Roberts v. Moss

• Decision Date: 19 December 1907
• Citation: 106 S.W. 297,127 Ky. 657
• Parties: ROBERTS ET AL. v. MOSS.
• Court: Kentucky Court of Appeals

106 S.W. 297

127 Ky. 657

ROBERTS ET AL. v. MOSS.

Court of Appeals of Kentucky.

December 19, 1907

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Action by Milford Roberts and others against E. S. Moss and others. From a judgment of dismissal as to defendant E. S. Moss plaintiffs appeal. Affirmed.

T. Z Morrow, for appellants.

J. N Sharp, for appellee.

SETTLE J.

This is an appeal from a judgment of the Whitley circuit court sustaining appellee Moss' plea and defense of res judicata, and dismissing, as to him, appellants' action, which was one of trespass, quare clausum fregit. The petition particularly described two adjoining tracts of land lying in Whitley county, of which it averred appellants to be the owners, and, in substance, charged that appellee and Dennis Bros., a partnership having its chief office and place of business at Somerset, Pulaski county, in the year, 1903, unlawfully, wrongfully, with force and arms, and without the consent of appellants, entered upon the lands described, drove wagons over the same, and cut down and destroyed much valuable timber thereon, consisting of white oak, chestnut, poplar, pine, and hemlock. For the alleged trespass and consequent injury to the lands and timber, the prayer of the petition asked judgment against appellee and his codefendants in the sum of $3,000. Appellee, Moss, filed a separate answer to the petition, of three paragraphs; the first containing a traverse, the second a claim of title in appellee to the smaller tract of land described in the petition, and the third the defense of res judicata, which was bottomed on these substantially alleged facts: That in an action previously brought by appellants in the Pulaski circuit court against the same defendants a recovery was sought for the value of the timber, alleged in the petition of the case at bar to have been cut by appellee and his codefendants, and that in the petition of the former suit the trespass to the land for which a recovery was sought in the case at bar was expressly waived. The same paragraph of the answer contains, in substance, the further averments that appellee, by separate answer, filed in the first action, denied the conversion of the timber charged in the petition, or that appellants owned it, and also denied that they were the owners of the land; that the first action was tried in the Pulaski circuit court upon the issues thus formed and on the merits, resulting in a verdict and judgment in appellant's favor against Dennis Bros. for $1,600, but at the same time the jury, under a peremptory instruction from the court, returned a verdict in favor of appellee upon which judgment was entered dismissing the action as to him. Certified copies of the pleadings, orders, and judgment of the Pulaski circuit court in the first action were filed with and made a part of appellee's answer in the last action. Appellants filed a demurrer to the third paragraph of appellee's answer, which was overruled, and they then filed a reply, which controverted in part the affirmative matter of the answer. A demurrer was filed to the reply by appellee and sustained by the court, because, in its opinion, the matters contained therein constituted no defense to the plea of res judicata presented by the third paragraph of appellee's answer. When the demurrer to the reply was sustained, appellants refused to plead further. Thereupon the lower court dismissed their action, thereby, in effect, sustaining appellee's plea in bar.

The facts furnished by the averments of appellee's answer and the record of the first action, many of which are not materially controverted by appellant's reply, make it fairly apparent that the timber, for the value of which appellants sued, in the first action, was the same timber the cutting of which is included in the trespass for which the last action was brought. Therefore it would seem to follow that the forcible entry of appellee and his codefendants upon the lands described in the petition, their cutting of the timber thereon, the value of which was sued for in the first action, hauling over the land, etc., were all acts and injuries connected with and growing out of the one trespass or successive trespasses for which the last or present action was brought. If so, appellants might have recovered in one action, brought in Whitley county where the lands lie, for the injuries resulting from the several acts of wrongdoing constituting the one trespass or series of trespasses to the lands, and such recovery would have included the value of the timber cut and converted by the defendants. But, instead of pursuing this course, they elected, as they were privileged to do, to waive the tort, i. e., the trespass, committed by appellee and his codefendants in forcibly entering upon the land, cutting and removing the timber, etc., and to sue them in assumpsit for the value of the timber cut and appropriated by them. That action being a transitory one, it was properly brought in the circuit court of Pulaski county, in which county one or more of the defendants at the time resided. Having thus waived the trespass, and sued appellee and Dennis Bros. for the value of the timber, the cutting and removal of which from their lands constituted in part, at least, the trespass complained of, appellants cannot in a subsequent action recover for the trespass. The right to waive a tort and to sue in assumpsit has long been recognized by the law. The rule broadly, yet with entire correctness, may be stated thus: If one takes and converts to his own use another's property, the latter may maintain an action for trespass, or for trover, or replevin, or for money had and received; but a recovery in one, or a failure to recover in one, after trial on the merits, is a bar to another, because each would be for the same act. This question seems to have received careful consideration from Judge Cooley, who, in his admirable work on Torts, concluded an exhaustive discussion of the subject as follows: "The decisions are quite numerous in this country that assumpsit cannot be maintained unless the property of which the plaintiff has been deprived has been converted into money. But other cases decide...