Bush v. Stephens

• Decision Date: 09 July 1917
• Docket Number: 102
• Citation: 197 S.W. 1157,131 Ark. 133
• Parties: BUSH, RECEIVER ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, v. STEPHENS
• Court: Arkansas Supreme Court

197 S.W. 1157

131 Ark. 133

BUSH, RECEIVER ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, v. STEPHENS

No. 102

Supreme Court of Arkansas

July 9, 1917

Appeal from Craighead Circuit Court, Jonesboro District; W. J Driver, Judge; modified and affirmed.

Judgment affirmed.

Troy Pace and Gordon Frierson, for appellant.

1. The court erred in instructing the jury to find for the plaintiff. The embankment was permanent. It was constructed more than thirty-two years ago. This suit is therefore brought on the theory of a continuing or recurring tort. The original case is reported in 72 Ark. 127. Cases of this character are in principle based upon the question of negligence in maintenance, and the cause of action arises not upon the construction of the embankment but upon the occurrence of the damage. The question of the existence of identical conditions at the time of the former suit and the later one is of the very essence, and the rule as to res judicata is therefore necessarily different. 23 Cyc. 1188. The burden was on plaintiff to "show the continuance of the same conditions." See 94 U.S. 606; Black on Judgments, 951, § 624; 55 Ark. 292; 66 Id. 344; 108 Id. 574-8; Black on Judgments, 940, 936, etc.

2. The court erred in refusing to give instruction No. 1, asked by defendant. The suit is barred by limitation. 62 Ark. 360; 35 Id. 622; 86 Id. 406.

Basil Baker and Horace Sloan, for appellee.

1. There is no estoppel by former judgment. 2 Black on Judgments, § 742, p. 1118. This was a continuing trespass or tort.

2. The suit is not barred. 72 Ark. 127. The wrong is a continuing one. 52 Id. 240; 56 Id. 612; 57 Id. 387; 72 Id. 127; 66 Id. 271; 76 Id. 542; 80 Id. 235; 82 Id 387, 392.

3. The court erred in striking out of the complaint against the receiver all items of damage alleged to have accrued prior to the time of his appointment. 4 Fed. Stat. Am. 387, § 3; 22 S.W. 50; 38 A. 690.

WOOD J. MCCULLOCH, C. J., on rehearing. WOOD, J., dissenting. HART, J., concurs in the dissent.

OPINION

WOOD, J.

These suits were instituted to recover damages alleged to have been suffered by the plaintiff during the years 1913, 1914, and 1915 because of overflow of lands of plaintiff.

It was alleged that an opening in the railroad embankment a quarter of a mile north of plaintiff's land was inadequate to allow the passage, under the railroad tracks, of water which naturally accumulated at that point, with the result that such surplus quantity of water was deflected and caused to run southward along the west bank of the railroad to a point where it overflowed into another water course, thereby swelling the volume of water in such second watercourse; that in the original construction of the railroad embankment, the channel of this second watercourse was changed so as to cause an abrupt curve in the same, which caused the water to pour out over the east bank of the channel and thereby overflow plaintiff's land, causing damage by reason of the destruction of her crops in the years 1913, 1914 and 1915 in the aggregate sum of $ 969.50, and by making ditches, holes and gullies therein and washing off the top soil, to her damage in the sum of $ 1,800.00. Wherefore, she prayed judgment for the sum of $ 2,769.50.

A suit was filed against the railway company, and also one against the receiver, the complaints contained the same allegations with the exceptions of the allegations concerning the receivership.

The answers denied all the material allegations of the complaints as to negligence. The cases were consolidated and tried together. The jury returned a verdict assessing amounts of damages accruing for the years 1913, 1914 and 1915.

Appellant concedes in its abstract that there was ample evidence upon which the jury might have found either for the plaintiff or the defendant upon the sole question as to whether or not the overflow of plaintiff's property was caused by the negligence of the defendant at a point where the second or southern watercourse passes under the railroad track.

There was no evidence introduced on the trial concerning the condition or capacity of the northern channel, that is, the channel which it is alleged in plaintiff's complaint was diverted through the negligence of the company into the southern channel.

