Louisville Gas Co. v. Kentucky Heating Co.
| Citation | 132 Ky. 435,111 S.W. 374 |
| Parties | LOUISVILLE GAS CO. et al. v. KENTUCKY HEATING CO. |
| Decision Date | 20 June 1908 |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Hardin County.
"To be officially reported."
Action by the Kentucky Heating Company against the Louisville Gas Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Humphrey Hines & Humphrey, Alexander G. Barret, L. A. Faurest, F. M Sackett, and Fairleigh, Straus & Fairleigh, for appellants.
Matt O'Doherty, O'Meara & James, and McQuown & Brown, for appellee.
In December, 1901, the Kentucky Heating Company brought suit in the Meade circuit court against the Louisville Gas Company and others, seeking to enjoin them from wasting the natural gas in that field. This suit proceeded to a judgment, in which the injunction was granted, and, upon appeal to this court it was affirmed in 117 Ky. 71, 77 S.W. 368, 70 L. R. A 558, 111 Am. St. Rep. 225. After this judgment the Kentucky Heating Company, in January, 1904, filed the present suit against the same defendants, in which it sought to recover damages for the alleged wasting of gas in the Meade county field. This suit was prosecuted to a judgment in favor of plaintiff for $60,000. From that judgment this appeal is prosecuted.
The parties, plaintiff and defendant, in the suit for an injunction and in the suit from which this appeal is prosecuted, are the same. The Kentucky Heating Company in the present case pleaded the recovery of the judgment in the equity suit, which is affirmed in 117 Ky. 71, 77 S.W. 368, 70 L. R. A. 558, 111 Am. St. Rep. 225, as an adjudication of the fact, as between them, that the appellants during the time complained of had, in the operation of a certain lampblack factory, wasted a great quantity of gas, and thereupon laid its damages therefor at $250,000. The defendants, the Louisville Gas Company and others, answered, traversing the allegations of the petition, pleaded the statute of limitation, and also pleaded the judgment in the equity suit as a bar to the maintenance of this action. The plea of the statute of limitation has been abandoned upon this appeal, and will therefore not be considered. The judgment in the suit in equity was pleaded and relied upon by the plaintiff as an adjudication between it and the defendants of the fact that the defendants had wrongfully wasted gas in the Meade county field, and the same judgment was pleaded by defendants in bar to the plaintiff's right to maintain the action. The trial court sustained a demurrer to the defendants' plea of the judgment in bar, and held that the judgment in the equity suit was an estoppel against the defendants from proving that they had not wrongfully wasted the gas, and the only issue to be tried was the ascertainment of the damages sustained by the appellee, the Kentucky Heating Company, by reason of the wrongful wasting of gas by appellants. The weight of the argument on both sides is devoted to the respective contentions of the parties as to the force and effect of the judgment in the suit in equity upon the rights of the parties in the present action.
Upon this contention we have had little difficulty, and it is unnecessary to consider at length the numerous cases cited. It is contended by appellants that the appellee, in its suit in equity to enjoin the appellants from wasting the gas, could have joined with that action their claim for damages, presented in this action; that a court of equity had jurisdiction to grant complete relief, by way of assessing damages, in addition to the relief of injunction, and, this being true, appellee had its day in court, and, having elected to sue for only the injunction, it is now estopped from maintaining another action against the same parties for damages. In other words, it is claimed that the cause of action for injunctive relief and for damages was one entire cause, and, having taken only partial relief, the present action is a splitting of the cause. Some decisions of courts of other states are cited in support of this contention, but such a rule does not apply under the laws of this state. The claims do not constitute a single cause of action. It is true they might have been joined, and a court of equity might, after taking jurisdiction to grant the equitable relief, have retained jurisdiction of the case to assess the damages, but it does not follow that both claims constitute a single cause of action, or that plaintiff was compelled to present both in the same petition.
While they might be joinable, they are, nevertheless, separate and distinct causes of action; the one calls for the protection of a right, the other indemnity or compensation for wrongs done. While under the Code, there is one form of action, they are by title divided into two classes, ordinary and equitable, and had a claim for damages been made in the equitable action, it would have required a separate and distinct trial, had either party demanded it, and an issue out of chancery to a jury, as a matter of right. This being true, the trial court properly sustained a demurrer to appellants' plea of the judgment in bar of the action.
It is further contended by appellants that, if the judgment in the equity suit was not a bar to the action, then it had no probity of relation to any matter at issue in the present action. With this contention we cannot agree. While the parties to the two actions are the same, the subject-matter being different, the judgment is not a bar, but, the parties being the same, it is conclusive proof of any fact at issue and adjudged on the merits. The main issue in the suit in equity was whether or not appellants would wrongfully waste the gas in the Meade county field, and, in order to show that they would do so, appellee introduced proof to the effect that they had theretofore wasted it, and upon this proof the chancellor based his finding, upon which the injunction was issued. The fact that they had wasted the gas was in issue only for the purpose of showing that they would thereafter waste it, but appellants are not precluded, in this suit,...
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