Estes v. Memphis & C. Ry. Co.

• Decision Date: 03 December 1928
• Docket Number: 27506
• Citation: 119 So. 199,152 Miss. 814
• Parties: ESTES et al. v. MEMPHIS & C. RY. CO. [*]
• Court: Mississippi Supreme Court

119 So. 199

152 Miss. 814

ESTES et al. v. MEMPHIS & C. RY. CO. ^[*]

No. 27506

Supreme Court of Mississippi

December 3, 1928

Division B

Suggestion of Error Overruled Dec. 22, 1928.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG Judge.

Action by Henry Estes and others against the Memphis & Charleston Railway Company. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Affirmed. Suggestion of error overruled.

Ernest Ligon and J. A. Cunningham, for appellants.

The demurrer to the special plea was founded upon the insufficiency of a special plea setting up as an estoppel, a former suit between the same plaintiff on account of the same wrong litigated against some other person than the one now declared against as a defendant. Plaintiff of course proceeds on the theory that it was really in fact the Memphis & Charleston Railway Company and its engineer whose negligence brought about the wrongs complained of, or that the instant defendant was so connected with the said injury as to be a joint tortfeasor, and jointly and severally liable.

The demurrer interposed on the theory that before a final judgment could work as an estoppel or bar another suit, it must not only be identical (1) as to the identity in the thing sued for; (2) identity in the cause of action; (3) identity of the quality in the person for or against whom the claim is made; but (4) must set up identity of persons to the action, both plaintiffs and defendants, and this the special plea of res adjudicata failed wholly to do. Creegan v. Hyman, 93 Miss. 481, 46 So. 952; Jones v. George, 126 Miss. 576, 89 So. 231; Bass v. Borries, 116 Miss. 419, 77 So. 189; Atlantic, Etc., Ry. Co. v. State, 85 So. 424; Clark v. Whitfield, 105 So. 200.

Our own public policy is well founded, and the principle is well presented by the conditions in the instant case. It happened, as revealed by the record, that the facts on the question of culpable negligence were locked within the breasts of the joint tortfeasors. The fact that on the trial of the case against one or more of them, the plaintiff could not successfully develop the truth, should certainly not bar him from the right to proceed against another tortfeasor when the truth shall present itself and give an opportunity for justice to prevail.

Ely B. Mitchell, for appellee.

Ordinarily, an estoppel by judgment is applied where parties are the same, or in privity with them, which include those who are responsible over, but an apparent exception to the rule of mutuality has been held to exist where the liability of defendant is altogether defendant upon the culpability of one exonerated in a prior suit upon the same facts, when sued by the same plaintiff; in such cases the unilateral character of the estoppel is justified by the injustice which would result in allowing a recovery against a defendant for conduct of another, when the other has been exonerated in a direct action. If the liability rests on the proof of wrongdoing by one, and the necessary facts to establish it have been found adversely in a prior proceeding a suit against another based on the same cause of action cannot be maintained. The principle underlying the doctrine of res judicata is more than to serve simply the interest of one who may see fit to invoke the rule; it is a measure of public policy, based on the principle that the general welfare requires litigation not to be interminable. It is for like reason that actions for damages may not be split up, and different suits be instituted for loss to person and property. 15 R. C. L. 965; 34 C. J. 984; Biglow v. Old Dominion Coal Mining & Smelting Co., 56 L.Ed. 1009; Portland Gold Mining Co. v. Stratton's Independence, 16 L. R. A. (N. S.) 677; Hardy v. O'Pry, 102 Miss. 214; Jenkins v. Atlantic C. L. Ry. Co., 86 S.C. 408, 71 S.E. 1010; Rockard v. Atlantic Air Line R. R. Co., 84 S.C. 65 S.E. 1047; Logan v. Atlantic Air Line R. R. Co., 82 S.C. 518, 64 S.E. 515.

ANDERSON, J. ETHRIDGE, P. J.

OPINION

ANDERSON, J.

Appellants, the father and mother and brothers and sisters of William Henry Estes, deceased, brought this action against appellee in the circuit court of Tishomingo county to recover damages for the alleged wrongful death of their son and brother, William Henry Estes, caused by one of appellee's passenger trains striking and running over deceased, crushing and mangling his body. Appellee interposed a special plea to appellants' declaration, to which appellants demurred, which demurrer was overruled by the court, and, appellants declining to plead further, final judgment was entered, dismissing their suit. From that judgment appellants prosecute this appeal.

