Kimball v. Louisville & Nashville Railroad Co.

• Decision Date: 08 February 1909
• Docket Number: 13,754
• Citation: 48 So. 230,94 Miss. 396
• Parties: EDWIN D. KIMBALL v. LOUISVILLE & NASHVILLE RAILROAD COMPANY
• Court: Mississippi Supreme Court

48 So. 230

94 Miss. 396

EDWIN D. KIMBALL v. LOUISVILLE & NASHVILLE RAILROAD COMPANY

No. 13,754

Supreme Court of Mississippi

February 8, 1909

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

Kimball the appellant, was plaintiff in the court below and the railroad company, the appellee, was defendant there. From a judgment predicated of a peremptory instruction in defendant's favor, the plaintiff appealed to the supreme court.

The opinion of the court state the facts.

Affirmed.

Doty &amp Elmer and J. H. Mize, for appellant.

Appellant's suit for personal injuries, in which this appeal is taken was instituted in June, 1906, and was not tried in the circuit court until June, 1908. His separate suit for injuries to his horse and buggy was instituted by him in May, 1907, and judgment in the sum of $ 50 for the damages to this property was rendered in January, 1908. This judgment for $ 50 had been settled by the railroad company when the suit for appellant's personal injuries was tried in the court below. We do not think that appellant should legally be limited to one suit for settlement of these two separate demands, even though the claims arise from the same tortious act.

The case of Brunsden v. Humphrey, L. R. 14, Q. B. D. 141, seems to have been the first case upon this proposition of law arising in England. It was an action for damages to plaintiff's person sustained in a collision of defendant's cabriolet with that of the plaintiff, who had previously brought suit and recovered damages for injuries to his cabriolet growing out of the same occurrence. The majority of the Queen's Bench held that damage to goods and injury to the person, although occasioned by one and the same wrongful act, are infringements of different rights and give rise to distinct causes of action; and thereby recovery in an action of compensation for the damages to the goods is no bar to an action subsequently commenced for the injury to the person. There was a dissenting opinion by Lord Chief Justice COLERIDGE, and several of our state courts have adopted this dissenting opinion of Lord COLERIDGE as the law.

It will be found that all of the authorities holding that but one suit can be brought under such circumstances rely, for their precedent, on this dissenting opinion of Lord COLERIDGE.

The case of Wilson v. Texas, etc., Railroad Co., 8 Tex. Civ. App. 144, 27 S.W. 924, is a case on all fours with the instant case. There Watson was personally injured in the same railroad wreck which injured some of his mules. Watson first recovered judgment for the mules, and then sued for damages for his personal injuries. The defendant pleaded the former recovery for the mules as being a bar to recovery for the plaintiff's personal injuries. The court in that case held that recovery for damages to the mules did not preclude subsequent recovery for damages because of Watson's own personal injuries.

The case of Reilly v. Sicilian Asphalt, etc., Co., 11 Am. Neg. Rep. 328, 170 N.Y. 40, is also precisely in point here. It is a decision of the highest court of New York, the opinion being by ALTON. B. PARKER, J. Reilly and his vehicle each sustained injuries in consequence of a collision with a gravel pile placed in the road through the negligence of the defendant. Reilly brought an action against the defendant in the court of common pleas to recover damages for the injury to his person. Subsequently, as in the case at bar, he brought an action in one of the district courts of the city of New York to recover for the injury to his vehicle; and in the latter action, just as here, he recovered judgment which was paid by the defendant. Defendant then set up by supplemental answer the judgment in the dictrict court suit, and its satisfaction as a bar to the further maintenance of the action in the court of common pleas. The court of common pleas held that recovery for injuries to the vehicle was a bar to the maintenance of the suit for personal injuries, on the theory that where injuries to the person and his property grew out of the same transaction, recovery as to the one bars maintenance of suit as to the other. The case was then appealed to the supreme court of New York. Reilly v. Sicilian Asphalt, etc., Co., 31 App.Div. N.Y. 302, 4 Am. Neg. Rep. 692), which court sustained and affirmed the judgment of the court of common pleas below. From the supreme court of New York the case then went by appeal to the court of appeals of New York, the court of last resort in that state, which latter court, through an exhaustive opinion, reversed the judgment of the lower courts and held that it was proper for two suits to be brought under the circumstances.

