Bell v. Jones, 3 Div. 973.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 136 So. 826,223 Ala. 497
• Parties: BELL v. JONES, JUDGE.
• Docket Number: 3 Div. 973.
• Decision Date: 25 June 1931

136 So. 826

223 Ala. 497

BELL
v.
JONES, JUDGE.

3 Div. 973.

Supreme Court of Alabama

June 25, 1931

Rehearing Denied Oct. 22, 1931.

Original petition by M. H. Bell for a writ of mandamus prayed to be directed to Hon. Walter B. Jones, as Judge of the Circuit Court of Montgomery County.

Writ awarded.

Rushton, Crenshaw & Rushton, of Montgomery, for petitioner.

Weil, Stakely & Cater, of Montgomery, for respondent.

THOMAS, J.

The petition is for mandamus to be directed to the circuit judge to scure the vacation of an order staying the proceeding in the circuit court pursuant to the plea in abatement filed.

The only question involved on the application alleged of importance to the profession is: Where there is a collision between two automobiles, can the party first filing his complaint against the other party, in a court of jurisdiction of the subject-matter and parties, prevent the second party from maintaining an action at law against the more diligent suitor? That is to say, can he who sues first compel the second or other party to maintain a passive position and await the termination of the action or first suit, leaving nothing to be tried on the second action save the amount of damages in case the party bringing the first suit fails in his action?

The facts are thus stated by petitioner: That one Bell, a resident of Montgomery county, driving his automobile on the Birmingham highway, came in collision with a truck owned by Baggett in Jefferson county; Baggett's truck being damaged, and Bell receiving injuries to his person and property. Baggett was doing business as a common carrier under the provisions of the Motor Carrier Act of 1927, pp. 309, 311, § 5, and had filed the bond required with the Public Service Commission, with the New York Indemnity Company as surety or indemnitor upon said bond. The act in question specifically provides that the bond must be given to secure any one of the public against actionable injury "proximately caused by negligence of such motor carrier, its servants or agents"; that the bond shall be "for the benefit of and subject to suit or action thereon by any person who shall sustain actionable injury or loss protected thereby, notwithstanding any provision in said bond to the contrary." Acts 1927, p. 311, 312, § 5.

Petitioner, Bell, a resident of Montgomery county, brought his action against the insurance carrier of Baggett, the New York Indemnity Company, which company is a foreign corporation qualified to do business in the [136 So. 827] state, and for aught that appears from this record, does business in Alabama, and is subject to suit in Montgomery county. The complaint by Bell claimed damages for property injury, physical pain, and mental suffering.

The indemnity company filed a plea setting up that Baggett Freight Line had previously instituted an action in the circuit court of Jefferson county against Bell, claiming damages for injury resulting from the collision (for which Bell is claiming damages in a suit filed in Montgomery county) caused by the negligence of Bell, and alleging that in the event a judgment is recovered by the plaintiff in the Jefferson county suit, such judgment will constitute res judicata of the issues involved in the suit filed in the circuit court of Montgomery county, and praying that Bell's suit be stayed pending the determination of the Jefferson county suit.

The lower court was of the opinion that the Montgomery county action should be stayed pending the trial of said prior suit in Jefferson county, and judgment was entered accordingly. Petitioner, Bell (plaintiff in the suit in Montgomery county), files the petition for writ of mandamus to compel the trial court to proceed to hear and try his suit against the New York Indemnity Company, the insurance carrier of Baggett at the ensuing call of the docket of the Montgomery county circuit court, irrespective of the outcome of the trial of the Jefferson county suit. Respondent, circuit judge, has filed his answer and consented that the cause be submitted on brief and argument.

The plea filed by the defendant in the circuit court of Montgomery county, setting up the pendency of the prior suit in Jefferson county, is in the nature of a plea in abatement. A definite rule has been established by this court by which a plea of this nature may be measured. In the case of Kaplan v. Coleman, 180 Ala. 267, 60 So. 885, 886, Mr. Justice Somerville, speaking for this court, says: "A plea in abatement because of another suit pending bears a strong analogy to a plea of res judicata, and a fair test of its sufficiency is whether a final judgment or decree in the prior suit would be conclusive between the parties and operate as a bar to the second."

This rule was again reaffirmed in Harris v. Town of Tarrant City, 221 Ala. 558, 559, 130 So. 83, 84, saying:

"The test is sometimes said to be whether a final judgment in the prior suit would be conclusive between the parties and operate as a bar to the second. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885; Foster v. Napier, 73 Ala. 595

"The principle is that the latter action is deemed unnecessary, and therefore the judgment in the prior suit would be conclusive and operate as a bar to the latter. Williams v. Gaston, 148 Ala. 214, 42 So. 552. Another test is whether the proof of one will sustain the other. Western Union Tel. Co. v. Crumpton, 138 Ala. 632, 36 So. 517; Cannon v. Brame, 45 Ala. 262."

It must be conceded, or rather it cannot be successfully maintained, that in the case of an automobile accident both parties may have a right of recovery; that negligence by both parties precludes a recovery; and the absence of negligence on the part of either party precludes a recovery. In the case of an automobile accident, it is likewise true that there can be a right of recovery only in the event one party is guilty of actionable negligence and the other party is not so negligent. If the court of Jefferson county may hold Bell responsible for the negligence and accident resulting, and the court of Montgomery county, on the same facts, hold Baggett responsible for the accident, this would be unfortunate. In the opinion of the writer, it may be that in a proper case and the same parties or privies, such a judgment of the court in Jefferson county, to the extent indicated, if presented by a proper plea of recoupment, the matters so presented or embraced in the issue on which the judgment thereon rested would be in a second action and trial res adjudicata-on the same issue sought and raised in the pending suit in the circuit court of Montgomery county.

However, in Crowson v. Cody, 215 Ala. 150, 110 So. 46, it is declared that a judgment to be res judicata must be rendered by a court of competent jurisdiction on the merits within the issues pleaded or which ought to have been litigated and applied to the status of the parties at the time of rendition and bind the parties or...