Opinion
33083.
DECIDED JUNE 26, 1950.
Action for damages; from Fulton Superior Court — Judge Shaw. February 20, 1950.
Grace W. Thomas, Lucile I. Milam, Durwood T. Pye, for plaintiff.
Parker Parker, for defendant.
1. A suitor cannot pursue at the same time against the same defendant a cause of action based upon the same subject-matter in two different courts, and a plea in the second suit of pendency of the former suit will be sustained and such second action abated.
DECIDED JUNE 26, 1950.
On August 3; 1949, Rosemary Lyons Jones brought her suit in the Superior Court of Fulton County against Rich's Inc. for damages on account of the defendant's alleged breach of an oral contract of employment with her. To this action, the defendant filed a plea in abatement, setting up therein that at the time the plaintiff filed this suit in Fulton Superior Court, there was pending in the City Court of Decatur a cross-action set up by the plaintiff to an action on open account which had been brought by the defendant against the plaintiff and her husband, Hardiman Jones, involving the same subject-matter as the suit in Fulton Superior Court, namely the breach by Rich's Inc. of a contract of employment entered into by it with the plaintiff which suit was filed in the City Court of Decatur on March 18, 1949, and which cross-action of the plaintiff was interposed on May 18, 1949. Both the suit filed in Fulton Superior Court and the cross-action in said city court involved an oral contract by which Rich's Inc. had employed the plaintiff as its radio director in charge of its radio advertising programs, and the subsequent breach thereof by Rich's Inc. whereby the plaintiff was injured and damaged. In this cross-action the plaintiff alleged that the defendant had terminated said contract of employment without any cause and that it had been guilty of bad faith in relation thereto. She set up that the defendant by reason of its wrongful breach of this contract had injured her reputation as a radio director, which was her chosen profession, and in which capacity she was employed by the defendant. She set out therein in that while said contract was not in writing and was for more than one year, being for her lifetime, it was not within the statute of frauds, in that she had partially performed same and that under the facts, unless Rich's Inc. was compelled to perform same, a fraud would be perpetrated. She sought, in addition to the value of the contract to her, which she set up was $131,896, to recover a reasonable sum for attorney's fees and expenses of litigation, and she also prayed for any legal and equitable relief to which she might be entitled. By amendment to her cross-action, the plaintiff set up that Rich's Inc. "has noted bad faith in the transaction, particularly in telling her that it was unnecessary to reduce the contract to writing, and in wrongfully and summarily discharging her without reason, cause or justification, which breach of said contract defendant has been compelled to accept." She set up that the sum of $131,896, claimed as damages, was stricken and that she recover $75,000 damages and also the expenses of this litigation, including $5000 attorney's fees. The plaintiff further amended said cross-action by adding count two, in which she prayed that she recover $25,000, less any setoff due by her to Rich's Inc., and that she have such other and further relief as she might be legally or equitably entitled to in the premises. The plaintiff further amended said cross-action by adding count three, in which she alleged that the defendant acted in bad faith in the transaction as she had alleged in count one of the amended cross-action, and prayed for $5000 general damages, $5000 attorney's fees and expenses of litigation, and $15,000 the value of the job she had in Macon and relinquished to accept the place with the defendant, together with the sum of $20,000, which she would have earned as a freelance writer, which she would have continued to earn but gave up when she made the contract sued on, and also $100 as expense in moving her furniture from Macon to Atlanta, $700 for living at the hotel here, and $2000 which she lost in selling her home in Macon. She prayed for judgment for $47,800, less any setoff which might be due by her to the defendant.
In her petition in the Superior Court of Fulton County, the plaintiff set up count one, in which she sought $75,000 damages and all expense of the litigation and counsel fees, count two, in which she sought $25,000 damages, together with cost of litigation, count three in which she sought $47,800, as damages, based on the same items as she set out in count three to the cross-action in the City Court of Decatur.