At the close of the evidence the plaintiff's attorney offered in evidence the pleadings and judgment in a case between the plaintiff and the defendant railway company which was tried in 1913. The appellants objected, whereupon the following stipulation of counsel was entered into: "It is hereby stipulated by and between the respective attorneys for the parties hereto, that since the trial in 1913, pleadings and judgment in which suit have been admitted in evidence, that the trestle mentioned in the complaint as a quarter of a mile north of plaintiff's land has been altered and changed in the following respects, towit: By the construction of an addition thereto, consisting of a two-panel trestle or bridge, with a waterway area of seventy-two square feet."

The court directed the jury to return a verdict in favor of the plaintiff, on the ground of res adjudicata, and this raises the first question for our consideration.

While the appellee alleges in both the suit of 1913 and in the present suit that about a quarter of a mile north of her land there was a natural channel or watercourse sufficient in size to carry all the water naturally accumulating therein, which the appellant had obstructed and filled up by not leaving a sufficient opening in its embankment across said stream to allow the water to pass through, thereby diverting the same into another and larger channel about two hundred yards west of appellee's land, she also alleges in these complaints that this second channel was sufficient to carry off all the water which naturally accumulated therein, but that appellant, by the negligent and careless construction of its railway over this channel, so changed the watercourse as to make an abrupt curve therein, which curve caused the water therein, when it was high, to overflow appellant's land, which resulted in her damage, and for which she sued.

The allegations show that the gravamen of appellee's charge in both complaints is that appellant, by the negligent construction of its railroad made an abrupt change or curve in a watercourse which ran about two hundred yards from her land, which abrupt curve and change resulted in her damage. The allegations plainly show that but for this change in the watercourse near her land she would not have been damaged. In other words, the proximate cause of her damage, as shown by the pleadings in both lawsuits, was the negligent construction of the railroad over the watercourse near her land, which changed its course and caused the land to overflow.

Now the appellants contend that the plea of res adjudicata can not avail because, while the allegations of negligence in the two lawsuits remain the same, the conditions on the last lawsuit were not the same as they were on the first trial, because of the fact, as shown by the stipulation, that since the trial in 1913 the trestle mentioned in the complaint as being a quarter of a mile north of appellee's land had been changed by the addition thereto of a two-panel trestle or bridge with a waterway area of seventy-two square feet. We must take it from the statement in appellant's abstract, and its failure to set forth the evidence in favor of the appellee on the issue of negligence, that the testimony was ample to show that, notwithstanding the above change in the trestle a quarter of a mile north of appellee's land, the undisputed evidence showed that the lands of appellee still overflowed as they did before this change. Therefore, we must assume that the court, in directing the jury to return a verdict, found that the undisputed evidence showed that the conditions, so far as they affected appellee's cause of action and right to recover damages on account of appellant's negligence, were the same on the trial of the last lawsuit as they were in the first.

If the change by the enlargement of the upper trestle did not prevent or tend to prevent the overflow and damage to appellee's land, caused by the negligent construction of the embankment over the watercourse near her land, and if this curve or change in the watercourse two hundred yards west of appellee's land, caused by the negligence of appellant, would necessarily result in damage to her, notwithstanding the change in the upper trestle, then there was no change in the conditions as to the negligence which was the proximate cause of her damage, between the first lawsuit and the last. In other words, the existing conditions of negligence which were the proximate cause of her injury were shown to be the same in the last lawsuit as they were in the first. This is the test.

Mr. Black, in his work on judgments, announces the correct doctrine when he says (volume 2, section 742): "According to the generally accepted doctrine, in an action for the continuance of a trespass or nuisance, a former proceeding upon the same cause of action and between the same parties, or those under whom they claim, wherein judgment was recovered by the plaintiff, is conclusive of the rights of the parties; the defendant is estopped to deny the existence or character of the nuisance or the plaintiff's right to recover, and the latter need only prove that the nuisance remains in the same condition as before, or in a more or less damaging condition."

[131 Ark. 138] And at page 936, section 614, he says: "The doctrine of res judicata does not rest upon the fact that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and...