Firemen's Fund Ins. Co. v. Gulf Transp. Co
| Decision Date | 10 March 1924 |
| Docket Number | 23540 |
| Citation | 135 Miss. 537,99 So. 515 |
| Parties | FIREMEN'S FUND INS. CO. v. GULF TRANSP. CO |
| Court | Mississippi Supreme Court |
Suggestion of Error Overruled April 21, 1924.
APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH Chancellor.
Suit by the Gulf Transportation Company against the Firemen's Fund Insurance Company. From a decree for plaintiff defendant appeals. Affirmed.
See also, 121 Miss. 655, 83 So. 730, 9 A. L. R. 1307.
Decree affirmed.
White & Ford, Henry P. Dart, and Wells, Stevens & Jones, for appellants.
I. The Plea of Res Adjudicata was Well Taken and Constitutes an Absolute Bar to the Present Action.
1. Same parties, cause of action and issue here presented.
Here the two suits are between the same parties. Both actions are founded upon the same insurance policy. Loss or damage is claimed for the same disasters. Of course, the same barge is involved. At the time the present action was instituted appellee was in possession of all the known facts and claimed damages for both disasters or mishaps. The same evidence which controlled the former proceeding controls the present. Certainly the same evidence is before the court in both actions. This being true, we submit a very clear statement of the rule as found in Union Central Life Insurance Company v. Drake, 214 F. 536, an opinion by the circuit court of appeals for the eighth circuit.
We get at once, therefore, to the question whether this is a "different cause of action." We respectfully submit that it is not. An attempt is made to charge fraud and negligence in the repairing of the barge, but we submit the action is essentially upon the marine policy of insurance. The insurance company was not in the shipbuilding business and entered into no contract to repair or rebuild the barge. On the contrary, the written contract was expressly between appellee and Weaver. Weaver is not a party to this action and appellee had an opportunity to take his deposition and declined to do so. This fact is referred to in the former opinion of the court. No fraud or failure is charged against the contractor. Wherein, then, does the action in tort lie? Appellee is driven to the position that the plans and specifications were improper. But nowhere does appellee point out wherein the plans are defective or unscientific. This, therefore, in the first place, is not an action in tort because the amended bill is insufficient to make it so. Mere allegations of fraud and gross negligence are insufficient to state a case. The only possible theory under which the amended bill states a case, is to regard it as an action upon the policy of insurance and a claim for a total loss of the vessel under the policy. In the former action, the court denied the very recovery here sought. The very matter now in issue was indirectly presented by the pleadings in the former suit. The same testimony now relied upon was relied upon in the first suit. This, we submit, therefore, is the same cause of action or at least a part of the same cause of action presented in the former proceeding. For further statement of the law, see Vinson et al. v. Mortgage Company, 116 Miss. 59; Commercial Electric Supply Co. v. Curtis, 288 F. 657.
2. Former judgment was conclusive against both parties.
The rule of law for which we contend, of course, works both ways. The former judgment is conclusive against the insurance company as well as the assured. This is very well reflected by Mr. Parsons in his work on Marine Insurance, Vol. 2, pages 490-1. See Note 1 to the text on page 491. See, also, Hendy v. Gray, 93 So. 614.
It is a well-known rule of law that every fact necessarily put in issue in a former suit is binding upon the same parties in a subsequent action, even though the latter may be termed a different cause of action. All of the rules are stated by Judge SANBORN in Pierce v. National Bank of Commerce, 268 F. 487.
Under the third rule stated by Judge SANBORN it is clear to our minds that the issue of structural weakness was directly presented in the former suit and there litigated and decided adversely to appellee company. The testimony clearly supports the fact and gives the only reasonable hypothesis or explanation for the failure of the barge to stand up under the heavy weight of her cargo.
To the same point is the case of Southern Pacific Railroad Co. v. United States, 42 L.Ed. 355.
Not only may an insurance company invoke the general rule of law under discussion but even a judgment rendered in a foreign country is conclusive and judgments of a Court of Admiralty on Marine Insurance policies are conclusive. Cucullu v. The Louisiana Insurance Co., 5 Mart. (N. S.) 464, 16 Amer. Rep. 199. Note to Dunstan v. Higgins, 20 L. R. A. (N. S.) 668. To the same point are other cases in this note, including the Mississippi cases of: Agnew v. McElroy, 10 S. & M. 552; Johnson v. White, 13 S. & M. 587; Weathersby v. Pearl River Lumber Co., 88 Miss. 535; Moseby v. Wall, 23 Miss. 83; Perry v. Lewis, 49 Miss. 443; Moody v. Harper, 38 Miss. 599; Smedes v. Iisley, 68 Miss. 590; Orr v. Wall, 28 Miss. 409.