It was stipulated between the parties that the case was to be tried before the court without a jury on the plea in abatement on the sole ground of pendency of a former suit between the same parties arising out of the same cause of action, and that photostat "copies of plaintiff's pleadings, filed as defendant in a cross-action in Decatur, having been filed in this court with the plea in abatement, it is hereby further agreed that no objection will be made by either party to the tender of carbon copies of the remainder of the record of the suit in the City Court of Decatur, which suit is the subject matter of the plea in abatement, provided the court shall desire the entire record before it in determining the merits of the plea in abatement based on pendency of the former suit."
Thereafter, the Honorable Claude D. Shaw, judge, sitting without a jury, sustained said plea and dismissed the plaintiff's petition in Fulton Superior Court. To this judgment the plaintiff excepts.
From the bill of exceptions it appears that the plaintiff sought to introduce on the hearing of the plea in abatement, certain portions of the record in the City Court of Decatur litigation, such as the defendant's demurrers and order extending time for pleading and order postponing case, which the trial judge disallowed. This court will consider no portion of the record in the case in the City Court of Decatur which was not part of the record in the case on which the court based its order and judgment sustaining the plea in abatement.
"No suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former shall be a good defense to the latter, if commenced at different times." Code § 3-601. This section is to be considered and applied along with § 3-607, which provides that "A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement, but if the first action is so defective that no recovery can possibly be had, the pendency of a former suit shall not abate the action." Under the provisions of these sections, the suit brought by the plaintiff in Fulton Superior Court must be abated because of the pendency in the City Court of Decatur of the cross-action, if the causes of action are the same and by the same plaintiff against the same defendant, unless the city court wherein the case is pending has no jurisdiction of the issues presented by the cross-action therein or unless such action is so defective for any reason that no recovery can possibly be had on the same. The plaintiff brings her action in Fulton Superior Court without any dismissal prior thereto of the cross-action interposed by her to the suit in said city court. There are therefore two actions between Rosemary Lyons Jones and Rich's Inc. being simultaneously prosecuted in two different courts of this State. That the subject-matter of the two pending cases is the same cannot seriously be questioned. In each action, Rosemary Lyons Jones seeks to recover because of Rich's alleged wrongful refusal to continue her employment with it as radio director and its wrongful breach of the contract which she alleges she had with it, under which she was to be employed during her lifetime by Rich's as its radio director. She seeks damages in each action on the same grounds and each case involves the same items and elements of damage and injury claimed by her, which she sets out were caused by and resulted from and would result from Rich's wrongful termination of her contract of employment with it. Therefore, we have pending in different courts at the same time two alleged causes of action involving the same subject-matter and between the same parties. The plea in abatement filed in the Superior Court of Fulton County is well taken, under the provisions of the above statutes, unless it shall appear that the City Court of Decatur has no jurisdiction or that the "first action is so defective that no recovery can possibly be had." Clearly the plaintiff "may not prosecute two actions in the courts at the same time, for the same cause, and against the same party." The provisions of Code § 3-601 are mandatory and they are plain and unmistakable. The pendency of the first action "shall be a good defense to the latter." The case cited by the defendant in error in its brief goes into the origin and history of the rule pronounced in these Code sections, and is the leading authority in Georgia on this question: Wilson v. Atlanta Knoxville c. Ry. Co., 115 Ga. 171 ( 41 S.E. 699). The pendency of a prior action for the same cause of action between the same parties is good ground to abate the former. Hamlin v. Jones, 41 Ga. App. 91 (3) ( 151 S.E. 815); Powell v. Powell, 179 Ga. 817 ( 177 S.E. 566). Such second suit may be abated where both of the suits are for the same cause of action and are between the same parties. Bird v. Trapnell, 148 Ga. 301 ( 96 S.E. 417); Hines v. Moore, 168 Ga. 451 (8) ( 148 S.E. 162).
