agreement made by an agent and adjuster of an insurance company the act of the company, regardless of contrary provisions in the policy. This is not now an open question in Mississippi.
Capital Paint Glass Co. v. Saint Paul Mercury Ind. Co., 180 Miss. 341; London, etc., Ins. Co. v. R.R., 97 Miss. 165; Germania Ins. Co. v. Bouldin, 100 Miss. 660; Agricultural Ins. Co. v. Anderson, 120 Miss. 278; Lamar Life Ins. Co. v. Kemp, 154 Miss. 890; Interstate Ins. Co. v. Ruble, 160 Miss. 206; Home Ins. Co. v. Thornhill, 165 Miss. 787; Reliance Ins. Co. v. Cassity, 173 Miss. 840; Aetna Ins. Co. v. Lester, 170 Miss. 353; Big Creek Drug Co. v. Ins. Co., 115 Miss. 333; Aetna Ins. Co. v. Smith, 117 Miss. 327; Home Ins. Co. v. Gibson, 72 Miss. 58; Travelers Fire Ins. Co. v. Price, 169 Miss. 541.
It is contended there was no consideration for the agreement to pay Mrs. Ritchie in that it was a subsequent promise. There was a very vital consideration in that the release of a claim for which appellant could have been required to pay $25,000 was secured. The signing of the release was the consideration. Max Moore parted with his "disputed claim," and the Insurance Company agreed to pay the $107 and to pay Mrs. Ritchie the expense. This promise was as much a part of the consideration as the $107.
We are not seeking to vary the release. The release recites the payment to Max Moore is to cover his injuries. The agreement we are suing on is a verbal promise to Mrs. Ritchie to pay the expense. True, Moore would not sign his release until Dowd agreed with Mrs. Ritchie, but that is no variance of an agreement between appellant and Max Moore.
The real consideration may always be shown, especially so, when the expressed consideration is inadequate.
Campbell v. Davis, 94 Miss. 164; Dodge v. Cutrer, 101 Miss. 844; L.R.A., 1918D, 1158; 22 C.J. 1157.
Appellant by the tender concedes the cause of action to the extent of the tender.
Sims v. Hardin, 132 Miss. 137, 62 C.J. 697.
By this tender and in their plea, appellant admits that when the release was signed there was a contemporaneous agreement to pay Mrs. Ritchie $500, thereby themselves saying the release was not all, or the only agreement. Appellant says there was another agreement, true, but we vary the terms of the release. Therefore, both sides say there was an agreement to pay Mrs. Ritchie, the only difference being the amount of this payment.
Argued orally by R.A. Wallace, for appellant, and by W.H. White, and S.E. Morse, for appellee.
There was issued and delivered to the appellee, who owned and operated a dairy farm in Harrison County, Mississippi, a certain indemnity insurance contract, dated March 19, 1938, known as a "Standard Employer's Liability Insurance Policy," by the terms of which the appellant obligated itself to indemnify and save harmless the appellee, as an employer, from any loss on account of personal injuries to her employees who were covered by the policy, where such injuries were caused by the negligence of the employer, and within the limits of the maximum liability therein stipulated; also to furnish at the cost and expense of the said insurer, through a physician or a hospital designated by it, such medical, surgical, hospital and ambulance service as might be necessary for the treatment of any injury sustained by any one employee of the assured, covered by the provisions of the policy, in any one accident, subject to an aggregate sum and limit of $500.
The insurance contract of indemnity further obligated the appellant to investigate accidents involving injuries to employees covered by the policy, and to defend suits for damages, even if groundless, brought on account of such injuries in the name and on behalf of the assured unless and until the insurance company should elect to effect a settlement thereof; also to pay all costs taxed against the assured in any legal proceeding, defended by the insurer according to the foregoing obligation, and to pay the interest accruing until the date of payment by the insurer of its share of the judgment rendered in connection therewith.
On May 12, 1938, while the insurance contract was in full force and effect, one M.E. Moore, the husband of a deceased sister of the appellee, was an employee covered by the terms of such contract, when he was severely injured while about the duties of his employment. At the time of the accident and injury, the appellee was out of the State, but under a previous arrangement which she had made with a local physician to render medical services to said M.E. Moore whenever needed, he was taken to this physician by another employee a day or two after the injury and placed in his charge for professional treatment at the physician's home, where he remained several weeks, at an expense of $871.25 for medical and surgical attention, and in a further sum of $704 for nurse hire.
