Edward Hines Yellow Pine Trustees v. Stewart

• Decision Date: 12 May 1924
• Docket Number: 23739
• Citation: 135 Miss. 331,100 So. 12
• Court: Mississippi Supreme Court
• Parties: EDWARD HINES YELLOW PINE TRUSTEES v. STEWART et al. [*]

100 So. 12

135 Miss. 331

EDWARD HINES YELLOW PINE TRUSTEES v. STEWART et al. ^[*]

No. 23739

Supreme Court of Mississippi

May 12, 1924

(En Banc.)

JUDGMENT. Judgment in action for injuries revived in name of wife as executrix held res judicata in her subsequent action for damages sustained by herself and children.

A servant sued his master for damages for personal injuries caused by the wrongful act of the master, and while the suit was pending the plaintiff died from such injuries, leaving a wife and children. The wife, as his executrix, had said cause revived in her name as such executrix under section 2093 Code of 1906 (section 1760, Hemingway's Code), and recovered therein a judgment against the defendant for the injuries suffered by the decedent. The executrix then brought another suit on behalf of herself and children under section 721, Code of 1906, as amended by chapter 214, Laws of 1914 (Hemingway's Code, section 501), to recover for the injuries suffered by them on account of the death of said decedent. Held, that under said latter statute giving the wife and children the right to recover for the injuries suffered by them on account of the death of the said decedent, as well as the injuries suffered by him in his lifetime, and authorizing either the wife and children or the personal representative of the decedent to sue for and recover for such injuries, and providing that there shall be but one suit for the same death, the judgment in the former suit was res judicata of the issues involved in the latter suit.

ETHRIDGE J., dissenting.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county, HON. J. Q LANGSTON, Judge.

Suit by Mrs. Pauline Stewart and others against Edward Hines Yellow Pine Trustees. Judgment for plaintiffs, and defendants appeal. Reversed and judgment rendered.

Judgment reversed.

T. J. Wills, H. C. Holden and Davis & Wallace, for appellants.

The first suit was brought for the injury to Stewart in his lifetime, revived by his executrix, and prosecuted to judgment. The second, or present suit, was brought by the widow and children of Stewart for his death. It was the contention of the defendants, presented in various ways in the court below, that the damages recovered in the first suit included all damages that could be recovered for the injury, and that the second suit was barred; that the first suit exhausted the cause of action for the injury.

It is the contention of the appellants now that the appellee should not have been permitted to maintain this second suit and recover judgment in the lower court because her alleged right to recover for the injury and death was extinguished or exhausted by virtue of the former suit, and because the judgment in the former case was a bar to recovery in the present case.

I. Only one action is maintainable under our statutes.

The two statutes involved in this case are section 501 and section 1760, Hemingway's Code. So far as the writer has been able to ascertain after earnest examination of the reports, this court has only once construed these two statutes, in reference to the question as to whether or not two separate suits may be brought, since the decision in Hamel v. Southern R. Co., 108 Miss. 172, 66 So. 426, 809. The Hamel case was decided without consideration of the amendment to section 721, Code of 1906, by chapter 214, Laws of 1914.

The amendment of 1914 was not construed by this court in its decision of the Hamel case. That decision was based entirely upon the statutes as written prior to 1914. The decision of the court was rendered in November, 1914, but the cause of action arose before the amendment was made by the legislature, so that the case was governed by section 721, Code of 1906, as it read prior to its amendment in 1914. It is submitted that the decision in the Hamel case cannot be controlling in this case because it did not deal with the amendment of 1914, and the present case must be decided in the light of that amendment.

The federal statutes on this subject are practically identical with the two statutes of this state. The federal Employers' Liability Act, as amended, contains two sections which are almost word for word the same as sections 501 and 1760, Hemingway's Code. (U. S. Compiled Statutes 1918, pages 1384-85, sections 8657 and 8665). And the Federal courts have ruled that under these federal statutes there can be but one suit in which all damages to the decedent and to the heirs must be obtained or not at all.

The United States supreme court has held that there cannot be two suits, that there can be only one suit, whether this be a suit revived by the personal representative, or a suit begun by the personal representative, or whether it be a suit by the heirs and next of kin. St. Louis R. Co. v. Craft, 237 U.S. 648, 59 L.Ed. 1160; Kansas City Southern R. Co. v. Leslie, 238 U.S. 599, 59 L.Ed. 1478; Great Northern R. Co. v. Capital Trust Company, 242 U.S. 144, 61 L.Ed. 208; Moffett v. Baltimore. R. Co., 220 F. 39, 135 C. C. A. 607; Northern Pacific R. Co. v. Maerkl, 198 F. 1, 117 C. C. A. 237.

