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Chamberlain v. Mo.-Ark. Coach Lines, Inc.

Supreme Court of Missouri, Division One
Oct 4, 1945
354 Mo. 461 (Mo. 1945)

Summary

In Chamberlain v. Mo-Ark Coach Lines, 334 Mo. 461, 189 S.W.2d 538, we held that plaintiff did not split his cause of action, so as to be barred from suing for personal injuries sustained when [400] his automobile collided with defendant's bus, because he had separately sued and recovered for wrongful death of his wife in the same collision.

Summary of this case from General Exchange Ins. Corp. v. Young

Opinion

No. 39420.

October 4, 1945.

1. ACTIONS: Torts: Separate Causes of Action From Same Transaction. Several separate causes of action may arise out of the same transaction, including two or more causes of action growing out of a single tort.

2. ACTIONS: Rule Against Splitting Causes of Action. The rule against splitting a cause of action applies to bringing separate suits for different elements of damage under the same cause of action and not to bringing separate suits on separate causes of action arising out of the same transaction or occurrence.

3. ACTIONS: Torts: Negligence: Wrongful Death: Cause of Action Not Split: Joinder Not Mandatory. Plaintiff's claim for the wrongful death of his wife is a separate cause of action from his claim for personal injuries arising out of the same accident. It was permissive but not compulsory for the two actions to be joined, and plaintiff did not split his cause of action for personal injuries by bringing a separate action for the death of his wife.

4. APPEAL AND ERROR: Judgments: Negligence: Fact of Negligence Res Judicata: Insufficient Record: Point Not Ruled. While a fact issue decided in a prior case between the same parties may not be relitigated, the record does not present the issue of whether the finding of negligence in the prior action for wrongful death of plaintiff's wife is res judicata on the issue of negligence in plaintiff's subsequent action for personal injuries growing out of the same accident.

Appeal from Jackson Circuit Court. — Hon. John R. James, Judge.

REVERSED AND REMANDED.

Roger C. Slaughter and Frank O. Knight for appellant.

