Brown v. The Missouri Pacific Railway Company
| Decision Date | 02 June 1902 |
| Citation | 70 S.W. 527,96 Mo.App. 164 |
| Parties | ALBERT S. BROWN, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--Hon. George F. Longan, Judge.
AFFIRMED.
Judgment affirmed.
M. L Clardy and Wm. S. Shirk, for appellant.
(1) It was error for the court below to permit plaintiff to introduce in evidence the pleadings and judgment in the case of Olivia A. Brown v. The Mo. Pac. Ry. Co., in support of plaintiff's plea of former adjudication, contained in his reply. (2) Albert S. Brown, sole plaintiff in the present case, was not only not a necessary party to the former suit of Olivia A. Brown, but he was not a real or even a proper party to that suit. He had no interest in the suit, nor in the judgment after its rendition. This will not, we understand, be denied by the respondent, but see: Sec. 546 R. S. 1899; Sec. 4349, R. S. 1899; Brown v Railroad, 23 Mo.App. 209. (3) In the eye of the law, he was not a party to his wife's case at all. A party to a case is a person who has a right to prosecute or defend it, to control it, to adduce and examine witnesses, and to appeal from the decision or judgment in the case. Albert S. Brown did not have a single one of these rights. If the judgment had been against his wife, he could not have appealed from it, without her consent, nor without her joining in the appeal. Henry v. Wood, 77 Mo. 277; Strong v. Insurance Co., 62 Mo. 289; Tyler v. Tyler, 78 Mo.App. 240; 1 Herne on Estop., sec. 135. Nor could he settle the wife's case without her consent. Smith v. Warden, 86 Mo. 382; Martin v. Robson, 65 Ill. 129. (4) Suppose the judgment in the former suit of the wife had been for the defendant; would it estop the husband from prosecuting this case? When a married woman is injured, without her fault, by the negligence of another, two causes of action arise against the party by whose negligence she is injured; the first, under our statute, in favor of the wife in her own right, to compensate her for her injuries and her mental and physical pain and suffering. Thompson v. Railroad, 135 Mo. 217; Smith v. City, 55 Mo. 456. The second, is an action in favor of the husband, to compensate him for the loss of the services of his wife, domestic or otherwise, and the loss of her society, and for the expenses of her sickness arising from her injuries. These are two separate and distinct causes of action. Thompson v. Railroad, 135 Mo. 217. These two actions could not be joined. Fuller v. Nangatank, 21 Conn. 557; Lewis v. Babcock, 18 Johns (N. Y.) 443. How then can the judgment in the case of the wife be held to be res judicata, in another separate and distinct action by the husband? In such case the plea "res inter alios acta" would obtain. (5) Even if it were true that Albert S. Brown was a party plaintiff to his wife's case, yet it must be conceded that he was only a party to the case, in the character of her husband, to enable her to prosecute her case. But in his own case, he is a party in an entirely different character--a party in his own right. The essential conditions under which the plea of res judicata becomes applicable, one identity of the thing demanded, identity of the cause of demand and of the parties in the character in which they are litigants. 1 Harman on Estop. and Res Jud., secs. 94, 102; Seggott v. Railroad, Law Rep., 1 Q. B. Div. p. 599, cited and approved in Wells on Res. Jud., p. 18, 19; Railway v. Jones, 40 P. 891; State ex rel. v. Branch, 134 Mo. 592. (6) The plaintiff saw fit to allege in his petition various negligent acts of defendant, which caused her injuries. Upon these allegations of negligence, issue was joined. And issue was also joined upon defendant's plea of contributory negligence. Not even a hint is contained in the petition, of any former adjudication of these matters. Having thus made the issues in the case, he can not abandon them by new matter set up in the replication. (7) Another good reason why the ruling of the lower court should not be allowed to stand, is this: since the trial of Mrs. Brown's case, defendant, as is shown by its offers of evidence, had discovered a mass of evidence not introduced in her case, showing Mrs. Brown to have been guilty of gross contributory negligence. The plea of contributory negligence on the wife's part is a good defense to the action of the husband.