Some of the state courts have also construed the federal statutes in like manner. St. Louis, etc., R. Co. v. Rodgers, 118 Ark. 263, 176 S.W. 696; St. Louis, etc., R. Co. v. Conarty, 106 Ark. 421, 155 S.W. 93; Chopin v. Norfolk, etc., R. Co., (W. Va.), 93 S.E. 822.

This court held in Bussey v. R. R. Co., 79 Miss. 567, 31 So. 212, and in Pickens v. Railroad, 92 Miss. 210, 45 So. 868, that under section 721, Code of 1906, there can be but one suit.

The only case decided by this court, since Hamel v. Railroad, supra, which is similar in facts to the instant case is Harris v. Railroad, 111 Miss. 623, 71 So. 878. Harris sued for personal injury and obtained a judgment from which an appeal was pending when he died. Subsequently, Harris's widow filed suit under section 501, Hemingway's Code. The defendant successfully pleaded the former suit by Harris himself as a bar to the suit of his widow. This court affirmed the case, holding that the cause of action for the injury was exhausted when Harris obtained his judgment even though an appeal therefrom was pending in the supreme court. Harris' own case on appeal was revived by Mrs. Harris as administratrix and subsequently affirmed.

It is submitted, in all earnestness, that there is no real difference, in law or in reason, between a recovery by the injured person in his lifetime and a recovery by revival after death. In both instances the cause of action for the injury is exhausted. This, in effect, is the holding of the court in the Harris case.

The distinction drawn by Justice SAM COOK, in the Hamel case, between sections 2091 and 2093, Code of 1906 (sections 1758 and 1760, Hemingway's Code) is wholly artificial and without a sound basis in reason or law. For a discussion of survival and death statutes, similar to our own see 17 Corpus Juris at page 1187. Numerous authorities are cited by the text, among which are: Railroad v. Hicks, 91 Miss. 273, 46 So. 260; Pickens v. Railroad, supra; Railroad v. Phillips, 64 Miss. 693, 2 So. 537.

It is submitted that this court should and will adopt the rule promulgated by the federal courts in construing the federal act. Otherwise, it is readily foreseen that should a case of this kind arise in the state courts based upon the federal act this court would necessarily follow the decisions of the federal courts in applying the act, and thus we would have one rule applicable to cases under the state statutes and exactly the opposite rule applicable to cases under the federal statutes, although the state and federal laws are virtually identical in their provisions. Such a state of affairs in our jurisprudence is surely to be opportunely avoided.

H. C. Holden, for appellants, in response to the court on the following question:

"Are the appellees in such privity with the administratrix of Stewart's estate as to cause the former judgment adjudicating the appellants' liability to be conclusive here?"

The first suit was brought by Stewart in his lifetime and revived by his widow as administratrix of his estate. The second suit was brought by the widow and the heirs under section 501, Hemingway's Code, which gives a right of action for the death of a person injured by the negligence of another. This being true, the question then is whether or not there was privity between the administratrix of Stewart's estate and the widow and heirs of Stewart, so as to make the record and judgment in the first case res adjudicata as to liability of the defendants in the second or present case.

It is the contention of the appellants that not only was the record and judgment in the former case not res adjudicata or conclusive against the defendants in the second or present case, but also that the record and judgment in the former case were inadmissible and incompetent evidence and should have been excluded when offered by the plaintiffs. The doctrine of res adjudicata is defined in 15 R. C. L., pp. 950-953, par. 429. See, also, 23 Cyc. 1237; 23 Cyc. 1243 to 1245; 15 R. C. L. at page 1023 to 1024, par. 497.

Applying the rule to the relationship of parent and child, see 15 R. C. L. at page 1022, par. 495. Parties and privies are defined in Lipscomb v. Postell, 38 Miss. 489. The court held in this case that there is no privity existing between a guardian, executor, or administrator, and his surety on his official bond, and that a judgment against the former does not conclude the latter. See, also, McLaughlin v. Green, 48 Miss. 207; Champion v. Gayce, 54 Miss. 605.

Summing up the question at issue in the light of the above authorities, it is submitted that there is no privity between the administratrix of Stewart's estate on the...