Chamberlain v. Mo.-Ark. Coach Lines

• Decision Date: 04 October 1945
• Docket Number: 39420
• Citation: 189 S.W.2d 538,354 Mo. 461
• Parties: Charles W. Chamberlain, Appellant, v. Mo.-Ark. Coach Lines, Inc., a Corporation
• Court: Missouri Supreme Court

189 S.W.2d 538

354 Mo. 461

Charles W. Chamberlain, Appellant, v. Mo.-Ark. Coach Lines, Inc., a Corporation

No. 39420

Supreme Court of Missouri

October 4, 1945

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Reversed and remanded.

Roger C. Slaughter and Frank O. Knight for appellant.

(1) The appellant's cause of action for the death of his wife and the claim upon which the present suit is brought are separate and distinct causes of action, and the court erred in sustaining respondent's amended demurrer and entering judgment thereon upon the theory that appellant had split his cause of action. Shaffer v. Rock Island Ry. Co., 300 Mo. 477, 254 S.W. 257; State ex rel. Thomas v Daues, 314 Mo. 13, 283 S.W. 51; Jordan v. St. Joseph Ry. L., H. & P. Co., 335 Mo. 319, 73 S.W.2d 205; Sec 3652, R.S. 1939; 1 C.J.S., p. 1184, sec. 63, p. 1332, sec. 104c; 16 Am. Jur. 105, sec. 155; Nanney v. I.H. Shell & Son, 138 S.W.2d 717; Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S.W. 851; Glasgow v. St. Joseph, 184 S.W.2d 412; Meyer v. Pevely Dairy Co., 333 Mo. 1109, 64 S.W.2d 696; Southern Ry. Co. v. King, 160 F. 332, 87 C.C.A. 284, affirmed 30 S.Ct. 594, 217 U.S. 524, 54 L.Ed. 868; Marcus v. Huguley, 37 S.W.2d 1100. (2) Joinder of causes of action is permissive, not mandatory, except as the court has jurisdiction to require consolidation, and the court erred in sustaining respondent's amended demurrer and entering judgment thereon, because the court thereby ruled, in effect, that appellant was compelled to join separate and independent causes of action in the same suit. Secs. 917, 1094, R.S. 1939; Flaherty's Admr. v. Taylor, 35 Mo. 447; Danciger v. Amer. Express Co., 192 Mo.App. 106, 179 S.W. 806; Wheless v. Serrano, 121 Mo.App. 17; Ormsby v. A.B.C. Fireproof Warehouse Co., 221 Mo.App. 779, 288 S.W. 959; 1 C.J.S., p. 1311, sec. 102, p. 1224, sec. 77; 1 Am. Jur., p. 456, sec. 66, p. 480, sec. 96; 34 C.J. 836, sec. 1246; Winters v. St. L. & S.F. Railroad Co., 124 Mo.App. 600, 101 S.W. 1116. (3) Judgment in the death case, being upon a different cause of action, does not bar the present suit, but is conclusive as to the issues actually tried between the parties in that suit, and the court erred in sustaining respondent's amended demurrer to the first count of appellant's amended petition upon the ground that said Count I does not state facts sufficient to constitute a cause of action in favor of appellant and against respondent. In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; State ex rel. Gott v. Fidelity & Dep. Co. of Maryland, 317 Mo. 1078, 298 S.W. 83; Case v. Sipes, 280 Mo. 110, 217 S.W. 306; 2 Freeman on Judgments (5 Ed.), p. 1429, sec. 677, sec. 688, p. 1450; Cromwell v. County of Sac., 94 U.S. 351, 24 L.Ed. 195; Restatement of the Law of Judgments, American Law Institute, sec. 68, p. 296; 2 Black on Judgments (2 Ed.), sec. 609. (4) The first count of appellant's amended petition states a cause of action against the respondent, based upon res adjudicata of the issues adjudicated in the death case, and the court erred in sustaining respondent's amended demurrer to such count and in entering judgment thereon. Shaffer v. Rock Island Ry. Co., 300 Mo. 477, 254 S.W. 257; In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; 16 Am. Jur., p. 105, sec. 155; 104 A.L.R. 1476, l.c. 1477; Jordan v. St. Joseph Ry., L., H. & P. Co., 335 Mo. 319, 73 S.W.2d 205; Vaughn's Admr. v. L. & N.R. Co., 179 S.W.2d 441; Keith v. Willers Truck Service, 64 S.D. 274, 266 N.W. 256, 104 A.L.R. 1471; Voorhees v. Chicago & A.R. Co., 208 Ill.App. 86; Gibson v. Solomon, 136 Ohio St. 101, 23 N.E.2d 996, 125 A.L.R. 903. (5) The second count of appellant's amended petition states a cause of action against the respondent based upon the acts of negligence therein specifically alleged, and the court erred in sustaining respondent's amended demurrer as to such count and in entering judgment thereupon. Chamberlain v. Mo.-Ark. Coach Lines, Inc., 351 Mo. 203, 173 S.W.2d 57.

Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping & Houts for respondent.