The insurance contract also provided that "the assured shall not voluntarily assume any liability, nor incur any expenses (other than for immediate surgical and medical relief), nor settle any claim, except at the assured's own cost," but which provision we interpret to mean that if the assured should assume any liability for medical, surgical, hospital and ambulance service for an injured employee (other than for immediate surgical and medical relief), the entire expense would be at the assured's own cost, subject to the rights to be reimbursed under the contract of indemnity to the extent of $500 therefor.
While the injured employee was still undergoing treatment, the physician informed M.J. Dowd, claims adjuster of the appellant, as to the probate expense that would be entailed in connection therewith. Thereupon, the claims adjuster wrote a letter to the assured and to her husband on July 25, 1938, stating that he had been advised that the medical expense in the case would be approximately $1,200, and that "inasmuch as our policy limits coverage to the amount of $500, we wish to advise that we are handling the matter under full reservation of our policy contract and that any further investigation made by us is not to be construed as an admission of liability."
Thereupon, the investigation of the accident and injury continued, and, within a few days thereafter, the injured employee gave a written statement to a representative of the insurance company to the effect that on the day of the accident, he was working at a work bench which had a top surface of about two by twelve feet in dimension and was about "waist high" from the floor, that he had a steel bar about seven feet long and about one and one-half inches in diameter, weighing about one hundred pounds (a drive shaft out of an old truck), which he leaned up against the work bench with one end on the floor and the other end up in the air at such an angle that it leaned on the work table, and that as he went on with his work at the other end of the table where he was operating a vise, the steel bar fell on his foot, and in explaining the accident he said: "I guess I must have shook the table while I was working at the vise for the iron bar fell and the end of it struck me across the toes of my left foot." No one else was present at the time of the accident.
It was further shown that on September 29, 1938, after, the injured employee had returned to the dairy farm, the claims adjuster, M.J. Dowd, called there to see him, and, in the presence of Capt. L.P. Ritchie, husband of the assured, who was acting as her agent in the matter, obtained a written release signed by the injured employee, which recited, among other things, the following: "That for and in consideration of the sum of $20, this day cash in hand paid to me by L.P. Ritchie and Mrs. M.C. Ritchie, receipt of which sum is hereby acknowledged, and in consideration of the sum of $87 paid to me as wages, or salary, during the time that I was incapacitated because of injuries received as described below, the receipt of which sum is also acknowledged, I, the undersigned M.E. Moore, do hereby save, fully release, acquit and discharge L.P. Ritchie and Mrs. M.C. Ritchie, their heirs, representatives or assigns, from any and all liability for any and all claims for damages which I may now or hereafter have on account of personal injuries sustained by me on or about May 12, 1938, when I was employed by L.P. Ritchie and Mrs. M.C. Ritchie, and when I was engaged at my work at a work bench on the place of Mr. and Mrs. M.C. Ritchie in Harrison County in Mississippi." The instrument then proceeds to recite the facts as to how the accident occurred, as heretofore stated. It was then further stipulated therein, as follows:
"It is agreed and understood that this settlement shall operate as and shall be a complete accord, and satisfaction, and is a full acquittance in consideration of a full and complete settlement of any and all claims for damages of every kind, character or description, whether herein specifically described or not, which I may now or hereafter have on account of or in any way connected with the above-described accident.
"It is further agreed and understood that in making this settlement no statements, promises or representations, other than those made herein, have been made to me by L.P. Ritchie or by Mrs. M.C. Ritchie, or by anyone for either of them, as a part of the consideration for this release, or for the purpose of inducing me to execute the same."
At the trial, it was shown by the testimony on behalf of the appellee, over the objection of appellant, that contemporaneously with the execution of the said release, and as an inducement thereto, the claims adjuster made an oral agreement with the injured employee and with Capt. Ritchie, agent and representative of the assured, as aforesaid (and who says he approved and accepted the release on her behalf), to the effect that the appellant indemnity company would take care of the entire expense incurred for medical and surgical treatment and nurse hire hereinbefore mentioned, so that Mrs. Ritchie would have no expense in connection therewith; and that the injured employee, M.E. Moore, would not agree to sign the release until the claims adjuster had given him that assurance.
