State v. Boyce

• Decision Date: 18 March 1890
• Citation: 19 A. 366,72 Md. 140
• Parties: STATE, TO USE OF BASHE ET AL., v. BOYCE.
• Court: Maryland Court of Appeals

19 A. 366

72 Md. 140

STATE, TO USE OF BASHE ET AL., v. BOYCE.

Court of Appeals of Maryland

March 18, 1890

Appeal from Baltimore city court.

Argued before ALVEY, C.J., and ROBINSON, IRVING, and MCSHERRY, JJ.

Harry W. Rusk and J. Alex. Preston, for appellants.

Wm. A. Fisher, Wm. C. Bruce, and D. K. E Fisher, for appellee.

MCSHERRY J.

There is but a single question involved in this appeal. It arises upon the following facts: The appellee owned a wharf which was under lease to the Consolidated Coal Company. By reason of the wharf being, as alleged, out of repair, Joseph Bashe was injured, and shortly afterwards died from the effects of that injury. The widow, children, and mother of the deceased brought suit against the coal company, the lessee of the wharf; and, while that suit was still pending and undisposed of, they brought another action for the same cause against the appellee, the owner of the wharf. Both suits were instituted in Baltimore city. To the declaration filed in the second action the appellee pleaded in abatement the pendency of the prior suit against the coal company. The appellants demurred to the plea, and the Baltimore city court entered judgment on the demurrer for the appellee. From that judgment this appeal has been taken.

In support of the plea, reference was made by the appellee to 1 Chit. Pl. 100; Boyce v. Bayliffe, 1 Camp. 60; and Rawlinson v. Oriett, Carth. 96. The text of Mr Chitty relies only on the case in 1 Camp., which was decided by Lord ELLENBOROUGH at nisi prius. The case in Carthew states that HOLT, C.J., dubitabit, but the other three judges inclined that the plea was good. Much as we respect the opinion of Mr. Chitty, we think the great weight of authority is against the sufficiency of the plea. The general rule is this: Where the two suits are for the same cause of action, and between the same parties, the pendency of the first may be pleaded in abatement of the second. The identity of the subject-matter and of the parties must be alleged, (Poe, Pl. & Pr. 502; Cook v Burnley, 11 Wall. 659; Bryan v. Scholl, 109 Ind. 367, 10 N.E. 107;) and the two suits must be pending in the courts of the same state, (Seevers v. Clement, 28 Md. 426.) Now, while the cause of action is alleged to be the same in both suits, the defendants are admitted by the plea to be different; and therefore the plea is undoubtedly bad, unless an exception to the general rule obtains in the case of joint tort-feasors. No reason is perceived for the existence of such an exception, and no authorities have been cited to support it other than those already alluded to. It may be regarded as very generally accepted law in this country that where two or more persons jointly commit an actionable tort the injured party may join them all in one action, or he may bring a separate action against each, though he can have but one satisfaction. He has his election de melioribus damnis. Nothing short of the satisfaction of a judgment obtained against one, or his release, will operate to defeat a recovery by the same plaintiff against another joint trespasser in a subsequent action founded on the same tort. Lovejoy v. Murray, 3 Wall. 1; Sheldon v. Kibbe, 3 Conn. 214; Morgan v. Chester, 4 Conn. 387; Sanderson v. Caldwell, 2 Aikens, 195; Blann v. Crocheron, 20 Ala. 320; Du Bose v. Marx, 52 Ala. 506; Knott v. Cunningham, 2 Sneed, 204; Page v. Freeman, 19 Mo. 421; Elliott v. Hayden, 104 Mass. 180; Woods v. Pangburn, 75 N.Y. 198. Why, then, should the mere pendency of another suit, which has not yet even ripened into a judgment, and which may never do so, abate a...