Smith v. Cincinnati, N. O. & T. P. Ry. Co.

• Decision Date: 22 November 1916
• Citation: 189 S.W. 367
• Parties: SMITH v. CINCINNATI, N. O. & T. P. RY. CO.
• Court: Tennessee Supreme Court

189 S.W. 367

SMITH v. CINCINNATI, N. O. & T. P. RY. CO.

Supreme Court of Tennessee.

November 22, 1916.

Appeal from Circuit Court, Hamilton County; Nathan L. Bachman, Judge.

Action by Julian P. Smith against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a decree dismissing the suit, plaintiff appeals. Affirmed.

Lewis Shepherd and Fleming & Shepherd, all of Chattanooga, for appellant. Allison, Lynch & Phillips, of Chattanooga, for appellee.

LANSDEN, J.

Smith commenced this suit in the circuit court of Hamilton county to recover of the railway company for damages for personal injuries alleged to have been received by him, and for damages to certain personal property, in an accident to a passenger coach of the defendant company in November, 1913. There is no question here but what the company was negligent and the plaintiff received injuries. The only question arises upon a plea of res adjudicata filed by the railway company. The facts pertinent to this plea are as follows:

Plaintiff and his wife, in November, 1913, were traveling on one of the trains of the defendant company, and when it was near the city of Chattanooga the passenger coach in which they were riding was derailed, and they received injuries. Suits were commenced in the federal court to recover damages for injuries sustained by the wife, and also by the plaintiff to recover for loss of the services of the wife, injuries to himself and to his property. In response to motions made by the defendant in the federal court, the plaintiff dismissed all of his suits there except for injuries to his wife and for the loss of her services. The defendant pleaded the former suit and recovery in the federal court as a bar to this action. The circuit judge pronounced judgment on the verdict of the jury, and an appeal was taken from this judgment to the Court of Civil Appeals. In that court the judgment was reversed, and the suit dismissed.

The question, as it comes to us, has not been decided by this court, so far as we are advised. In Railroad v. Brigman, 95 Tenn. 628, 32 S. W. 762, the question was discussed, but a decision was pretermitted. In Railroad v. Matthews, 115 Tenn. 172, 91 S. W. 194, a question very similar was decided, and the Court of Civil Appeals relies upon this case as authority to sustain its action. In C., N. O. & T. P. Ry. Co. v. Roddy, 132 Tenn. 574, 179 S. W. 143, a quotation is made from Freeman on Judgments, which was also made in Railroad v. Brigman, supra. But the Roddy Case did not involve a plea of res adjudicata.

As stated, the case most nearly in point is that of Railroad v. Matthews, supra. That was a suit by Matthews for injuries sustained by him to his person and to his property in a collision with a train at a road crossing. The defendant moved to strike the declaration for duplicity, and the court held that it was not duplex. It was said:

"But in this case there is but one cause of action sued upon. The negligent action of the plaintiff in error constituted but one tort. The injuries to the person and property of the defendant in error were the several results and effects of one wrongful act. A single tort can be the basis of but one action. It is not improper to declare in different counts for damages to the person and property when both result from the same tort, and it is the better practice to do so where there is any difference in the...