Opinion
No. 29609.
December 7, 1931.
1. RELEASE.
Release signed by plaintiff four days after injuries nearly causing death for $100, paid to her physician at time when she claimed to have been unconscious, held properly excluded from jury.
2. CONTRIBUTION. Torts.
Tort-feasors are jointly and severally liable, and are not entitled to contribution between themselves.
3. AUTOMOBILES.
One suing ambulance owner and driver for personal injuries could take judgment against owner alone.
APPEAL from circuit court of Coahoma county; HON.W.A. ALCORN, JR., Judge.
Sam. C. Cook, Roberson Cook and Greek P. Rice, all of Clarksdale, for appellant.
If the plaintiff had obtained satisfaction from either of the defendants (joint tortfeasors) for such damages as she may have received, she, on account thereof, has no longer any cause of action against the other tortfeasor.
Tanner v. Bowne, 9 Ann. Cas. 517.
When a technical release under seal or on satisfaction being made for the injury is given by the injured party to one of several joint wrongdoers, the courts have quite uniformly held this to release all, and to be a bar to an action against those not named in the release.
23 R.C.L. 405.
Where a party has once received full satisfaction and compensation for an injury inflicted, no matter from which one of the several tortfeasors, all are thereby released.
Bailey v. Delta Electric Light, Power Mfg. Co., 86 Miss. 634, 38 So. 354.
Where a party was injured in a collision with a train of a railroad company, and where a release and settlement is pleaded in bar of the action, and where the evidence is in conflict as to his capacity to make an agreement, the question is for the jury, and its decision is binding.
Davis v. Elzey, 126 Miss. 789, 88 So. 630; Jones v. A. V. Ry. Co., 72 Miss. 22, 16 So. 379; Alabama V. Ry. Co. v. Turnbull, 71 Miss. 1029, 16 So. 346.
Good faith on the part of a wrongdoer, by whose negligence a personal injury is caused, and a full understanding on the part of the person injured as to his rights, are indispensable to the validity of a release of a claim for the injury, and that the evidence as to all the surrounding conditions and the attitude of the contracting parties is admissible on the issue as to the validity of the release.
Whittington v. H.T. Cottam Co., 130 So. 745; 33 C.J. 1169.
A judgment must be supported by the verdict, decision or findings in the case or it will be irregular and erroneous, although not void or inoperative. The defect may be waived. Where the verdict is joint, the judgment must be joint, unless plaintiff remits the damages as to one of the defendants or dismisses the action as to him, or the court grants him a new trial. Where the verdict is several, the judgment must be several.
33 C.J. 1169.
The judgment must correspond with the material facts found by the verdict and embrace every matter properly forming a part of it.
Abbey v. Herrick, 27 Miss. 320.
Where the verdict is against all defendants as joint tortfeasors, and the judgment singles out one only as liable, the judgment is not supported by the verdict.
McMahon v. Hetchhetchy, 84 P. 350.
W.W. Venable and Maynard, Fitzgerald Venable, all of Clarksdale, for appellee.
The court was not in error in excluding the testimony relative to the release and in failing to submit this issue to the jury.
Jones v. Railroad Co., 72 Miss. 22; St. Louis S.F.R.R. Co. v. Ault, 101 Miss. 341; Hackler v. Natchez R.R. Co., 157 Miss. 432.
Judgments may be rendered for or against one or more of several plaintiffs or for or against one or more of several defendants; and in such cases the verdict shall be as the right may appear among the several parties to the action and shall state separately any amount allowed to any of the parties.
Section 605, Code 1930.
Such and so many verdicts and judgments — joint, separate and cross — as may be necessary to the adjustment of the rights of the several parties may be rendered in the same action.
Section 606, Code 1930.
In all cases, civil and criminal, a judgment or decree appealed from may be affirmed as to some of the appellants and be reserved as to others; and one of several appellants shall not be entitled to a judgment of reversal because of an error in the judgment or decree against another not affecting his rights in the case.
Section 3404, Code 1930.