(1) The appellant's cause of action for the death of his wife and the claim upon which the present suit is brought are separate and distinct causes of action, and the court erred in sustaining respondent's amended demurrer and entering judgment thereon upon the theory that appellant had split his cause of action. Shaffer v. Rock Island Ry. Co., 300 Mo. 477, 254 S.W. 257; State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51; Jordan v. St. Joseph Ry. L., H. P. Co., 335 Mo. 319, 73 S.W.2d 205; Sec. 3652, R.S. 1939; 1 C.J.S., p. 1184, sec. 63, p. 1332. sec. 104c; 16 Am. Jur. 105, sec. 155; Nanney v. I.H. Shell Son, 138 S.W.2d 717; Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S.W. 851; Glasgow v. St. Joseph, 184 S.W.2d 412; Meyer v. Pevely Dairy Co., 333 Mo. 1109, 64 S.W.2d 696; Southern Ry. Co. v. King, 160 F. 332, 87 C.C.A. 284, affirmed 30 S.Ct. 594, 217 U.S. 524, 54 L.Ed. 868; Marcus v. Huguley, 37 S.W.2d 1100. (2) Joinder of causes of action is permissive, not mandatory, except as the court has jurisdiction to require consolidation, and the court erred in sustaining respondent's amended demurrer and entering judgment thereon, because the court thereby ruled, in effect, that appellant was compelled to join separate and independent causes of action in the same suit. Secs. 917, 1094, R.S. 1939; Flaherty's Admr. v. Taylor, 35 Mo. 447; Danciger v. Amer. Express Co., 192 Mo. App. 106, 179 S.W. 806; Wheless v. Serrano, 121 Mo. App. 17; Ormsby v. A.B.C. Fireproof Warehouse Co., 221 Mo. App. 779, 288 S.W. 959; 1 C.J.S., p. 1311, sec. 102, p. 1224, sec. 77; 1 Am. Jur., p. 456, sec. 66, p. 480, sec. 96; 34 C.J. 836, sec. 1246; Winters v. St. L. S.F. Railroad Co., 124 Mo. App. 600, 101 S.W. 1116. (3) Judgment in the death case, being upon a different cause of action, does not bar the present suit, but is conclusive as to the issues actually tried between the parties in that suit, and the court erred in sustaining respondent's amended demurrer to the first count of appellant's amended petition upon the ground that said Count I does not state facts sufficient to constitute a cause of action in favor of appellant and against respondent. In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; State ex rel. Gott v. Fidelity Dep. Co. of Maryland, 317 Mo. 1078, 298 S.W. 83; Case v. Sipes, 280 Mo. 110, 217 S.W. 306; 2 Freeman on Judgments (5 Ed.), p. 1429, sec. 677, sec. 688, p. 1450; Cromwell v. County of Sac., 94 U.S. 351, 24 L.Ed. 195; Restatement of the Law of Judgments, American Law Institute, sec. 68, p. 296; 2 Black on Judgments (2 Ed.), sec. 609. (4) The first count of appellant's amended petition states a cause of action against the respondent, based upon res adjudicata of the issues adjudicated in the death case, and the court erred in sustaining respondent's amended demurrer to such count and in entering judgment thereon. Shaffer v. Rock Island Ry. Co., 300 Mo. 477, 254 S.W. 257; In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; 16 Am. Jur., p. 105, sec. 155; 104 A.L.R. 1476, l.c. 1477; Jordan v. St. Joseph Ry., L., H. P. Co., 335 Mo. 319, 73 S.W.2d 205; Vaughn's Admr. v. L. N.R. Co., 179 S.W.2d 441; Keith v. Willers Truck Service, 64 S.D. 274, 266 N.W. 256, 104 A.L.R. 1471; Voorhees v. Chicago A.R. Co., 208 Ill. App. 86; Gibson v. Solomon, 136 Ohio St. 101, 23 N.E.2d 996, 125 A.L.R. 903. (5) The second count of appellant's amended petition states a cause of action against the respondent based upon the acts of negligence therein specifically alleged, and the court erred in sustaining respondent's amended demurrer as to such count and in entering judgment thereupon. Chamberlain v. Mo.-Ark. Coach Lines, Inc., 351 Mo. 203, 173 S.W.2d 57.

Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping Houts for respondents.

(1) The judgment should be affirmed if the demurrer to the petition was properly sustained on either ground. Givens v. Thompson, 110 Mo. 432, 443, 19 S.W. 833; Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32; Stone v. Cook, 179 Mo. 534, 78 S.W. 801; Bovard v. Jones, 142 S.W. 14; Fidelity Loan Securities Co. v. Moore, 280 Mo. 315, 217 S.W. 286. (2) The petition shows that the plaintiff split his action and is barred from maintaining the present suit by using and recovering a judgment for the death of his wife. Sec. 917, R.S. 1939; Tooker v. Mo. Power Light Co., 336 Mo. 592, 80 S.W.2d 691; Sec. 3681, R.S. 1939; Hunter Land Development Co. v. Caruthersville S. H. Co., 223 Mo. App. 132, 9 S.W.2d 531; Adams v. Thompson, 178 S.W.2d 779; Shaffer v. C.R.I. P. Ry. Co., 300 Mo. 477, 254 S.W. 257; Secs. 1015, 3652, 3653, 3654, R.S. 1939; DeGeofroy v. Terminal Ry. Co., 179 Mo. 698; Stigers v. St. Joseph, 166 S.W.2d 523; Young v. Telephone Co., 318 Mo. 1214, 3 S.W.2d 381; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; See v. See, 294 Mo. 495, 242 S.W. 949; Chamberlain v. Mo.-Ark. Coach Lines, Inc., 351 Mo. 203, 173 S.W.2d 57; Goodson v. National Masonie Accident Assn., 91 Mo. App. 339; Ruddle v. Horine, 34 Mo. App. 616; Ginnocchio v. Ill. Cen. R. Co., 264 Mo. 516, 175 S.W. 196.


