Boyd v. Atlantic Coast Line R. Co.

• Decision Date: 15 December 1914
• Citation: 218 F. 653
• Parties: BOYD v. ATLANTIC COAST LINE R. CO.
• Court: U.S. District Court — Southern District of Georgia

218 F. 653

BOYD v. ATLANTIC COAST LINE R. CO.

United States District Court, S.D. Georgia, Southwestern Division.

December 15, 1914

E. K Wilcox, of Valdosta, Ga., and A. B. Spence, of Waycross, Ga for plaintiff.

Bennet Twitty & Reese, of Brunswick, Ga., for defendant.

SPEER District Judge.

This case was brought in the city court of Waycross, Ga., and was removed to this court by the defendant railway company, a corporation and citizen of another state. The action was instituted on account of personal injuries alleged to have been inflicted on the plaintiff at a street crossing of the railway in Waycross. The injuries are alleged to be serious. The plaintiff is a physician, and it is claimed has been, as a result of his injuries, obliged to abandon his profession. The physical injuries are alleged to be painful and permanent, and damages in a large amount are claimed. At the time this action was brought in the state court, another action was there filed to recover for the destruction of the plaintiff's automobile by the same collision. The latter case went to trial, judgment was obtained for the plaintiff, and it has been paid by the defendant.

When this case to recover for the physical injuries of the plaintiff was called to-day, the railway company interposed a plea in bar. This alleged the institution, trial, and termination of the action for the destruction of plaintiff's automobile, and insists that, as the cause of action now set up originated from the same tort, it cannot now be maintained. The plaintiff has filed a motion to strike the plea as bad and insufficient in law, and this motion is now for determination.

In the argument the contending counsel have made it plain that their research among the authorities has been at once careful and industrious. It is mutually conceded that no controlling precedent has been afforded by the Supreme Court. A precedent from a national tribunal somewhat analogous is the Southern Railway v. King, 160 F. 335, 87 C.C.A. 284, decided for the Circuit Court of Appeals of the Fifth Circuit, by Circuit Judges Pardee and Shelby, and District Judge Burns; Judge Burns pronouncing the opinion. In that case the plaintiff and her husband were crossing the Southern Railway in Habersham county, Ga. The husband was killed by the train and the plaintiff was injured. The plaintiff, Mrs. King, filed her action in the state court for the injury to her person. She obtained a verdict for $1,000, and the judgment thereon was affirmed by the Supreme Court of the state. King v. Railway Co., 126 Ga. 794, 55 S.E. 965, 8 L.R.A. (N.S.) 544. She and her daughter also brought actions in the Circuit Court of the United States for the Northern District of Georgia. These were consolidated and verdicts rendered for the plaintiffs there, upon which, and the judgments thereon, assignments of error were presented for review. Judge Burns observed:

'The records are identical in both cases, with the exceptions that the railroad company filed in the trial court a plea in bar against the petition of Mrs. King upon the ground that plaintiff, having recovered in the state court for damages to person, is now estopped from maintaining the present action for the death of her husband. The contention is made that the injuries to the person of the wife, and the loss occasioned by the death of the husband, constitute a single cause of action, and that separate actions will not lie. This contention appears to be seriously made, but in the practice and procedure of the several states it would appear to be a legal novelty, without law or precedent.'

Thus the controversy in issue before the court was determined. The learned judge, obiter, continues:

'If it be conceded that the deceased husband was the 'personal property' of the plaintiff herein, then the contention would be supported by the decisions of every state court but one. Where injuries to the person and the physical property of the injured party grow out of a single tort, then, and in that event, the tort to the person and the property constitutes a single cause of action, and, as previously suggested, * * * should be presented in a single suit. This is the English view, and the holding is the same in all of the American courts, with one exception. The declaration that the husband is the 'personal property' of the wife has not yet received the sanction of the court or text-writer.'

After making these observations in passing, the plea was pronounced bad. In the American Annotated Cases, 1912D, page 258, after quoting the passage above referred to, the editor makes this comment:

'It would seem, however, that in the last-mentioned case the statement of the court as to the English view on the question at issue is not in accord with the decision of Brunsden v. Humphreys, 14 Q.B.D. 141, 146, 150, reversing 14 Q.B.D. 712. There the question was directly raised and passed on; Brett, M.R., and Bowen, L.J., holding in separate opinions that in case of accident caused by the negligent driving, in which both the goods and person of the plaintiff are injured, not merely one cause of action arises, but two causes of action, which are several and distinct. Lord Coleridge, C.J., dissented, however, from the majority opinion.'

The annotation continues:

'In other jurisdictions, the rule followed is that adopted in Brunsden v. Humphreys, 14 Q.B.D. 141, referred to in the preceding subdivision of this note, namely, that in such a case different rights give rise to separate causes of action, so that separate actions may be maintained, the one for injury to person and the other for injury to the property'-- citing not less than six American cases.

The reported case to which these notes are attached, Ochs v. Public Service R. Co., 81 N.J.Law, 661, 80 A. 495, 36 L.R.A. (N.S.) 240, Ann. Cas. 1912D, 255, makes the seventh American case from the volume last cited. It is, besides, entitled to great weight because of the high reputation of the New Jersey courts. There the plaintiff, while driving his carriage, was run down by the trolley car of defendant, and the horse, wagon, and person of the plaintiff were injured. The plaintiff recovered in an action for the injury to the horse and carriage, and thereafter brought suit for his personal injuries, in which a motion for nonsuit was made, and refused. The ground of the motion was that the former suit for property damage was a bar to the suit for personal injury. A judgment was rendered for the plaintiff, and appeal was taken to the Supreme Court, an intermediate appellate court, where the judgment below was reversed. The Supreme Court held, as contended for the railroad company here, that a single wrongful act can give rise to but one cause of action, although it may result in different injuries, or injury to different rights, as the cause of action grows out of the act itself, and not out of its results. Then the controversy was taken to the Court of Errors and Appeals, a paramount tribunal in that state. Of the ruling as announced by the Supreme Court, Justice Bergen, for the unanimous Court of Errors and Appeals, declared:

'The rule has the support of authorities entitled to serious consideration; but courts of equal learning and experience have held that there is a distinction to be made, and also that the resultant injury, and not the negligent act, is the ground of action. As the question is now before this court for the first time, we are at liberty to adopt the rule of law which appears to us to be most logical and reasonable, and we are of the opinion that there is a clear distinction between the two classes of injuries, and that it is the injury, and not alone the negligent act, which gives rise to the right of action, for a negligent act is not in itself actionable, and only becomes the basis of (an action) when it results in injury to another.'

The learned judge continues:

'Our Legislature has recognized a distinction between the right to recover for injuries to property and those to the person. This is indicated by its course of legislation, for it has created a different period of limitation within which suits may be brought to recover damages for the respective injuries.'

These like other grounds of differentiation cited also clearly appear in the relating statutory enactments in Georgia. See especially sections of the Code of 1910, 4422, 4423, 4424 4481, 4485, 4496, and 4497. Section 4496 provides that actions for injuries to personalty shall be brought within four years, and section 4497 that actions for injuries to the person shall be brought within two years, except for injuries to reputation, which shall be brought within one year. It is true that section 5521 of the same Code provides that all claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined, and the defendant may also set up his defense of claims against the plaintiff of a similar nature with the plaintiff's demand. This statute seems, however, merely permissive. Had the Legislature determined to make the joinder obligatory, the word 'shall,' rather than 'may,' would doubtless have been used. 'Expressio unius...