Rehearing
Denied June 23, 1921
Appeal
from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.
Action
by J.I. Russell, as the father of Cy Russell, deceased
against A.L. Jones and others. Judgment for plaintiff, and
defendants appeal. Reversed and remanded.
In an
action against one of two joint tort-feasors, where plaintiff
testified without objection or limitation at the time as to a
prior judgment against the other wrongdoer for the same cause
of action, satisfaction of same and payment of costs, he
waived defendant's failure to plead such judgment
specially.
The
case was originally stated in four counts, but during the
trial all the counts
were eliminated, except count 1, which is as follows:
"Plaintiff claims of defendants $50,000 damages for that
heretofore on, to wit, April 26, 1919, while the
plaintiff's minor son, Cy Russell, to wit, 15 years of
age and a member of the plaintiff's family, was sitting
upon the curbing of the sidewalk of a public street in the
city of Bessemer, Jefferson county, Ala., and defendant's
agent or servant, viz. Ben Gray, whose name to the plaintiff
is otherwise unknown, while acting within the line and scope
of his employment, then and there negligently ran an
automobile against another automobile, which said other
automobile was thereby caused to run against and kill the
plaintiff's said minor child.
"And the plaintiff says that the death of his said minor
son was proximately caused by the said negligence of
defendant's said agent or servant, while then and there
acting within the line and scope of his said
employment."
Demurrers
were interposed to this count, and were overruled, but in
view of the opinion it is not deemed necessary to set them
out. The defendant filed four pleas to the count, the first
being a denial of the partnership between A.L. and L.W
Jones, under the name of Jones Taxi-Cab Company, which plea
was verified. The second plea was the plea of general issue
and the other pleas were all marked, respectively, B and A
and they were duly verified. These pleas are as follows,
together with the demurrers interposed thereto:
Pleas B
and A are verified, and are in the following words:
Plea B: "Since this last continuance of this cause in
this case these defendants would now appear to make this
plea, separately and severally, and plead as follows to this
count of the complaint: This identical plaintiff in this
suit, for the death of this identical minor child, as alleged
and embraced in this complaint, against these herein and
above-named defendants in this suit, brought suit and had
tried in this honorable court and did try and maintain such
said suit for the same identical cause of action named in
this suit, for the same and the identical same death to the
identical same minor and the same identical plaintiff,
against Mrs. W.B. Cannon and Garrett Cannon, as defendants,
wherein and in complaint against the said named defendants
for the wrongful death of the same and the identical minor
son, the same identical cause of action, the same and the
identical plaintiff, and did aver and allege in that suit
against the said Mrs. W.B. Cannon and Garrett Cannon, or
their agents or servants, that the said defendants in that
said suit did proximately contribute to and cause the
identical collision which was there alleged and the identical
cause of action, and did there and then allege and aver
against the said Mrs. W.B. Cannon and Garrett Cannon, who
were joint tort-feasors that they or their agents or servants
did occasion the death of this same and the identical minor
child, of the same and the identical plaintiff, as alleged
and averred in this suit against these defendants, which said
suit was brought, tried, and maintained and then submitted to
the jury in this same and the identical circuit court,
Bessemer division, as this same said and this identical suit
and identical court, which said suit, said pleadings, said
trial, and records in the said circuit court are here made
and referred to and made a part of this plea as if here set
out in full and embraced herein, which said suit against the
defendants aforesaid, it was therein alleged and averred and
charged that it was the wrongful and unlawful acts of the
said Mrs. W.B. Cannon and Garrett Cannon, which caused and
proximately caused the death of the said minor the said same
son of the plaintiff and the identical said cause of action
as alleged herein and against these defendants and as alleged
herein in this complaint, and these defendants aver that it
was charged that it was the negligence of Mrs. W.B. Cannon
and Garrett Cannon, their agents or servants, that produced
and proximately caused the death of this identical minor son,
the son of this identical plaintiff, and which is embraced
and shown by the complaint and herein referred to and made
part of this plea; that in that said suit against the said
Mrs. W.B. Cannon and Garrett Cannon, the plaintiff, the
identical plaintiff in this suit, did recover a judgment
against the defendants, Mrs. W.B. Cannon and Garrett Cannon
of and for the sum of $2,250 and all cost of that said suit,
which has been fully and completely satisfied in this
honorable court, and which is here made a part of and to be
embraced and included in this plea, as if set out in full,
and here referred to as if set out, and these defendants, now
as joint tort-feasors, aver and here allege that the
plaintiff, who is the identical plaintiff here, did receive,
accept, and has been paid the said judgment, and so rendered
for the death of the identical minor son, the identical cause
of action set out and averred in this complaint, for the
identical wrong therein and herein complained of, a full,
complete, and entire satisfaction of the said judgment and
costs of the said suit; therefore these defendants averred
that this plaintiff for this cause of action is now estopped
from the prosecution of this complaint and the wrongs herein
set out and alleged and embraced in the complaint in this
case in the rendition and satisfaction of the aforesaid
judgment for this identical cause of action as averred and
alleged in this complaint against these defendants, for the
same and the identical cause of action, wrongful death and
injury to the identical minor child and for the plaintiff in
this suit."
Plea A: "Since the last continuance in the foregoing
cause the defendants now appear, and for their plea
separately and severally they
say and plead as follows against the cause of action in this
suit:
"The identical plaintiff in this suit, for the death of
the identical minor child as alleged in the complaint against
this defendant, brought suit and tried and maintained suit
against Mrs. W.B. Cannon and Garrett Cannon, as defendants
therein and in the complaint for the wrongful death of the
same identical minor son, and averred and did in that suit
maintain that the negligence of the said Mrs. W.B. Cannon and
Garrett Cannon, or their agents or servants, proximately
contributed to the collision which caused or occasioned the
death of the said minor child; that the plaintiff brought
suit against the said Mrs. W.B. Cannon and Garret Cannon in
the circuit court of Jefferson county, Ala., Bessemer
division, which said complaint, pleadings, records, and files
are now on record and here made a part of this plea, in which
suit against said defendants aforesaid it was alleged and
charged of the wrongful death of the plaintiff's said
minor son, identical as alleged in this suit against these
defendants, here, caused by the wrongful act or negligence of
the said aforesaid defendants, Mrs. W.B. Cannon and Garrett
Cannon, that in that said suit the identical plaintiff for
the identical minor son as here alleged in this complaint the
plaintiff recovered judgment for the sum of $2,250 against
the said defendants, and received from the defendants said
such sum of money in satisfaction of the judgment so rendered
in said cause against the said defendants, and the defendants
each separately and severally aver that the agents and
operators of the alleged automobile in this case were joint
tort-feasors in said collision; therefore the defendants pray
that judgment in full satisfaction be rendered for and in
their behalf in this suit.
"The defendants separately and severally aver that the
cost of this suit and the suit against the aforesaid
defendants by this plaintiff were joint torts.
The
plaintiff demurred to each of these pleas on the following
counts:
"First. Because it fails to appear therefrom that the
said statement was rendered in full satisfaction of the
plaintiff's entire claim for the commission of said tort.
"Second. Because from aught that appears therefrom the
said alleged satisfaction of the said statement was not a
satisfaction of
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