McCoy v. Louisville & N.R. Co.

• Decision Date: 29 November 1905
• Citation: 146 Ala. 333,40 So. 106
• Parties: MCCOY v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

40 So. 106

146 Ala. 333

MCCOY v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

November 29, 1905

Rehearing Denied Jan. 30, 1906.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"To be officially reported."

Action by Dollie McCoy, administratrix of the estate of Mattie Osby deceased, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Corrected and affirmed.

B. M Allen, for appellant.

Tillman Grub, Bradley & Morrow, for appellee.

DENSON J.

This action is by Dollie McCoy, as the administratrix of the estate of Mattie Osby, deceased, against the Louisville &amp Nashville Railroad Company, for personal injuries resulting in the death of the plaintiff's intestate, and which were received in a collision which occurred in the village of East Birmingham between a locomotive of the defendant and a street car of the Birmingham Railway, Light & Power Company at a crossing of the two roads at grade. The plaintiff's intestate was a passenger on the street car. The complaint in one count ascribes the collision to the negligence of the defendant. In other counts the collision is ascribed to the wanton or willful conduct of the defendant's servants.

The defendant pleaded, since the last continuance, in bar of the further maintenance of the suit against it, "that the negligence of the Birmingham Railway, Light & Power Company proximately contributed to the collision which occasioned the injuries from which the plaintiff's intestate died; that the plaintiff brought suit against said Birmingham Railway, Light & Power Company because of the wrongful death of her said intestate, caused by the negligence or wrongful act of said Birmingham Railway, Light & Power Company; that in said suit the plaintiff recovered judgment for the sum of $1,500 against said company and received from said company $1,500 in satisfaction of the judgment so rendered in said cause against it." It was also averred in the plea that the costs of the suit against the Birmingham Railway, Light & Power Company were paid by said company. Several grounds of demurrer were assigned to the plea, the essential ones being: First, that the plea did not show that the defendant and the Birmingham Railway, Light & Power Company were joint tort-feasors; second, that the complaint showed that the defendant was entitled to recover punitive damages. It is a familiar principle of law that where there has been a judgment against one of two or more joint tort-feasors, followed by an acceptance of satisfaction of such judgment by the plaintiff, the judgment and satisfaction may be successfully pleaded by the other joint tort-feasor to the further maintenance of suit by the same plaintiff involving the same cause of action. Blann v. Crocheron, 20 Ala. 320; O'Neal v. Brown, 21 Ala. 482; Du Bose v. Marx, 52 Ala. 506; Smith v. Gayle, 58 Ala. 600; Layman v. Hendrix, 1 Ala. 212; Vandiver v. Pollak, 107 Ala. on page 551, 19 South. on page 181, 4 Am. St. Rep. 118; Lovejoy v. Murray, 3 Wall. (U. S.) 1, 18 L. Ed. 129; Cleveland v. City of Bangor (Me.) 32 A. 892, 47 Am. St. Rep. 326; Tompkins v. Clay Street Ry. Co., 66 Cal. 165, 4 P. 1165; Doremus v. Root (Wash.) 63 P. 572, 54 L. R. A. 649; Seither v. Philadephia Traction Co., 125 Pa. 397, 17 A. 338, 4 L. R. A. 54, 11 Am. St. Rep. 905; Abb v. Northern Pacific Railroad Co. (Wash.) 68 P. 954, 58 L. R. A. 293, 92 Am. St. Rep. 864; Russell v. McCall, 141 N.Y. 437, 36 N.E. 498, 38 Am. St. Rep. 807; 1 Waterman on Trespass, p. 73, § 68; 2 Freeman on Judgments, § 467.

We understood that the principle above stated is conceded by the appellant to be correct. She insists, however, that the principle is not applicable to the case at bar. Her insistence is stated in the brief of counsel in this language: "The two corporations, whose negligence caused the death of the deceased, were not joint tort-feasors. Where there is a wrong in which several join, without concert, they are not joint tort-feasors, and therefore a release of one is not a release of all." The view we take of the case renders it unnecessary for us to determine the joint liability vel non of the two companies. The authorities cited in the briefs of counsel, together with the case of Richmond & Danville R. Co. v. Greenwood, 99 Ala. 501, 14 So. 495, may be consulted with profit by any one desiring to prosecute that inquiry.

Reading the complaint and the plea together, it clearly appears that whether there was the ligament of common purpose binding the acts of the two companies together or not, their acts of negligence united in causing the single injury to the plaintiff. A rational rule deduced from the authorities supra would seem to be that, "where one has received an injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrongdoers are liable for the damages occasioned by the injury. It is also manifest that this single injury, in itself and of itself indivisible, constitutes an indivisible cause of action. This is true, notwithstanding the fact that the party injured could maintain separate suits on this cause of action against the tort-feasors at the same time, and could not have sued them jointly, and the mere pendency of suit or judgment without satisfaction could not be set up in defense by either tort-feasor. So in the case at bar the two companies were tort-feasors, and, whether jointly liable or not, the plaintiff had a cause of action against them separately; but she had only one cause of action, and it was an indivisible one. Upon this cause of action she could have maintained a suit against each of the tort-feasors simultaneously, and the mere...