The plaintiff here like the plaintiff in House v. Benton, 42 Ga. App. 97 ( 155 S.E. 47), was the defendant in the former action and set up by way of cross-action in that case the damages sought later in a direct action in another court, the damages in each instance being the same items of injury and resulting from the same wrongful act. The two causes, the one set up in the cross-action and the one later embraced in a direct suit by the defendant in the cross-action against the plaintiff in that suit, are the same and the parties are the same, hence there was a plain violation of the principle of law of these Code sections.
This case does not present any case of the election of remedies. It is only when a person has conflicting and inconsistent remedies for the same wrong that election and prosecution of one to a favorable or adverse decision is a bar to the others. Sparks Hutson v. Fort, 29 Ga. App. 531, 537 ( 116 S.E. 227); Stokes v. Wright, 20 Ga. App. 325 (2) ( 93 S.E. 27). We do not have that situation here. A person could have a right to sue on the contract or to sue in tort, for instance, growing out of the same wrongful act of another. In such a case, the election to prosecute the tort claim would absolutely bar the right thereafter to sue the defendant on the contract. For a treatment of this principle see Board of Education of Glynn County v. Day, 128 Ga. 156 ( 57 S.E. 359).
We have here the prosecution in different courts at the same time of two cases between the same parties involving the same subject-matter. Obviously the plaintiff should not be permitted to proceed with both cases. It is not a question of election of remedies, but a question of having filed and pending against the same defendant and at the same time the same cause of action in two courts. That the two causes of action involve the same subject-matter — that the same evidence would be necessary to sustain either of them — that an adjudication on the merits of one would conclude further action on the other (Code § 110-501) — admits of no argument. The contract, set up as the basis of the cause of action embraced in the cross-action pleaded as a setoff against Rich's Inc., in the suit against Rosemary Lyons Jones and her husband in the City Court of Decatur, is the identical contract between the plaintiff and the defendant that is the basis of the suit filed in Fulton Superior Court. The plaintiff seeks the same elements and items of injury and damage in the superior court case as she does in the pending cross-action in said city court. The plaintiff does not seek by her petition equitable relief, but her action is simply one for damages alleged to have been occasioned as the direct result of the alleged breach of her contract of employment with Rich's Inc. It is true that she seeks to recover the value of this contract to her and the damages sought are predicated thereon and also certain expenses and costs which she would not have incurred but for this contract with said Rich's Inc., and its wrongful termination by the latter, and that she seeks to recover attorneys' fees and expenses of the litigation, basing her claim therefor on Rich's alleged bad faith in the transaction and its wrongful discharge of her from its employment, without any cause. The plaintiff also alleges that in breaching this contract of employment with her, Rich's Inc. injured her reputation as a radio director of commercial advertising programs. Her action is not one of slander, however. She merely sets out the various elements in which Rich's Inc., has and will inflict upon her as such radio director. This court is not adjudging, nor is it called upon so to do, whether or not all of the items set up by the plaintiff in her cross-action and in her petition in Fulton Superior Court are recoverable in an action on this contract. We simply rule that the two causes of action are the same, and that the plaintiff cannot maintain both of them, and that, in such circumstances, the defendant's plea in abatement, timely interposed, was properly sustained by the court in which the second suit was brought.
A dismissal by the plaintiff of her cross-action in the City Court of Decatur would not be permissible after the filing of the second suit in another court, and she could not thus avoid the plea in abatement filed to the second suit. It was a good plea. There was another suit pending. Singer v. Scott, 44 Ga. 659.
This is not a case where there was a mistaken remedy, which is never a bar to an appropriate one being sought by the plaintiff (See Floyd v. Morgan, 62 Ga. App. 711, 9 S.E.2d 717), but it is a very clear case of where the plaintiff is pursuing at the same time in different courts the same cause of action against the same defendant. The two causes of action are on all-fours and identical. The fact that the plaintiff's husband was a party defendant along with the plaintiff in the case in the City Court of Decatur on open account does not make the pending cross action in the City Court of Decatur one between parties different from those in the second suit brought by the plaintiff against the defendant, Rich's Inc., in Fulton Superior Court.
