Home Insurance Co. v. Tate Mercantile Co

• Decision Date: 27 May 1918
• Citation: 117 Miss. 760,78 So. 709
• Court: Mississippi Supreme Court
• Parties: HOME INSURANCE CO. v. TATE MERCANTILE CO

78 So. 709

117 Miss. 760

HOME INSURANCE CO. v. TATE MERCANTILE CO

Supreme Court of Mississippi

May 27, 1918

March 1917

Division A

APPEAL from the circuit court of Pearl River county, HON. A. E WEATHERSBY, Judge.

Suit by the Tate Mercantile Company against the Home Insurance Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

McLaurin & Arminstead, for appellant.

The recovery by the appellee in this suit on contract on the same facts alleged in this suit is res adjudicata 23 Cyc. 1168-1170.

Res adjudicata. The doctrine of res adjudicata, or estoppel by judgment, is a rule founded on the soundest considerations or public policy. It means that if an action be brought and the merits of the question be discussed between the parties and a final judgment be obtained by either party, the parties are concluded and cannot again canvass the same question in another action. It is founded on two maxims of law, one of which is that a man should not be (twice) vexed for the same cause and the other that, it is for the public good that there should be an end of litigation. Wisconsin v. Torinus, 28 Minn. 175-179; 9 N.W. 725 (34 Cyc. 1666 and note.) 1 Greenleaf's Evidence, sec. 531, page 596, and note 2.

Cause of action. Cause of action includes every fact necessary for plaintiff to prove to entitle him to succeed. The terms "right of action," and "cause of action" are equivalent. 1 Words & Phrases, 599-603.

Judgment between the same parties on the same cause of action is conclusive between them. The exceptions to this rule are; First, where the first action was not competent, second, where the plaintiff has mistaken his character; third, where the judgment is rendered for a fault in the declaration or pleadings.

The true question to be determined in such cases is not whether the former suit was actually determined on the merits, but whether the merits were involved and could have been determined in that suit. And the plaintiff who brings the second suit must not leave it to nice investigation to determine whether the cause of action is the same or different, but he should show clearly that they are different, and it is a matter of no importance that the form of action in the first suit was different from the form of action in the last. Agnew v. McElroy, 10 S. & M. 552; Johnson v. White, 13 S. & M. 584; Moseby v. Wall, 23 Miss. 81.

A decree rendered in a former suit is a bar to a subsequent suit between the same parties and in the same right and for the same subject-matter. Manly v. Kidd, 33 Miss. 141; Williams v. Luckett, 77 Miss. 394.

A party will not be permitted to relitigate a matter once settled by merely presenting new arguments on a state of facts not materially different from those existing in the first suit. Moosy v. Harper, 38 Miss. 599.

A judgment between the same parties for the same cause of action is conclusive. The test is whether the same cause of action is litigated or adjudicated in the same suit; the form of action may be different, but the grievance complained of must be the same in both. Perry v. Lewis, 49 Miss. 443, 23 Cyc. 1215,

"Even though the relief sought may be different from that asked in the first suit, yet where the causes of action are not substantially the same, the question is res judicata." 23 Cyc. 1168-1170; Burkett v. Burkett, 81 Miss. 593; Hubbard v. Flint, 58 Miss. 266; Harvison v. Turner, Pamphlet Sheets, So. Feb. 23, 1918; page 528, Div. A., decided Jan. 28, 1918.

Gex & Waller, for appellee.

Certainly the plea of res adjudicata has no merit in this cause. In the one case, a suit was filed for the recovery of the amount due under an agreement. In the other, a tort for damages caused by a wilful course of conduct. One being for the payment of an agreed amount of money, the other in tort being for the violation of contract, the consequences assumed by the defendant other than the payment of the money. In this connection we must call the court's attention to the fact that it certainly comes in bad faith for the appellant here to even suggest that a plea of res adjudicata should be considered by this court. An inspection of the record will show that it demurred to the declaration on the theory that the two suits must be separate; that no plaintiff even on the same cause of action can make his demand in the same declaration on contract and on tort. That they are supported by the proper authority, to wit: Town of Hazelhurst v. Cumberland Tel. & Tel. Co., 83 Miss. 303.

Having raised that question and informed us what the law was on the subject, the demurrer was sustained by the court and the suits separated. Certainly after having insisted that the two suits couldn't be joined, it doesn't lie in their mouth to ask for a reversal of this case on the theory that the suits should have been joined. However, in our opinion there is about as much merit in that contention as is any of the others raised by them. Of course we have no dispute to find with their law, if the causes of action were identical, because this suit may be construed either as a suit for damages for the wilful breaching of a contract or for a tort, because in Mississippi the contract can be waived and the tort may be sued for. See, Heirn v. McCaughan, 32 Miss. 17, not in point; Railroad Co. v. Hearst, 36 Miss. 660; Waters v. Railroad Co., 74 Miss. 539.

So that the cause should be considered either in tort or under contract. In either event, certainly the same matters were not at issue in the other cause, no demand being made there but for the money witheld from the trustee in bankruptcy; but even if it was, are they not estopped now from raising that question because of their conduct hereinabove mentioned. Therefore we pass the authorities on the supposed case made by them.

OPINION

SYKES, J.

The Tate Mercantile Company, appellee, recovered a judgment against the Home Insurance Company for ten thousand dollars in the circuit court of Pearl River county, from which judgment this appeal is prosecuted.

In the court below the appellant insurance company filed a plea of res adjudicata, or a former recovery by plaintiff in another suit against the insurance company of the sum of five hundred, eight dollars and forty-seven cents upon this same cause of action arising out of the identical facts involved in this suit. A replication to this plea was filed by the plaintiff in the court below, in which it alleged in substance:

"That the judgment in the former suit pleaded as res adjudicata is not a bar to the present action, because the former action so pleaded was for the recovery of a balance due under a contract, and the present action is for the recovery of damages arising in tort."

A demurrer to this replication was overruled by the court, and the case was tried on its merits. It is only necessary to notice the pleadings in this case and in the other one for an understanding of this opinion.

In the case at bar the plaintiff originally filed a declaration setting forth at great length his cause of action. The material facts therein stated are that the plaintiff, Tate Mercantile Company, was a corporation engaged in a general mercantile business in Pearl River county; that on its stock of merchandise it had procured from the defendant insurance company six policies of insurance, aggregating in all the sum of seven thousand, five hundred dollars; that on October 25 1915, during the life of these policies, its warehouse was destroyed by fire and a large part of its goods, wares, and merchandise were burned, and that part not burned was badly damaged, the damage amounting practically to the sum the goods were insured for; that immediately after the fire the plaintiff attempted to make proof of loss to the defendant, but that the defendant refused to deal with him directly and referred him to the New Orleans Adjustment Company, the defendant's agent; that plaintiff stated to this agent of the defendant company that because of the war, and the stringency in the money market, it was necessary that a quick adjustment be made of the loss in accordance with the terms of its policies, explaining to this agent that plaintiff had a number of creditors who expected to be paid, and unless a quick adjustment of the loss would be made, it would result in an irreparable injury to the business; that the defendant's agent, taking advantage of this situation, refused to pay the amount of the loss to the plaintiff, and compelled plaintiff to accept in settlement from the defendant as a total adjudication of the loss the sum of three thousand, eight hundred, twenty-one dollars and twelve cents; that plaintiff agreed to accept this amount on the express condition that it should be paid at once, in order that the plaintiff could settle with his creditors and continue his business; that this contract for an immediate payment of this amount was then duly entered into between the agent of the defendant and the plaintiff; that the defendant willfully failed and refused to comply with this contract and pay the money over...