Morgan v. St. Louis & San Francisco Railroad Company

• Decision Date: 04 April 1905
• Citation: 86 S.W. 590,111 Mo.App. 721
• Parties: MORGAN, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

86 S.W. 590

111 Mo.App. 721

MORGAN, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 4, 1905

Appeal from Howell Circuit Court.--Hon. Wm. N. Evans, Judge.

AFFIRMED.

STATEMENT.

About May 2, 1903, a fire, set by one of defendant's locomotive engines, spread and burned over two hundred acres of plaintiff's timber land, killing and injuring a lot of young growing trees, destroying the mulch on the land and consuming a part of plaintiff's rail fence. On the fourth day of the following June, plaintiff commenced suit before a justice of the peace and recovered judgment by default for twenty-five dollars, the value of the rails destroyed. The damage to his growing trees and the destruction of the mulch was not included in the complaint or judgment. The defendant company appealed from the judgment of the justice to the circuit court, but pending the appeal paid the judgment and at the same time settled with plaintiff for damages caused to his orchard by a subsequent fire set by one of defendant's locomotive engines. In February, 1904 plaintiff commenced a second suit before a justice of the peace to recover the damages to his forest trees and mulch caused by the fire of may, 1903. This cause was taken to the circuit court by appeal from the judgment of the justice. The defendant filed the following answer (omitting caption) in the circuit court:

"Defendant answering plaintiff's statement of his cause of action denies each and every allegation therein contained.

"Defendant further answering the said statement alleges that on the fourth day of June, 1903, plaintiff instituted a suit before J. N. Meredith, a justice of the peace of Goldsberry township, Howell county, Missouri, a court of competent jurisdiction in that behalf, a suit to recover damages on account of the fire of which plaintiff now complains and prosecuted said suit to final judgment before said justice said court then and there having jurisdiction in that behalf.

"That afterwards the defendant paid off and discharged said judgment and the same is fully paid and satisfied.

"That the present suit is to recover damages alleged to have been caused by the same fire and none other.

"Therefore defendant says that the plaintiff ought not to maintain or prosecute this suit and defendant pleads said prior suit and judgment in bar to this action."

Pluaintiff offered evidence tending to prove the allegation of his complaint. The defendant showed the rendition of the judgment of June fourth and its payment, and at the close of the evidence moved for a compulsory nonsuit, which was refused. The court withdrew from the consideration of the jury the item of damages caused by the destruction of the mulch on plaintiff's land and submitted the other issues to the jury, who returned a verdict for the plaintiff for seventy-five dollars. After taking the usual steps to preserve its exceptions, defendant appealed.

Judgment affirmed.

L. F. Parker, Orr & Luster for appellant.

That one substantive and complete cause of action, arising out of the same tort, cannot be divided into several suits, is too well settled to require citation of authorities, but see: Savings Bank v. Tracey, 141 Mo. 252, 42 S.W. 946; Trask v. Railroad, 2 Allen 331; Brannenburg v. Rld., 13 Ind. 103, 74 Am. Dec. 250; Steiglider v. Red., 38 Mo.App. 511; Trans. Co. v. Traube, 59 Mo. 355; Laine v. Francis, 15 Mo.App. 107; Funk v. Funk, 35 Mo.App. 251; Bendernagle v. Cocks, 19 Wend. (N. Y.) 207; Hite v. Long, 6 Rand, 457; 18 Am. Dec. 719; Oliver v. Holt, 11 Ala. 574, 46 Am. Dec. 228; Pettit v. Ins. Co., 69 Mo.App. 817; Darby v. Railroad, 156 Mo. 391, 57 S.W. 550; Powers v. Railroad, 158 Mo. 87, 57 S.W. 1090; Freeman on Judgments, sec. 241.

Livingston & Burroughs, O. L. Haydon and J. L. Bess for respondent.

