Coy v. St. Louis & S. F. R. Co.

• Decision Date: 31 December 1914
• Docket Number: No. 1403.,1403.
• Citation: 186 Mo. App. 408,172 S.W. 446
• Parties: COY v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

172 S.W. 446

186 Mo. A. 408

COY v. ST. LOUIS & S. F. R. CO.

No. 1403.

Springfield Court of Appeals. Missouri.

December 31, 1914.

Rehearing Denied January 19, 1915.

1. ACTION (§ 53) — SPLITTING ACTIONS — TORTS.

A single wrongful act gives rise to only one cause of action, on which there can be but one recovery, regardless of the number of items of damages, and the cause of action cannot be split up and various suits brought for the items.

2. JUDGMENT (§ 815) — JUDGMENTS OF SISTER STATES — ADMISSIBILITY.

The pleadings and judgment in an action in a court of a sister state, duly authenticated under the acts of Congress, are admissible in view of Const. U. S. art. 4, § 1, declaring that full faith and credit shall be given in every state to the records and judicial proceedings of every other state.

3. COURTS (§ 7) — SUBJECT OF ACTION — TRANSITORY ACTIONS.

An action for injuries to a shipper accompanying a shipment and an action for damages to the shipment caused by the same negligent handling of the cars are common-law actions for negligence, and are transitory, and may be brought wherever the carrier may be found and jurisdiction over it obtained.

4. NEGLIGENCE (§ 103) — ACTIONS — WHAT LAW GOVERNS.

The law of the place where the negligent act complained of in a transitory common-law action was committed governs, and, where suit is brought in a state other than where the injury happened, the interpretation of the common law obtaining in the state where the cause of action occurred will govern.

5. EVIDENCE (§ 35) — JUDICIAL NOTICE — COMMON LAW.

The court will take judicial notice, in view of the legislation of Congress on the subject, in the absence of proof to the contrary, that the common law is in force in Arkansas.

6. EVIDENCE (§ 80) — PRESUMPTIONS — COMMON LAW.

It is only in those states which were never subject to the common law that the courts will not indulge the presumption that the common law is not in force.

7. CARRIERS (§§ 109, 234) — JUDGMENT (§ 821) — NEGLIGENCE — LIABILITY — SPLITTING ACTION.

Where the negligence of a carrier causing injury to a shipper accompanying his shipment and to the shipment occurred in Missouri, the law of Missouri governs the rights and liabilities of the parties, and the shipper, obtaining a judgment in a sister state for the personal injuries, may not split his cause of action and maintain an action in Missouri for the damages to the shipment.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by J. L. Coy against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. F. Evans, of St. Louis, and Moses Whybark and A. P. Stewart, both of Cape Girardeau, for appellant. R. J. Smith, of Kennett, and J. L. Fort, of Bloomfield, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment for $492 as damages sustained by him occasioned by the alleged negligence of the defendant in handling two cars of watermelons while being switched by defendant in its yards at Chaffee, Mo., on August 17, 1912. The facts are that plaintiff was shipping two car loads of watermelons over defendant's railroad, and was accompanying them in person, and while the cars were being switched they were run against some other cars with such force as to break, bruise, and greatly damage the watermelons. Plaintiff also sustained injuries to his person in the collision.

It appears that plaintiff, prior to the commencement of this suit, instituted a suit against this defendant in the circuit court of Crawford county, Ark., wherein he recovered a judgment for $18,000 for his physical injuries. The injuries to his person, for which he recovered the judgment in Arkansas, and the damage to his melons — the subject of this action — were occasioned by the same alleged negligent and wrongful act of the defendant in kicking its cars together at the time and place mentioned. The plaintiff on cross-examination admitted he had recovered the judgment in Arkansas for his personal injuries caused by this collision, and the defendant introduced in evidence a copy of the pleadings and the judgment rendered in the Arkansas case.