We call particular attention to Home Ins. Co. v. Tate Mercantile Co., 117 Miss. 760, 78 So. 709. This case, we submit, is a complete answer to every contention made by appellee, or that can be made by appellee in this case. No litigant should be twice vexed with the same cause of action. The policy of the law is to put an end to litigation at some stage.
3. Hardy v. O'Pry differentiated.
Counsel in the lower court relied upon Hardy v. O'Pry. The case is in our judgment easily differentiated. There the first suit was for a breach of a contract to obtain an appropriation. The second suit was for a breach of a contract to pay for personal services as a stenographer. The causes of action therefore were different. This is the only Mississippi case out of which learned counsel for appellee seem to get any comfort whatsoever, and we respectfully submit that the Hardy case is not applicable there. In further support of our position see The Johnson Co. v. Wharton, 152 U.S. , 38 L.Ed. 429; Mason Lumber Co. v. Butchel, 101 U.S. 638, 639, 25 L.Ed. 1074; 5 Joyce on Insurance, par. 3717.
We direct particular attention to the comparatively recent case of United States Fidelity & Guaranty Co. v. Tate County, 114 Miss. 7, 74 So. 769.
II. Appellee Cannot Split Its Cause of Action. 24 Standard Encyclopedia, page 300, treating the subject "Successive Suits" states the fundamental, rule: "A single cause of action cannot be divided up into distinct demands and made the subject of separate actions." Many cases are cited in the footnotes in support of this text, including the Mississippi cases of Vicksburg Water Works v. Ford, 97 Miss. 198; McLendon v. Pass, 66 Miss. 110, 5 So. 234, Pullman v. Crisman, 59 Miss. 124.
We are not taking the position that the litigant cannot in any event split his cause of action but he does so at his risk and the recovery of a less amount is a bar to any further recovery. 24 Standard Ency. Procedure, 302; Insurance Co. v. Railroad Co., 44 Utah 26, 35; Wells on Res Adjudicata, sec. 466, page 392; Weber v. Railroad, 36 N. J. 213.
III. The Splitting of One Cause of Action Bars a Subsequent Suit. As stated in 24 Standard Encyclopedia, page 202, such action "bars the recovery of the balance due at the time of the first action, the whole demand being treated as merged in the judgment." See, too, 15 Standard Ency. Procedure, page 515; Lorillard v. Clyde, 19 Am. St. Rep. 470, 473; 24 Amer. & Eng. Ency. of Law (2 Ed.), 786; Kimball v. Louisville & Nashville Railroad Company, 95 Miss. 396; McKnight v. Minn. Street Railway Co., L. R. A. 1916D, 1164.
Of course, it makes no difference that the former proceeding was in equity. There is no effort to upset the former adjudication on the ground of fraud and the former decree stands. McDonald v. Mobile Life Insurance Co., 65 Ala. 358.
IV. Appellee is Precluded from any Further Recovery upon the Doctrine of Election of Remedies.
While the election of remedies, sometimes known as "waiver by election," is a species of estoppel, it is distinguished from the usual doctrine of estoppel especially in the fact that an estoppel results from an act which may operate to the injury of another party, and sometimes carries an implication of fraud, while election does not.
There is nothing to prevent a plea of res adjudicata and a plea of election of remedies at the same time, and the two may conspire in defeating the cause of action. 20 C. J., page 4; Kalberg v. Newberry (N. D.), 170 N.W. 113, 117.
It is our purpose to show that the present action is not only concluded under the doctrine of res adjudicata, but that appellee has intentionally waived his right to prosecute the present suit. We concede that there must be an inconsistency in the positions which appellee has taken. We furthermore cheerfully concede that there must be either an actual or implied intent to make an election. The doctrine that intent to make an election between inconsistent remedies is essential applies only where the action in the first instance is taken in ignorance of the facts. 20 C. J. 35. But a litigant must act with reasonable dispatch after learning the facts. Otherwise he will be conclusively deemed to have waived the right. This is the test. Measured by this test, as conclusively shown by the testimony, appellee had full knowledge of all the facts at the time the first suit was filed, and the benefit of a long series of negotiations looking toward a settlement of both claims, and the benefit of able legal advice.
In the light of all the facts, appellee elected to claim a total loss under the reinstated policy on account of an alleged peril of the sea. At this...
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