(1) That a demand cannot be split and separate action maintained thereon is readily conceded. But this general rule like most others has well-defined exceptions. 1st--When the party is not aware of his means of redress or cause of action when he brings his suit. Second. When the debtor consents to a division of the cause of action. In either of these cases the general rule does not apply. This case comes clearly within both of these exceptions. It is clear that respondent was unavoidably ignorant of the full extent of the injuries done to his growing timber at the time he sued for the rails. Cunningham v. Casualty Co., 82 Mo.App. 607; Bank v. Tracy, 141 Mo. 252, 42 S.W. 946; Moran v. Plankington, 64 Mo. 337. (2) One substantive and complete cause of action arising out of the same tort can be divided into several suits by consent of the debtor. Edmonston v. Jones, 96 Mo.App. 91, 69 S.W. 741; The Fourth National Bank v. Noonan, 88 Mo. 372; Kavanaugh v. Shaughnessy, 41 Mo.App. 657; Gerhart v. Fout, 67 Mo.App. 423.

OPINION

BLAND, P. J. (after stating the facts).

The sole question presented by the record and argued by counsel in their briefs is, whether or not the plaintiff could split his demand and successfully prosecute two suits for damages caused by one and the same wrong. The rule against splitting a cause of action is aptly expressed by the Supreme Court in Savings Bank v. Tracey, 141 Mo. 252, 42 S.W. 946; as follows: "No rule of law is better settled than that a single cause of action can not be split in order that separate suits may be brought for the various parts of what constitute but one demand and the rule is founded upon the plainest and most substantial justice. It is an old maxim of the common law that 'No one ought to be twice vexed for one and the same cause.' It has always been regarded as a matter of concern to the State that litigation should have an end and that no citizen should be unnecessarily harassed with a multiplicity of suits. That such has been the law of this State for many years, the decisions of this court all attest." Respondent concedes the rule but to avoid its application to the facts in the case invokes two exceptions. First, that the plaintiff was not aware that his timber was damaged by the fire at the time he brought the first suit. Second, that the defendant consented to a division of the damages or action. The evidence shows that at the time the justice's judgment was paid off, a settlement was made and reduced to writing and signed by the defendant. It reads as follows:

"Trask, the twenty-seventh day of November, 1903. "This certifies that upon the St. Louis and San Francisco Railroad Co., paying to me through their agent at Mt. View, Mo., station on or before the twenty-seventh day of December, 1903, the sum of Ninety-five dollars ($ 95) I hereby agree to accept said sum of Ninety-five dollars ($ 95) in full settlement and satisfaction of all claims of whatever kind and description arising from or growing out of damage to any and all kinds of property up to and including the twenty-seventh day of November, 1903, except forest timber that may have been damaged May 2, 1903.

"In the presence of W. A. Mundell.

"G. W. MORGAN."

Defendant testified that the ninety-five dollars mentioned in the written instrument was made up of the judgment for twenty-five dollars and damages to his orchard caused by a fire subsequent to the one of May, 1903. The only evidence in respect to his knowledge of the damage to his young timber at the time he brought his first suit it found in the following questions and answers:

"Q. (By plaintiff's counsel). At the time you brought that suit (the first one) did you know of the damage done to your timber? A. No, sir, I did not.

"Q. (By defendant's counsel). And you say at the time (when the first suit was brought) you did not know the full damage that had been done to the timber? A. No, sir, from the fact that they are dying all the time."

The settlement paper and plaintiff's evidence in connection therewith, show three facts: First, that defendant paid the judgment of the justice which it might have done without plaintiff's consent. Second, that plaintiff and defendant came to terms as to the amount plaintiff's orchard had been damaged by a subsequent fire, and paid the damages agreed on (thus far the parties agreed to what is in the written instrument). Third, that the damage to the young timber was not embraced in the settlement and no agreement whatever was arrived at in regard to these damages, and that plaintiff reserved whatever right he had to assert his claim for these damages in the future. But there is nothing in the writing to indicate that defendant admitted that plaintiff had a right to sue for these damages or that it waived or agreed not to set up any defense it might have to a suit for said damages if one should be brought in the future. We see nothing in the instrument to indicate, much less to show, that it was agreed by and between plaintiff and...