Since enactment of these statutes it has been a uniform rule that on appeal one cannot complain of errors which only affect others.
Knowles v. Geo. C. Summey et al., 52 Miss. 377; Lynch v. Thompson, 61 Miss. 354.
Where a master and servant are sued jointly, a judgment may be rendered against the master alone.
Illinois Central R.R. Co. v. Clark, 85 Miss. 691; St. Louis, etc., R.R. Co. v. Sanderson, 54 So. 885.
Where there is joint and several liability, under section 3404, Code 1930, the one against whom judgment is rendered cannot be prejudiced by failure to render judgment against another even though the other is equally liable.
Barrett v. Carter, 69 Miss. 593; Y. M.V.R.R. Co. v. Hardy, 55 So. 967; William Bros. v. Bank of Blue Mt., 132 Miss. 178; Wilkinson v. Love, Supt. of Banks, 115 So. 707; Duncan v. Scott County, 64 Miss. 38; Hardware Co. v. Steele, 115 Miss. 663.
Argued orally by Lake Robinson and Greek P. Rice, for appellant, and by Webb Venable, for appellee.
An ambulance belonging to appellant, Thomas, was being driven in and about appellant's business by his servant upon and along a paved street in the town of Shelby about dark at a rate of speed of approximately forty-five miles an hour. In swerving around a wagon or wagons, the said ambulance struck appellee, who was attempting to cross said street at an intersection, and she was hurled a distance which an eyewitness estimates at thirty-five yards. She was picked up apparently dead. Her right leg was broken in two places, two ribs were broken, four teeth were knocked out, and numerous other serious injuries from head to foot were found to be present. She lingered for more than two months, and, although she has now recovered sufficiently to be out of bed, the testimony is undisputed that she is a physical wreck, and that she will never again be able to do any work of any consequence, that her earning capacity is substantially, if not completely, destroyed.
Four days after said injury, appellant, Thomas, having gained access to the bedside of the victim, procured her signature, as he says, to a full release for the sum of one hundred dollars. This money was paid, not to her, but to her physician, who says that she had told him to get what he could for her, although he admits, to use his own language, that at the time "she was pretty badly torn up," and in effect he further admits that he then thought she was going to die. Nevertheless he says that, this offer having been made, he accepted it. He admits that he turned no part of the money over to her, but used part of it for drugs, part for rent, and the remainder he does not know what he did with it. Appellee, the wounded woman, states that she was unconscious during all those times, and has no memory of any release nor for some days of anything else, whether of this or any other alleged happening. The circuit judge excluded said release from the jury, and his action in so doing is assigned as error.
That the circuit judge was not in error, but was eminently right, nothing more than a statement of the foregoing facts is necessary to show. Applying the common knowledge that belongs to all men, he knew, as all men know, that any such a release, for any such a pitiful sum, obtained within the said four days when the victim was suffering with such grievous injuries then so lately inflicted, was no contract; and that rationally in the very nature of the surroundings any pretense of such a contract was but a travesty and an unconscionable attempt to take an undue advantage of the sufferer. There was nothing here upon which just and reasonable men might differ, and therefore nothing to submit to the jury on such an utterly indefensible and unsustainable asserted release. And there was no ratification here, which has served so often in the past to save, and the only thing which could save, these unconscionable pretended settlements, as, for instance, in Whittington v. H.T. Cottam Co., 158 Miss. 847, 130 So. 745.
The remaining assignment of error is that the judgment was entered only against appellant, Thomas, and not against his servant, the driver of the ambulance, who was jointly sued with said appellant. Tort-feasors are jointly and severally liable, and they are not entitled to contribution between themselves. Appellee therefore could have sued appellant, Thomas, alone, and for the same reason may, as she did, take judgment alone against him. The doctrine in its practical application, in the matter of the entry of judgments, has been carried even further than is here involved, as may be seen in Illinois Cent. R. Co. v. Clarke, 85 Miss. 691, 38 So. 97, and in St. Louis S.F.R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L.R.A. (N.S.) 352.
Affirmed.