Cantrell v. Lusk

• Decision Date: 27 November 1916
• Docket Number: 18177
• Citation: 113 Miss. 137,73 So. 885
• Court: Mississippi Supreme Court
• Parties: CANTRELL v. LUSK et al

73 So. 885

113 Miss. 137

CANTRELL v. LUSK et al

No. 18177

Supreme Court of Mississippi

November 27, 1916

Division B

Suggestion of Error Overruled Feb. 19, 1917.

Appeal from Circuit Court, Monroe County; Claude Clayton, Judge.

On suggestion of error. Former opinion overruled, and judgment reversed and remanded.

For former opinion, see 72 So. 931.

ON SUGGESTION OF ERROR.

Judgment reversed.

W. H Clifton, for appellant.

As to the lands total and partial damages to which was and is sued for in both actions, we insist that even if the verdict had been a general verdict it would not, under the facts in this case, constitute an estoppel, or a bar as a plea of res judicata to a recovery for damages sued for in the second count of this suit. For in the first suit there were two counts, presenting two separate and distinct issues, and with a general verdict it would have been impossible to say on which of the two issues the jury had returned a verdict. A judgment then on a general verdict, it being uncertain as to what had been decided, could not be plead as res judicata to a second suit brought on the same cause of action and for the same subject-matter. Russell v. Place, 94 U.S. 606 24 L.Ed. 215; Sawyer v. Neilson, 43 N.E. 728.

In this case though the verdict is a special finding on the first count in the declaration of the former suit, adjudicating the damages done to the crops of 1911 and 1912 and since there has been no adjudication as to the damages done to the land set up in the second count of the declaration this matter is left open, was omitted and therefore the verdict and judgment cannot be set up as res judicata as to the second suit. To sustain the plea, the record must show an adjudication of the matter sought to be again litigated. Hart v. Bucard, 75 Miss. 653-4; Hart v. Bloomfield, 66 Miss. 100.

We submit that this contention is supported by our statutes Revised Code 1906, section 78. "Not error if verdict omit something. If on an issue concerning several things in one count, a verdict be found for only a part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted." I take it that this statute was necessary to bar a second suit for matter omitted by the verdict of the jury in the first suit, even where the omitted matter had been set out together with matter which the jury adjudicated, all being contained in one count.

If this be correct then surely the rule we invoke would apply in a case where the matter omitted by the jury is set out in a separate count. I know that there are cases which hold that such a verdict as the jury rendered in this case would be an adjudication of the omitted matter contained in a separate count in favor of the defendant. Notably the case of Mary Anna Manufacturing Co. v. Boone (Fla.), 45 So. 754. But in this case as well as others of like character which I have had access to, no reference is made in the opinion of the court to the statutes of the respective states; and I think with such a statute as we have the old rule would be the law as well as the better rule.

But suppose that Florida Rule be applied and we construe the verdict in this case to be an adjudication in favor of appellees as to the damage done to the twenty-three acres of land contained in the second count of the declaration of the first suit; how could an adjudication in favor of the defendants as to damages done the twenty-three acres of land contained in the second count of the declaration of the first suit; how could an adjudication in favor of the defendants as to damages done this land at that time of the bringing of the suit be res judicata to second suit brought for damages done to twenty-five acres of land more than a year afterwards when the proof in the instant case showed that there had been recurring overflows since the bringing of the first suit which damaged the land. Such a construction placed on the verdict but emphasises the fact that the cause of the action in the second suit is different from the cause of the action in the first suit as to the twenty-three acres of land; as well as two other acres of land embraced in the second suit and which was not in the first suit. The only element existing in both of these cases necessary to constitute and make the first suit res judicata of the second is the identity of parties; and I submit that both the learned counsel and court misconceived the legal effect of the record of this first suit introduced by us as evidence, not as an estoppel on defendant to deny their liability but as stare decisis. We call the court's attention to Judge WHITFIELD'S distinction between res judicata and stare decisis in its application to the facts in the case of Adams, Revenue Collector v. The Railroad Company, supra; and submit that it is equally applicable to the question involved here on the facts in this case.

Geo. T. Mitchell, for appellee.

The only assignments of error which this court can consider on this appeal are the fifth and sixth, based upon the action of the court in granting appellee's motion to exclude the evidence and in giving a peremptory instruction for appellee and in refusing to set aside the judgment and verdict and grant a new trial, and therefore the only question for this court to determine on his appeal is: Does the judgment rendered by the court below in the case of D. E. Cantrell v. St. Louis & San Francisco Railroad Co., constitute a bar to any further recovery on the same cause of action?

The court will notice that in the first case appellant sued for damage to the crops of 1911 and for the total destruction of nineteen acres of land and the partial destruction of four acres of land. In the suit from which the present appeal is prosecuted, he claimed damages for the crop of 1913 grown upon the same land and for the total destruction of nineteen acres of land and the partial destruction of six acres, all being the same land contained in the first suit...