The insurance contract, which was filed as an exhibit to the declaration, also contained a provision to the following effect:
"12. No change in the Agreements, Conditions or Declarations of this Policy, either printed or written, shall be valid unless made by endorsement, signed by the President, a Vice-President, Secretary or an Assistant Secretary of the Company, nor shall notice to, or knowledge possessed by, any agent or any other person, be held to waive, alter or extend any of such Agreements, Conditions or Declarations. Upon the acceptance of this Policy the Assured agrees that its terms embody all agreements then existing between the Assured and the Company or any of its agents relating to the insurance described herein."
In this connection, it is insisted by the appellant that the terms of the written contract of indemnity cannot be changed, contradicted or modified by a subsequent oral agreement, without an additional consideration supporting the new agreement, citing the cases of Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Pritchard v. Hall, 175 Miss. 588, 167 So. 629. In response to this contention, the appellee relies upon Section 5196 of the Code of 1930, and also asserts that she was entitled to show the true consideration for the execution of the release without violating the rule prohibiting the contradiction of or adding anything to the terms of a valid written instrument. These respective contentions will be hereinafter discussed.
Appellee plead the oral promise and agreement of the claims adjuster to take care of the entire expense for medical and surgical treatment and nurse hire, as a part of the consideration for the execution of the written release. Appellant replied thereto by alleging the want of authority on the part of the claims adjuster to obligate the appellant to pay more than the $500 maximum liability stipulated for in the contract of indemnity in that behalf.
After the execution of the release in question, the appellee failed to pay this expense for which she had obligated herself to the physician, and with the result that she was sued by him and the nurse, and judgments were recovered against her by them, respectively, for the amounts alleged to be due each, and which judgments and costs she later paid, prior to the institution of the present suit. The appellant's attorneys appeared and defended the two suits filed against the appellee, and after the termination thereof tendered unto her, both before and after the institution of the present suit, that part of the judgments which it conceived itself to be obligated to pay in the sum of $500, plus interest and court costs in the said two suits, and requested an instruction in the case at bar limiting its liability to the amount of said tender; but the jury was instructed peremptorily to find for the appellee in the sum of $1,633.85 covering the whole amount of the two said judgments, interest and costs; and from which action of the court the appellant prosecuted this appeal.
To sustain the judgment appealed from, the appellee relies, as heretofore stated, first, upon Section 5196 of the Mississippi Code of 1930, which provides, among other things, that "every person . . . who shall examine into or adjust or aid in adjusting any loss for or on behalf of any insurance company, whether any of such acts shall be done at the instance, or request, or by the employment of the insurance company, or of, or by any broker or any other person, shall be held to be the agent of the company for which the act is done or the risk is taken as to all the duties and liabilities imposed by law, whatever conditions or stipulations may be contained in the policy or contract;" and, second, upon the right to show by parol the true consideration of the release in question.
The position first above mentioned would be well taken under the authority of the cases of Capital Paint Glass Company v. St. Paul Mercury Indemnity Company, 180 Miss. 341, 176 So. 729; Interstate Life Accident Insurance Company v. Ruble, 160 Miss. 206, 133 So. 223; Lamar Life Insurance Company v. Kemp, 154 Miss. 890, 124 So. 62; and Mutual Life Insurance Company v. Vaughan, 125 Miss. 369, 88 So. 11, except for the fact that those cases were, on Nov. 11, 1940, expressly overruled by the Court in the case of Carmelita Saucier v. Life Casualty Insurance Company of Tennessee, Miss., 189 Miss. 693, 198 So. 625, in so far as the same could in anywise tend to sustain the position of the appellee in regard to the application of said Section 5196, supra, to the facts of the present case. The Saucier case holds that: "The words 'as to all the duties and liabilities imposed by law' ex vi termini refer not to duties and liabilities that grow out of the contract of insurance, such duties and liabilities being determined by the provisions of the contract itself, but to duties and liabilities imposed on insurance companies and their agents by law outside and independent of the provisions of the contract of insurance.