This is an action for $30,000.00 damages for personal injuries. A demurrer to plaintiff's petition was sustained and plaintiff has appealed from the judgment of dismissal.

[539] The question for decision is whether plaintiff split his cause of action, so as to bar this suit, by separately suing and recovering for the wrongful death of his wife in the same collision, in Chamberlain v. Mo.-Ark. Coach Lines, Inc., 351 Mo. 203, 173 S.W.2d 57.

Plaintiff filed both suits on May 14, 1941. After affirmance of the judgment in the wrongful death case, plaintiff filed an amended petition herein in two counts. The first count stated the filing and adjudication of the wrongful death case and alleged that it was res judicata of the issues of actionable negligence of defendant and lack of contributory negligence of plaintiff. The second count was based only on the facts of the occurrence.

Plaintiff contends that his claim for damages for the death of his wife and his claim for damages for his personal injuries are separate and distinct causes of action, and that their joinder in the same suit is permissive and not mandatory. Defendant's position is that all claims for damages arising out of the same transaction or occurrence must be brought in one suit.

Defendant's position is too restricted. For example, several promissory notes may grow out of the same transaction, yet they constitute separate causes of action which can be separately maintained. [See 1 Am. Jur. 482, sec. 97.] Likewise, "the general rule is that an action for wrongful death is not precluded by a recovery in an action previously brought by the beneficiary for personal injuries to himself resulting from the same act of negligence which is alleged to have caused the death." [16 Am. Jur. 105, sec. 155: Annotations 104 A.L.R. 1477, 125 A.L.R. 909; 1 C.J.S. 1329, 1333, sec. 104.] So also, "where two persons are killed at the same time by the act of another, a recovery for the killing of one is not a bar to an action against the same defendant for the killing of the other, although the same person brings both actions as administrator, and the beneficiaries are the same in both actions." [25 C.J.S. 1150, sec. 49.] There are also other situations in which several causes of actions have been held to arise out of a single tort, such as assault and slander [Spillman v. Freymann (Mo. App.), 246 S.W. 976]; injuries to both wife and child by the same wrongful act [Edgar v. Citraro (Cal.App.), 297 P. 653; see also Bradley v. Andrews, 51 Vt. 525]; a husband's action for wrongful death of his wife and an action for loss of consortium and expenses up to the time of her death, resulting from the injuries which caused her death [Mageau v. Great Northern R. Co. (Minn.), 115 N.W. 651, 15 L.R.A. (N.S.) 511, 14 Ann. Cas. 551]; and a husband's action for his own injuries and an action for loss of his wife's consortium resulting from injuries to her caused by the same wrongful act. [Skoglund v. Minneapolis Street Ry. Co. (Minn.), 47 N.W. 1071, 11 L.R.A. 222.] Tennessee has held the other way on the converse of this latter situation in Johnston v. Southern Ry. Co., 299 S.W. 785, 55 A.L.R. 932. [See discussion in 27 Am. Jur. 119, sec. 517.]

The rule against splitting a cause of action applies to bringing separate suits for different elements of damage of the same cause of action and not to bringing separate suits on separate causes of action arising out of the same transaction or occurrence. "One may bring separate suits on separate causes of action even if joinder of the separate causes in one action is permissible, subject, however, to the power of the court to order consolidation". [1 Am. Jur. 480, sec. 96; See also 1 C.J.S. 1306, sec. 102.] An example is cases of personal injury and damages to property caused by the same tort. "The rule followed in a majority of the states is that a single wrongful or negligent act or omission causing an injury to both the person and the property of the same individual, constitutes but one cause of action with separate items of damage; hence the cause of action cannot be split, and a recovery of a judgment for either item of damage may be pleaded in bar of an action to recover for the other item of damage." [Annotations 64 A.L.R. 663, 127 A.L.R. 1081.] However, the English rule, which is followed in some American states, is "that damage to goods and injury to the person, although the result of the same wrongful act, are infringements of different rights, and give rise to distinct causes of action; hence, a recovery under one cause of action cannot be pleaded in bar of a recovery on the other cause of action." [64 A.L.R. 670.] Missouri, as shown by this annotation, follows the majority rule in this situation. Therefore, the decisive question here is whether or not an action, under our wrongful death statute, is a separate action or can be classed as only a separate item of damage (along with personal injuries [540] and destruction of property) resulting from a single tort.