But it is urged by Rosemary Lyons Jones that where "the first action is so defective that no recovery can possibly be had," the plea in abatement is not good, and that in the case at bar the plaintiff was not entitled to set off the alleged cause of action for damages, which she claimed against Rich's Inc., in said City Court of Decatur, a court of law, without equitable jurisdiction, and that the plaintiff, Rich's Inc. in the city court case had demurred to her cross-action on such grounds. In Wilson v. Atlanta Knoxville c. R. Co., 115 Ga. 179, 180 (supra), the Supreme Court in dealing with the above proviso in Code § 5094 (§ 3-607), held: "It seems to follow incontrovertibly from what has been said that the only reasonable rule is, that save when — because of void process; failure to comply with statutory conditions precedent to bringing suit; instituting the action in a court having no jurisdiction of the subject-matter thereof; failure to give the suit a standing in court, by omitting to perfect legal service; or because of other like reasons, which the defendant is bound to know render it unnecessary to appear and plead, — the first suit is a wholly abortive effort, which the defendant is not legally called upon to resist at all, and therefore is really for the first time impleaded by the filing of another action which does render imperative his making a defense, the plea in abatement should be sustained." The action embraced in the cross-action pending in the City Court of Decatur does not on its face appear to be so abortive as to not require a defense thereto, and which, if evidence is adduced to sustain the allegations thereof and a verdict returned thereon in favor of the plaintiff, Rosemary Lyons Jones, against Rich's Inc., the verdict would be illegal and would not stand. In the Wilson case, supra, p. 182, the court said "We think that an inevitable conclusion from the foregoing is, that the phrase `if the first action is so defective that no recovery can possibly be had, the pendency of a former suit will not abate the action,' manifestly means that the first action must be so defective upon its face that a legal recovery cannot be had thereon." (Italics by the court.) The present case does not fall within the above category.
This was not a case where it appears on the face of the proceedings that the first action was instituted in a court that had no jurisdiction of the subject-matter, in which event the nonjurisdiction of the first court can be determined by the court in which the second suit was instituted, but it is a case where the City Court of Decatur had jurisdiction of the subject-matter and judgment rendered by it on the cross-action would not be void. The effect of the decision by the Superior Court of Fulton County sustaining the plea in abatement on the ground of the pendency of the case in the city court is an adjudication that such action in the City Court of Decatur is not void. Atlanta, Knoxville c. Ry. Co. v. Wilson, 119 Ga. 781, 786 ( 47 S.E. 366).
There is nothing in such decisions as Hawthorne v. Pope, 51 Ga. App. 498 ( 180 S.E. 920); Holston v. Vonberg, 34 Ga. App. 298 (2) ( 129 S.E. 562); Cantrell v. Davis, 46 Ga. App. 710 ( 169 S.E. 39); s. c. 176 Ga. 745 ( 169 S.E. 38), and others cited by the plaintiff in error, to the contrary of our holding in the case sub judice. It does not appear on the face of the record in the case in the City Court of Decatur showing that a recovery on the cause of action embraced in Rosemary Lyons Jones' cross-action is legally impossible.
There is no merit in the contention that the judge trying the plea in abatement erred in not having the entire record in the case in the City Court of Decatur before him, that is, the demurrers, orders continuing the case and allowing time for pleading, etc. It appears from the stipulation that the court could call for such other portions of the record in the case as the court deemed necessary. Furthermore, whether the case of action set up in the City Court of Decatur was not void was to be determined by what appears from the petition and cross-action in the city court case — on the face of the records — and not from what the plaintiff in that court might contend appears from the cross-action, or the construction on these allegations put on it in that court.
It follows that the superior court properly sustained the plea in abatement in Fulton Superior Court and dismissed the case of the plaintiff, Rosemary Lyons Jones, brought against the defendant therein, Rich's Inc., on the ground of a former action pending in the City Court of Decatur.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.