The case chiefly relied upon by the appellee is that of Capital Paint Glass Company v. St. Paul Mercury Indemnity Company, supra, wherein the contract of indemnity there sued on was in the same language as that here involved, and wherein the adjusters agreed that any adjustment and settlement made by the indemnity company with the injured employee should exclude the sum of $806 which had been paid by the employer to the injured employee as his regular salary during his disability, pursuant to an agreement with the adjusters, and for which said sum the adjusters agreed that the indemnity company would reimburse the employer. A cash settlement was made with the employee, but the indemnity company refused to reimburse the employer for the wages as promised by the adjusters. In the course of its opinion in that case, the Court stated that [ 180 Miss. 341, 176 So. 731]: "The position of appellee [indemnity company] is that under the provisions of the policy, quoted above [including Section 12 thereof], they [the adjusters] had no authority whatever to bind it to reimburse appellant for the $806. That is true if those provisions of the policy are to control." The Court then proceeded to apply Section 5196, supra, and held that the provisions of the policy relied upon by the indemnity company were excluded from the policy by the statute. When we now eliminate the statute, under the authority of the Saucier case, supra, we must hold that the provision of the policy, which, in the case at bar, limits the liability of the insurer to the sum of $500 for expenses incurred for medical, surgical, hospital and ambulance services is controlling here, and we must therefore look to the general law of agency to determine whether or not the adjuster in the present case had authority, in making the settlement with the injured employee, and obtaining the written release, to make either a supplemental oral or other agreement on behalf of the indemnity company to pay any expenses for such services in excess of the $500 maximum limitation fixed by the contract of insurance. Under the general law of agency no agent or representative of the indemnity company had authority to modify or enlarge its liability under the policy other than those named in Section 12 thereof, hereinbefore quoted, in the absence of proof of special authorization so to do; and no such special authority was shown to have been conferred upon the claims adjuster. Nor was it within either the real or apparent scope of his authority as an adjuster to obligate the insurer to pay more than the maximum liability of $500 provided for in the indemnity contract to defray the expenses incurred for medical, surgical, hospital and ambulance services. Moreover, we are of the opinion that the provision contained in the written release to the effect "that no statements, promises or representations other than those made herein have been made to me by L.P. Ritchie or Mrs. M.C. Ritchie or by anyone for either of them, as a part of the consideration for this release, or for the purpose of inducing me to execute the same" is contractual in its nature, and that therefore no oral testimony was admissible to show that in truth and in fact other statements, promises or representations were made as an inducement thereto. The testimony admitted on behalf of appellee to show a contemporaneous oral promise to pay medical, surgical and hospital expenses, etc., in excess of the obligation of the indemnity contract and in addition to the consideration expressed in the written release signed by the injured employee, sought to import into the writing a contractual obligation not stipulated for therein, and in contradiction of the written agreement signed by the injured employee and accepted by Capt. Ritchie on behalf of the assured to the effect that there were no promises made to induce the execution of the release other than those stated therein. The objection to this testimony should have been sustained. Baum v. Lynn, 72 Miss. 932, 18 So. 428, 30 L.R.A. 441; Thompson v. Bryant, 75 Miss. 12, 21 So. 655; English v. New Orleans N.E.R. Co., 100 Miss. 575, 56 So. 665; and Dodge v. Cutrer, 101 Miss. 844, 58 So. 208. The essential elements of the release involved in the case of English v. New Orleans N.E.R. Co., supra, were the same as those contained in the one here in question, and in that case it was held that it was not competent for the injured employee to prove that as a part of the consideration for the release signed by him the railroad company made a contemporaneous oral agreement to give him "his regular work as soon as he sufficiently recovered," etc. The rule against the admissibility of the evidence referred to is likewise fully sustained by the other cases last above cited.
Therefore, it necessarily follows that the appellant was entitled to the peremptory instruction limiting its liability to the sum of $564.85, covering the said $500 liability, plus the interest and court costs accrued in connection with the two judgments recovered against appellee, hereinbefore mentioned, and as tendered by the appellant herein. Judgment is therefore rendered here accordingly, and the appellee is taxed with all costs, for the reason that the tender was made prior to the institution of the suit.
Reversed and judgment here accordingly.
DISSENTING OPINION.
For the reasons given in my dissent in Saucier v. Life Casualty Insurance Company, 189 Miss. 693, 198 So. 625, I dissent in this case. The Legislature, having re-enacted Section 5196 of the Code of 1930 after it had been construed by the Court, adopted that construction, and the Court after such re-enactment is without power to change its construction. See authorities in that dissenting opinion.