St. Louis-San Francisco Railway Co. v. Davis

• Decision Date: 29 January 1923
• Docket Number: 127
• Citation: 247 S.W. 53,157 Ark. 27
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. DAVIS
• Court: Arkansas Supreme Court

247 S.W. 53

157 Ark. 27

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. DAVIS

No. 127

Supreme Court of Arkansas

January 29, 1923

Appeal from Crawford Circuit Court; James Cochran; Judge; reversed.

Judgment reversed and cause dismissed.

W F. Evans, Warner, Hardin & Warner, for appellant.

A single cause of action cannot be split in order that separate suits may be brought for the various parts of what really constitutes but one demand, whether ex contract or ex delicto. 24 Ark. 177; 63 Ark. 259; 118 Ark. 402; 1 C. J. sec. 276, p. 1106, note 48; 1 Suth. on Damages (3d ed.) sec. 106; 18 P. 502; 127 S.W. 472; 50 L. R. A. 161; 38 Mo.App. 511; 24 Okla. 96; 18 P. 636; 120 Ky. 686; 115 Tenn 172.

A single tort can be the basis of but one action. 1 Suth. on Dam., sec. 110, p. 315; L. R. A. 1917-C, 543; L. R. A 1916-E, 974; 50 L. R. A. 828; Id. 161; 3 L. R. A. (N. S.) 225; 1 Freeman on Judgments, sec. 241; 23 Cyc. p. 1178; 25 Mo.App. 650; 1 C. J., sec. 301, p. 1118.

Where an attempt is made to split the cause of action and bring successive suits for parts, a recovery in the first suit, though for less than the whole demand, will be a bar to the second action. 118 Ark. 402; 60 Ark. 146; 95 Ark. 47; 119 Ark. 263.

For other authorities holding that there was but one cause of action see 1 R. C. L. 326, p. 346; 120 A. S. R. 379; 83 Mo. 660; 13 Ind. 103.

George Stockard, for appellee.

Where several judgments are rendered upon the same cause of action, a satisfaction of one of them will operate to discharge the others, provided the costs of all the suits be paid, also the interest on the judgment which is urged as a bar. 16 Stand. Proc., p. 593. The killing of each animal was a separate offense, although occasioned by the same agency. A case illustrative of our contention, where separate suits were brought under similar facts, see 41 Kan. 521.

OPINION

SMITH, J.

On September 15, 1921, appellees filed seven separate suits before a justice of the peace against the appellant railroad company to recover damages for seven head of cattle which they alleged were killed and crippled by one of defendant's trains on the 6th day of August, 1921. A summons was issued in each case, and on September 29, 1921, a separate judgment was rendered in each case for the amount sued for. The judgment in the first case was for $ 60 for one heifer; that in the second case was for $ 60 for another heifer, and the judgments in the four other cases were for different amounts aggregating $ 180.

On October 7, 1921, the railroad company paid and satisfied the judgment in the first case filed, and on October 12, 1921, appealed the remaining six cases to the circuit court.

There is some controversy about the conversation which occurred between the attorney for appellee and the attorney for appellant at the time the first judgment was satisfied, as to the purpose in satisfying it and in not satisfying the other judgments; but we regard this conflict as unimportant, for the reason that the railroad company had the right to satisfy the judgment if it saw proper to do so.

Upon the appeal the cases were consolidated and tried together, after the railroad company had filed an answer setting up the facts stated above, and pleading the satisfaction of the first judgment in abatement of the other suits.

There was testimony from which the jury might have found that the railroad company had not overcome the statutory presumption of negligence arising from the killing of the animals by a moving train. The animals were struck about 9:50 p. m. by a night passenger train, during a drenching rain, and the engineer and fireman testified that the cattle were bunched together and were lying near the point of a curve, and were not seen by them in time to have avoided striking them, because of the curve. The testimony on the part of appellees was to the effect that the animals were found lying along the track, and one witness stated that the last animal killed was lying 225 feet from the first animal killed. The other animals were lying between. Other witnesses for appellees placed the animals nearer together than we have stated, but none of them place the entire distance at more than 225 feet, and we state the testimony most favorably to appellees. One of the animals struck by the train was not killed, but was injured, and strayed away from the railroad, and was not found for several days.

The jury found for appellees, and the court rendered judgment in their favor for the value of the stock as found by the jury, but assessed the costs against appellees, and the railroad has appealed.

We think the plea in abatement should have been sustained, as appellees had but one cause of action, and had no right to split this cause of action into parts.

In Sutherland on Damages, page 381, (4th ed.) it is said ...