If the judgment for $18,000 had been rendered in Missouri, there is no doubt that it would be a bar to the present action, because a single wrongful act gives rise to only one cause of action, on which there can be but one recovery, regardless of the numerous items of damages that may have been suffered; the damages resulting from one and the same tort must be assessed and recovered in one action; the cause of action cannot be split up and various suits brought for the different items of damage, where such items grew out of one wrong. Steiglider v. Railway Co., 38 Mo. App. 511; Wheeler Savings Bank v. Tracey, 141 Mo. loc. cit. 259, 42 S. W. 946, 64 Am. St. Rep. 505; Mateer v. Railway Co., 105 Mo. 320, 355, 16 S. W. 839; Stickford v. City of St. Louis, 75 Mo. 309, approving Stickford v. City of St. Louis, 7 Mo. App. 217; Puckett v. Railway Co., 25 Mo. App. 650; Cook v. Globe Printing Co., 227 Mo. loc. cit. 524, 127 S. W. 332; Union Railroad & Transportation Co. v. Traube, 59 Mo. loc. cit. 362; Puckett v. National Annuity Ass'n, 134 Mo. App. loc. cit. 506, 114 S. W. 1039; Spratt v. Early, 199 Mo. loc. cit. 501, 97 S. W. 925; and Bircher v. Boemler, 204 Mo. loc. cit. 562, 103 S. W. 40. The reason given in these cases for this rule is that "one shall not be twice vexed for one and the same cause." The only exception to this rule as appears in these decisions is that found in the case of Wheeler Savings Bank v. Tracey, 141 Mo. loc. cit. 259, 42 S. W. 946, 64 Am. St. Rep. 505, which is that unavoidable ignorance of the full extent of the wrongs received or injuries will relax the rule. In the case under consideration the plaintiff was fully advised of the injury (not only to himself for which he procured a judgment in Arkansas) sued for herein when he instituted and recovered his judgment for this tort in Arkansas.

The pleadings and judgment in the Arkansas suit were properly introduced in evidence by the defendant duly authenticated, under the acts of Congress. It was said in the case of Western Assurance Co. v. Walden, 238 Mo. loc. cit. 61, 62, 141 S. W. 595:

"The record in this case discloses the facts that said judgment and transcript were duly authenticated according to the act of Congress governing such matters; also shows that the circuit court of Cook county, Ill., is a court of record, and has a judge presiding, a clerk attending upon the same, as well as a seal of court. Upon that state of facts the law presumes that such a court is a court of general jurisdiction, and that it had jurisdiction of the subject-matter of the action pending therein, and of the parties thereto; and, in the absence of proof to the contrary, such presumption is conclusive. [Cases cited.]

"Section 1 of article 4 of the Constitution of the United States provides that `full faith and credit shall be given in every state to the public acts, records and judicial proceedings of every other state.' Full faith and credit cannot be given to judgments and judicial proceedings of another state, by the courts of this, except where those matters are called to the court's attention, and that can only be done in such a case by offering or introducing them in evidence."

Respondent, however, contends that splitting a cause of action is a common-law, not a statutory, defense, relying upon the case of Clark v. Barnes, 58 Mo. App. 667, holding that the courts of Missouri cannot presume that the common law is in force in Arkansas, and that in those cases in which our courts will not presume that the common law is in force in a sister state they will, in the absence of pleading or proof, presume that the statute law of that state is like the statute law of this, citing McManus v. Railroad, 118 Mo. App. 152, 94 S. W. 743. Respondent argues from this that, as the rule against splitting causes of action is a defense under the common law, and is not a statutory rule in Missouri, there being a failure on the part of appellant to prove that Arkansas is a common-law state, it could not rely on the rule against splitting, as stated, under the common-law, and that, as there is no statute in Missouri against splitting causes of action, our courts cannot hold, in the absence of proof, that there is a statute in Arkansas which prevents splitting.

The action in the circuit court of Crawford county, Ark., for the personal injuries and the present action for damages are both common-law actions for negligence, both growing out of the same tort; they are therefore transitory, and could be brought whereever the defendant might be found and jurisdiction over it obtained. 22 Am. & Eng. Ency. Law (2d Ed.) 1378.

The Missouri courts have in a number of cases held that in a transitory common-law action for negligence the law of the place where the tort was committed governs. In the case of Root v. Railway, 195 Mo. loc. cit. 370, 92 S. W. 621, 6 L. R. A. (N. S.) 212, the following language was used:

"And, furthermore, it seems to be settled law that in a transitory common-law action, where suit is brought in a state other than where the injury happened, the interpretation of the common law obtaining in the state where the cause of action accrued, the lex loci, will govern."

See, also, Fogarty v. Transfer Co., 180 Mo. loc. cit. 502, 79 S. W. 664, 1 Ann. Cas. 136; Williams v. Railroad, 106 Mo. App. loc. cit. 63, 79 S. W. 1167; and Chandler v. Railroad, 127 Mo. App. loc. cit. 41, 106 S. W. 553.

Counsel for appellant have met the contention, and show that the common law of England was extended over the territory now embraced within the state of Arkansas when such territory was a part of the territory of Missouri. In their reply brief are set out the various acts of Congress and territorial laws of Missouri relating to the territory now embraced within...