Barnett & Barnett for respondent.
(1) The former judgment in the case of Olivia A. and Albert S. Brown, is conclusive as to the liability of the defendant. Exactly the same question was litigated in the former case as is involved in the present one. That question has been determined. The right of Albert S. Brown for loss of services, etc., is wholly derivative, and results from his relationship to Mrs. Brown. The court, therefore, did not err in permitting the introduction of the record of the former proceeding, and in excluding other evidence as to the liability of defendant, as this question was res judicata. Lindsay v. Danville, 46 Vt. 144; Anderson v. Railroad, 9 Daly. (N. Y.) 487; State ex rel. v. Branch, 134 Mo. 592; Young v. Byrd, 124 Mo. 590; Nave v. Adams, 107 Mo. 420; Stallcup v. Tacoma, 52 Am. St. Rep. 25; Harman v. Auditor, 123 Ill. 122; Gallaher v. Moundville, 34 W.Va. 730. (2) Under the authorities cited under the first point, it will be seen that it was immaterial whether Albert S. Brown was a necessary party, or even a proper party in the former suit; but appellant's counsel is in error when he asserts that the husband was not a proper party to that suit. Under our statutes he was a proper party. A married woman in this State may, in her own name, with or without her husband joining, sue in any of the courts having competent jurisdiction. Secs. 546 and 4335, R. S. 1899. (3) It is immaterial whether the parties plaintiff are identically the same in this cause as in the former one. It is the same defendant. State ex rel. v. Branch, 134 Mo. 604, and authorities there cited. (4) There is no merit in the plaintiff's contention that under the pleadings we are not entitled to introduce the former records. We do, in our reply, plead the former adjudication, and it will not do to say that pleading this for the first time in the reply, is an abandonment of the cause of action stated in the petition.
--The case which the defendant's appeal has brought before us is this: the plaintiff and wife in a joint action had recovered a final judgment against the defendant for personal injuries to the wife. The petition in that action in substance alleged: 1. That, plaintiff's wife, with her horse and buggy, was driving toward home in the city of Sedalia, along a public traveled street, running near to and parallel with defendant's railroad track. 2. That as she drove along said street, there was standing on said railroad track, a locomotive engine, which was not in motion, nor throwing off steam, but was apparently still and lifeless. 3. That when she got opposite said engine and only a few feet therefrom, the employees of the defendant, in charge of said engine, suddenly threw open the mud valves or cylinder cock in said engine, thereby throwing mud, steam and hot water upon her horse and making a loud and unusual noise, causing her horse to run away, throwing her out of her buggy and greatly injuring her. 4. That defendant's employees either saw Mrs. Brown at the time or could have seen her by ordinary care. The answer was a general denial and the plea of contributory negligence.
This suit is brought to recover damages that accrued to the plaintiff, the husband, by reason of the same occurrence. The allegation of the constitutive facts is the same in the one case as in the other. The answer in the present, as in the former case, was a general denial, coupled with a plea of contributory negligence. The reply pleaded that defendant was estopped by the judgment in the other case to deny liability in this.
At the trial the plaintiff was permitted, over the objections of defendant, to give in evidence, the pleadings and judgment in the action by the husband and wife against defendant, and this action of the court is assigned by the defendant as a ground of error for the reversal of the plaintiff's judgment. Under the provisions of our statute, section 546, 4335, Revised Statutes, 1899, the plaintiff, the husband, was properly joined with the wife as a party in their action against the defendant to recover the damages to which she was herself entitled to on account of the injuries occasioned by the negligence complained of. The damages claimed in both cases resulted from an injury to the wife. The decisive issues in both cases were whether or not the defendant was negligent and whether or not the wife, the injured party, was guilty of contributory negligence. These issues were found, as appears from the record in the joint action, in favor of the plaintiffs. The question therefore raised is, whether or not...
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