Thompson v. N. C. & St. L. Railway

SIMPSON, J. This is an action by the appellant against the appellee for damages on account of injuries claimed to have been received by the plaintiff as the result of a collision of the car on which plaintiff was with another car. The second count of the complaint alleges, in substance, that plaintiff was in the employ of the Eagle Iron Company, engaged in loading wood on one of the cars of the defendant, which cars were being propelled by a locomotive under the charge of John Lane, an agent or employe of defendant; that plaintiff was on said car by the invitation or request of said John Lane, [592] to be transported to Lane’s switch, and that his said car was run violently against other cars “by the negligence or carelessness of defendant, its agents or employes in the management or control of said car.” The fifth count alleges substantially the same facts, except that it avers that plaintiff was carried under some arrangement between said Eagle Iron Company and defendant to the point where -the car was loaded, and was then requested or invited on said car or train to be carried back to Lane’s switch; that, while'being so transported, the collision occurred; and that said injuries “were caused by the defendant, its agents or employes, wantonly, willfully, or intentionally propelling said car,” etc., “knowing that plaintiff was on said track, and would likely be injured.” The sixth count alleges that while plaintiff was on said car “at the request or invitation of defendant, its agents or employes, in violation of its duty to plaintiff, the defendant, its agent or employes, propelled said car wantonly, willfully, or intentionally,” etc: The first assignment of errors is to the action of the court in “sustaining defendant’s demurrer to plaintiff’s counts 2, 5, and 6 of complaint.” This assignment being general, embodying in one assignment errors claimed as to several rulings, if either of the grounds of demurrer to either of the counts is sustainable, the ruling of the court will be upheld. — Western Railway of Ala. v. Arnett, 137 Ala. 414, 425, 34 South. 997. The sixth count does not allege facts which show the relation of passenger sustained by the plaintiff. It does not state that the plaintiff was a passenger, nor that the car on which he was being carried was a passenger car; nor does it state that the employe of the defendant who invited or requested him to go on the car was acting within the scope of his employment. An invitation from an em [593] ploye not connected in any way, with the running of the train would not be sufficient to create the relation of passenger.- — 2 Hutchinson on Carriers, § 998, p. 1149, 1150, and note; Broslin v. K. C. M. & B. R. R. Co., 114 Ala. 398, 21 South. 475; Holmes, Pro. Ami, v. B. S. R. R. Co., 140 Ala. 208, 37 South. 338 Consequently the sixth count was subject to the eighth cause of demurrer, and the demurrer was properly sustained. The third plea filed by the defendant sets up the written release, therein copied, as a bar to the further prosecution of this suit. It will be noticed that said release was made after the commencement of this suit; that it is not made with this defendant; that it makes no allusion to this case; that it acknowledges the payment of $10 “in full payment for such pain I suffered and loss of time caused by same,” and releases only the Eagle Iron Company “from all damages and responsibility of the same.” It is true, as a general proposition, that a full release and satisfaction made to one tort-feasor is a release to both, and some courts have gone so far as to hold that, even though the person released was not, in fact, a tort-feasor, yet, if he was supposed to be so, the release will operate as if he really was a joint tort-feasor. But a distinction has been drawn between a technical release under seal and a release under our statute, which operates according to the intention of the parties. —Code 1896, §§ 1805, 1806; Code 1907, §§ 3973, 3974. In such case “it becomes a question of fact for the court or jury whether or not what the releasor has received was received in full satisfaction of his wrong; and, if it appears'that it was not so received, it is only pro tanto a bar to an action against the other wrongdoers.”- — 24 Am. & Eng. Ency. Law (2d Ed.) 305; Home Tel. Co. v. Fields, 150 Ala. 306, 43 South. 711, 713; Smith et al. v. Gayle, 58 Ala. 600, 606; Stegall v. Wright, 143 Ala. 204, [594] 38 South 844. Under this principle we cannot say, as a matter of law, that the release in evidence was intended as a release of all damages for the entire tort, so as to operate a release to the defendant in this case. Consequently the court erred in giving on request of the defendant the general charge as to plea No. 3. It is unnecessary to consider rulings on pleading. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., and Denson and Mayfield, JJ., concur.