Morgan v. St. Louis & S. F. R. Co.

• Decision Date: 18 April 1905
• Court: Missouri Court of Appeals
• Parties: MORGAN v. ST. LOUIS & S. F. R. CO.

86 S.W. 590

111 Mo. App. 721

MORGAN v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

April 18, 1905.

ACTIONS—SPLITTING DAMAGES—SETTLEMENT — SUBSEQUENT SUIT—FORMER ACTION AS BAR—ESTOPPEL.

Plaintiff sued for the destruction of certain fence rails by a fire set out by defendant railroad company, and while this suit was pending such damages, together with certain damages caused by a subsequent fire, were settled by a release providing that the amount paid was in full of all claims of whatever kind, "except forest timber that might have been damaged by the former fire." Held, that defendant thereby consented to a splitting of the damages or demand arising out of the first fire with reference to the forest trees, and was estopped to set up the suit so settled as a bar to a subsequent action to recover damages for injury to the trees.

Bland, P. J., dissenting.

Appeal from Circuit Court, Howell County; Robt. N. Evans, Judge.

Action by G. W. Morgan against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

About May 2, 1903, a fire, set by one of defendant's locomotive engines, spread and burned over 200 acres of plaintiff's timber land, killing and injuring a lot of young, growing trees, destroying the mulch on the land, and consuming a part of plaintiff's rail fence. On the 4th day of the following June plaintiff commenced suit before a justice of the peace, and recovered judgment by default for $25, the value of the rails destroyed. The damage to his growing trees and the destruction of the mulch was not included in the complaint or judgment. The defendant company appealed from the judgment of the justice to the circuit court, but pending the appeal paid the judgment, and at the same time settled with plaintiff for damages caused to his orchard by a subsequent fire set by one of defendant's locomotive engines. In February, 1904, plaintiff commenced a second suit before a justice of the peace to recover the damages to his forest trees and mulch, caused by the fire of May, 1903. This cause was taken to the circuit court by appeal from the judgment of the justice. The defendant filed the following answer (omitting caption) in the circuit court: "Defendant, answering plaintiff's statement of his cause of action, denies each and every allegation therein contained. Defendant, further answering the said statement, alleges that on the 4th day of June, 1903, plaintiff instituted before J. N. Meredith, a justice of the peace of Goldsberry township, Howell county, Missouri, a court of competent jurisdiction in that behalf, a suit to recover damages on account of the fire of which plaintiff now complains, and prosecuted said suit to final judgment before said justice, said court then and there having jurisdiction in that behalf; that afterwards the defendant paid off and discharged said judgment, and the same is fully paid and satisfied; that the present suit is to recover damages alleged to have been caused by the same fire, and none other. Therefore defendant says that the plaintiff ought not to maintain or prosecute this suit, and defendant pleads said prior suit and judgment in bar to this action." Plaintiff offered evidence tending to prove the allegations of his complaint. The defendant showed the rendition of the judgment of June 4th, and its payment, and at the close of the evidence moved for a compulsory nonsuit, which was refused. The court withdrew from the consideration of the jury the item of damages caused by the destruction of the mulch on plaintiff's land, and submitted the other issues to the jury, who returned a verdict for the plaintiff for $75. After taking the usual steps to preserve its exceptions, defendant appealed.

W. J. Orr, for appellant.

BLAND, P. J. (after stating the facts).

The sole question presented by the record and argued by counsel in their briefs is whether or not the plaintiff could split his demand, and successfully prosecute two suits for damages caused by one and the same wrong. The rule against splitting a cause of action is aptly expressed by the Supreme Court in Savings Bank v. Tracey, 141 Mo., loc. cit. 258, 42 S. W. 947, as follows: "No rule of law is better settled than that a single cause of action cannot be split in order that separate suits may be brought for the various parts of what constitute but one demand, and the rule is founded upon the plainest and most substantial justice. It is an old maxim of the common law that `no one ought to be twice vexed for one and the same cause.' It has always been regarded as a matter of concern to the state that litigation should have an end, and that no citizen should be unnecessarily harrassed with a multiplicity of suits. That such has been the law of this state for many years the decisions of this court all attest." Respondent concedes the rule, but to avoid its application to the facts in the case invokes two exceptions: First, that the plaintiff was not aware that his timber was damaged by the fire at the time he brought the first suit; second, that the defendant consented to a division of the damages or action. The evidence shows that at the time the justice's judgment was paid off a settlement was made, and reduced to writing, and signed by the defendant. It reads as follows: "Trask, the twenty-seventh day of November, 1903. This certifies that upon the St. Louis and San Francisco Railroad Co. paying to me through their agent at Mt. View, Mo., station on or before the twenty-seventh day of December, 1903, the sum of ninety-five dollars ($95) I hereby agree to accept said sum of ninety-five dollars ($95) in full settlement and satisfaction of all claims of whatever kind and description arising from or growing out of damage to any and all kinds of property up to and including the twenty-seventh day of November, 1903, except forest timber that may have been damaged May 2, 1903. In presence of W. A. Mundell. G. W. Morgan." Defendant testified that the $95 mentioned in the written instrument was made up of the judgment for $25 and damages to his orchard caused by a fire subsequent to the one of May, 1903. The only evidence in respect to his knowledge of the damage to his young timber at the time he brought his first suit is found in the following questions and answers: "Q. (By Plaintiff's Counsel). At...