(1) The judgment should be affirmed if the demurrer to the petition was properly sustained on either ground. Givens v. Thompson, 110 Mo. 432, 443, 19 S.W. 833; Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32; Stone v. Cook, 179 Mo. 534, 78 S.W. 801; Bovard v. Jones, 142 S.W. 14; Fidelity Loan Securities Co. v. Moore, 280 Mo. 315, 217 S.W. 286. (2) The petition shows that the plaintiff split his action and is barred from maintaining the present suit by using and recovering a judgment for the death of his wife. Sec. 917, R.S. 1939; Tooker v. Mo. Power & Light Co., 336 Mo. 592, 80 S.W.2d 691; Sec. 3681, R.S. 1939; Hunter Land & Development Co. v. Caruthersville S. & H. Co., 223 Mo.App. 132, 9 S.W.2d 531; Adams v. Thompson, 178 S.W.2d 779; Shaffer v. C., R.I. & P. Ry. Co., 300 Mo. 477, 254 S.W. 257; Secs. 1015, 3652, 3653, 3654, R.S. 1939; DeGeofroy v. Terminal Ry. Co., 179 Mo. 698; Stigers v. St. Joseph, 166 S.W.2d 523; Young v. Telephone Co., 318 Mo. 1214, 3 S.W.2d 381; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; See v. See, 294 Mo. 495, 242 S.W. 949; Chamberlain v. Mo.-Ark. Coach Lines, Inc., 351 Mo. 203, 173 S.W.2d 57; Goodson v. National Masonic Accident Assn., 91 Mo.App. 339; Ruddle v. Horine, 34 Mo.App. 616; Ginnocchio v. Ill. Cen. R. Co., 264 Mo. 516, 175 S.W. 196.

OPINION

Hyde, P.J.

This is an action for $ 30,000.00 damages for personal injuries. A demurrer to plaintiff's petition was sustained and plaintiff has appealed from the judgment of dismissal.

The question for decision is whether plaintiff split his cause of action, so as to bar this suit, by separately suing and recovering for the wrongful death of his wife in the same collision, in Chamberlain v. Mo.-Ark. Coach Lines, Inc., 351 Mo. 203, 173 S.W.2d 57.

Plaintiff filed both suits on May 14, 1941. After affirmance of the judgment in the wrongful death case, plaintiff filed an amended petition herein in two counts. The first count stated the filing and adjudication of the wrongful death case and alleged that it was res judicata of the issues of actionable negligence of defendant and lack of contributory negligence of plaintiff. The second count was based only on the facts of the occurrence.

Plaintiff contends that his claim for damages for the death of his wife and his claim for damages for his personal injuries are separate and distinct causes of action, and that their joinder in the same suit is permissive and not mandatory. Defendant's position is that all claims for damages arising out of the same transaction or occurrence must be brought in one suit.

Defendant's position is too restricted. For example, several promissory notes may grow out of the same transaction, yet they constitute separate causes of action which can be separately maintained. [See 1 Am. Jur. 482, sec. 97.] Likewise, "the general rule is that an action for wrongful death is not precluded by a recovery in an action previously brought by the beneficiary for personal injuries to himself resulting from the same act of negligence which is alleged to have caused the death." [16 Am. Jur. 105, sec. 155; Annotations 104 A.L.R. 1477, 125 A.L.R. 909; 1 C.J.S. 1329, 1333, sec. 104.] So also, "where two persons are killed at the same time by the act of another, a recovery for the killing of one is not a bar to an action against the same defendant for the killing of the other, although the same person brings both actions as administrator, and the beneficiaries are the same in both actions." [25 C.J.S. 1150, sec. 49.] There are also other situations in which several causes of actions have been held to arise out of a single tort, such as assault and slander [Spillman v. Freymann (Mo. App.), 246 S.W. 976]; injuries to both wife and child by the same wrongful act [Edgar v. Citraro (Cal. App.), 297 P. 653; see also Bradley v. Andrews, 51 Vt. 525]; a husband's action for wrongful death of his wife and an action for loss of consortium and expenses up to the time of her death, resulting from the injuries which caused her death [Mageau v. Great Northern R. Co. (Minn.), 115 N.W. 651, 15 L.R.A. (N.S.) 511, 14 Ann. Cas. 551]; and a husband's action for his own injuries and an action for loss of his wife's consortium resulting from injuries to her caused by the same wrongful act. [Skoglund v. Minneapolis Street Ry. Co. (Minn.), 47 N.W. 1071, 11 L.R.A. 222.] Tennessee has held the other way on the converse of this latter situation in Johnston v. Southern Ry. Co., 299 S.W. 785, 55 A.L.R. 932. [See discussion in 27 Am. Jur. 119, sec. 517.]

The rule against splitting a cause of action applies to bringing separate suits for different elements of damage of the same cause of action and not to bringing separate suits on separate causes of action arising out of the same transaction or occurrence. "One may bring separate suits on separate causes of action even if joinder of the separate causes in one action is permissible, subject, however, to the power of the court to order consolidation". [1 Am. Jur. 480, sec 96; See also 1 C.J.S. 1306, sec. 102.] An example is cases of personal injury and damages to property caused by the same tort. "The rule followed in a majority of the states is that a single wrongful or negligent act or omission causing an injury to both the person and the property of the same individual, constitutes but one cause of action with separate items of damage; hence the cause of action cannot be split, and a recovery of a judgment for either item of damage may be pleaded in bar of an action to recover for the other item of damage." [Annotations 64 A.L.R. 663, 127 A.L.R. 1081.] ...