Leaving off its formal parts, appellants' declaration follows:

"Henry Estes avers that he is a citizen of Tishomingo count, Mississippi; that Alice Estes, Dora Barrett, and Charley Estes are adult citizens of Tishomingo county, Mississippi; that Robert Estes is a minor resident citizen of Tishomingo county, Mississippi; that the Memphis & Charleston Railway Company is a domestic railroad corporation doing business in and maintaining its lines and existing in said county. Plaintiffs aver that William Henry Estes, late of said county, was the son of plaintiff, Henry Estes, who was his father, and of Alice Estes, who was his mother; that he was a brother of Mrs. Dora Barrett, Charles Estes, and Robert Estes. Plaintiffs aver that on the night of July 21, 1926, William Henry Estes, plaintiffs' decedent, was traveling east on the defendant railway company's right of way at a point about two miles west of Iuka, Tishomingo county, Miss., and where the public habitually travel with the knowledge and consent of the railway company, and for some cause the said decedent sat down upon the defendant railway company's track at said point and fell asleep, and the defendant railway company's passenger train No. 12, running east on this occasion, approached the scene where plaintiffs' decedent lay asleep upon its track, and decedent was discovered in said position of peril between its rails by the defendant railway company in charge of said train, to-wit, the engineer, S.E. Bradley, and after discovering said position of peril, the said agents and employees of the said defendant railway company willfully, recklessly, and negligently propelled the engine of said train upon and over the body of the said William Henry Estes thereby crushing, mangling, and otherwise injuring him, and brought him to his death, and also thereby greatly damaged plaintiffs and all the other parties in interest for whose benefit this cause is brought, all as a proximate result of the willful negligence of the employees of the defendant railway company in charge of said train. Wherefore plaintiffs brings this suit, and demand judgment of the defendant, Memphis & Charleston Railway Company, in the sum of thirty thousand dollars."

Appellee, in its special plea, to which appellants demurred, which demurrer was overruled as above stated, averred that appellants, under the law, should not maintain this action, for the following reasons: That all of the matters and things therein involved had been fully adjudicated by a judgment of the circuit court of Tishomingo county, rendered at its January term, 1927, in a cause therein pending numbered 982, wherein appellants were plaintiffs, and the Southern Railway Company and Steve Bradley were defendants; that the circuit court of Tishomingo county, in which said cause was pending, was a court, of competent jurisdiction to try and determine the cause under the Constitution and laws of this state; that the cause of action in that case was the identical cause of action which forms the basis of the present suit; that the declaration in said cause set out the same facts as a ground for recovery by appellants as are averred by the declaration in this cause; that said cause was tried resulting in a final judgment in favor of the defendants therein, the Southern Railway Company and Steve Bradley, the engineer operating the train which killed the deceased, William Henry Estes; that appellants knew, at the time of bringing said cause 982 in the circuit court of Tishomingo county, that the roadbed and tracks, on which the deceased was killed, belonged to appellee, the Memphis & Charleston Railway Company, a domestic corporation of this state. That passenger train No. 12, which ran over and killed the deceased, belonged to, and was operated by, the Southern Railway Company, the lessee of the Memphis & Charleston Railway Company; that the latter company alone owned the roadbed and tracks in this state, upon which the deceased was killed; that the entire equipment, including trains, belonged to, and was operated by, the employees of the Southern Railway Company, the lessee of appellee, the Memphis & Charleston Railway Company; that therefore said appellee had no connection with, nor control over, the passenger train which ran over and killed the deceased, nor of Steve Bradley, the engineer operating the same.

To the special plea there was attached, as exhibits thereto, all the pleadings and the final judgment rendered in the circuit court of Tishomingo county, in said previous cause No. 982. Appellants' demurrer to the special plea, as stated, was overruled, and, appellant declining to plead further, final judgment was rendered dismissing their suit. In the declaration in the first action, appellants alleged that the Southern Railway Company was a domestic corporation of this state.

If appellants' position in this case is to prevail, it must be upon the principle that appellee, by the lease of its roadbed and tracks to the Southern Railway Company constituted the latter its agent to operate the railroad, and it follows...