The reasons why two actions, under circumstances such as here, should be allowed to be brought, are many. The rules of evidence and law governing the damages in the two classes of cases are altogether different. An existing claim for personal injuries would not be required to be listed in bankruptcy in case the injured person should be placed in bankruptcy. The injured person in a personal injury suit is permitted to recover for mental suffering and for physical suffering and for permanent injury, if existing, together with compensation for loss of service. Had Kimball been killed on the occasion of his injury, the cause of action for his death would, under our statute law, have been barred after one year from date of death. But the right to his legal representatives to sue for injury to his mule or buggy would exist for six years after date of injury. The measure of damages to property is the difference between the value immediately before the injury and value immediately afterward. If it were the rule that but one suit could be brought by appellant for both injuries, it can readily be seen how a number of complications could arise and the rights of parties be materially interfered with. Murphy v. American Soda Co., 86 Miss. 791, 39 So. 100; Eagan v. New York Transportation Co., 78 N.Y. 209, 39 Misc. 111; Mobile, etc., R. R. Co. v. Matthews, 91 S.W. 194.

It is true that in King v. Chicago, etc., R. Co., 80 Minn. 83, 50 L. R. A. 161, cited by appellee, a contrary rule to the foregoing is announced. We do not think that the case last cited is, however, a well-considered case, and call the attention of the court to the fact that it gives as authority the Reilly case from New York, above set forth.

George L. Smith and H. T. Smith, for appellee.

The great weight of authority, as well as of reason, is opposed to the allowance of two recoveries for the same wrongful act. Those authorities which permit two separate suits for the same tort, one for the recovery of damages done to the property, and the other for the recovery of damages done to the person rest upon the case of Brunsden v. Humphrey, 14 Queen's Bench Division, 141, which is the only authority where a discussion of the question upon principle has resulted in such a holding.

Mr Black, in his work on Judgments, second volume, § 740, accepts the authority of Brunsden v. Humphrey without question, and, apparently, without thought. The civil court of appeals of Texas, in the case of Watson v. Texas Railway Company, 8 Texas Civil App. 144, 27 S.W. 924, in turn accepts the authority of Black on Judgments without further investigation or discussion. These are the only authorities supporting the appellant's position of which we are aware, except the case of Reilly v. Sicilian Asphalt, etc., Co., 88 Am. St. Rep. 639, which rests upon the statutory law of New York, though it too cites the case of Brunsden v. Humphrey. Thus it appears that all of the authorities, upon which the appellant can reply, rest either upon the case of Brunsden v. Humphrey or upon the statutes of New York. Turning to the English case, we find that the opinion of the court was concurred in by BRETT, M. R. and BOWEN, L. J., but that Lord Chief Justice COLERIDGE dissented from the decision in an opinion which seems to us to be unanswerable. The opinion of the majority of the court is made to rest entirely upon the hair-splitting distinction as to whether a cause of action consists of the wrongful act, or of the damage accruing therefrom, the majority of the court taking the view that it is the damage and not the act done, that constitutes a cause of action, which idea is made to rest entirely upon the fact that a wrongful act without injury does not afford a cause of action. While it is quite true that a wrongful act without injury does not afford a cause of action, this is not because the wrongful act does not constitute a tort, but only because it would be practically impossible for any government to furnish sufficient machinery to settle all of the quarrels that might arise between mankind if it undertook to investigate every wrong where no injury was suffered. On the other hand, while wrong without injury does not support a recovery, because the state cannot furnish courts enough to settle all abstract questions of right that may arise, injury...