Defendant relies principally upon Tooker v. Missouri Power Light Co., 336 Mo. 592, 80 S.W.2d 691. [Citing also Hunter Land and Development Co. v. Caruthersville S. H. Co., 223 Mo. App. 132, 9 S.W.2d 531; and Adams v. Thompson (Mo. App.), 178 S.W.2d 779.] The Tooker case was ruled partly upon election of remedies (damages rather than recovery of possession); and, plaintiffs therein, having elected to sue for damages, it was held that (not being entitled to recover under the treble damage statute) all damages to their land from the trespass and appropriation not included in such action were barred. The second suit for additional damages was dismissed. The Hunter Land Development case was also a case of recovery of only part of the damages sustained from wrongful entry upon land; plaintiff suing only for a part of the timber wrongfully cut by defendant on its land. For the reasons hereinafter stated we cannot agree with the statement made arguendo in Adams v. Thompson, supra, to the effect that separate actions for damages to plaintiff's automobile and for the wrongful death of his wife would be splitting his cause of action.

Plaintiff's claim for the wrongful death of his wife is unquestionably a separate and independent cause of action from his claim for his own injuries. We so held in Shaffer v. Chicago, Rock Island Pacific R. Co., 300 Mo. 477, 254 S.W. 257. It is now well settled by our decisions that this action is "new in its species, new in its quality, new in its principle, in every way new", because the very purpose of our statute "was to give a cause of action where none existed at common law." [Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920; See also State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51; and Jordan v. St. Joseph Ry., L.H. P. Co., 335 Mo. 319, 73 S.W.2d 205.] It arose at a different time in this case (when plaintiff's wife died) than did plaintiff's action for his own injuries. Moreover, this wrongful death action did not immediately vest in plaintiff, when it arose, but had to be appropriated by him within six months thereafter; and in the event of his failure to appropriate it, different parties would be entitled to it. [Secs. 3652-3654 (R.S. 1939) Mo. Stat. Ann.]

We have no statute which requires compulsory joinder of actions by a plaintiff. Sec. 917 (R.S. 1939) Mo. Stat. Ann., which was in force at the time both of these actions were commenced, is permissive only. [See Shaffer v. Chicago, Rock Island Pacific R. Co., supra.] By its express language, it authorizes but does not compel joinder of "several causes of action . . . where they all arise out of . . . the same transaction or transactions connected with the same subject of action." In the Shaffer case, we construed the word "transaction" to include "any occurrence or affairs the result of which vests in a party the right to maintain an action, whether the occurrences be in the nature of a tort or otherwise." Thus it is clear from the very terms of the statute that separate actions are not required to be joined even though they arise out of the same transaction. (Perhaps there should be either compulsory joinder or consolidation, now that our new code makes counterclaims compulsory when they arise out of the same transaction. Section 847.73 Mo. Stat. Ann., Code sec. 73, Laws 1943, p. 377.) We must, therefore, hold that plaintiff has not split his cause of action by bringing these two separate suits.

As to plaintiff's further contention that the former adjudication of the wrongful death action is res judicata of the issues of negligence in the present case, this is not presented by the record herein for decision on this appeal. The only ground urged by defendant in support of the trial court's ruling on its demurrer is that plaintiff was barred in this suit by splitting his cause of action. Since we have decided this against defendant, the cause must be remanded for trial. Plaintiff's petition still alleges negligence (which was not negligence of defendant's driver) not submitted in the wrongful death case. Defendant is certainly entitled to a trial on that issue, if plaintiff claims recovery on that ground. Furthermore, defendant might interpose different defense — for example, a release. However, the authorities cited by plaintiff show that the same fact issues decided in the wrongful death case cannot be relitigated between these same parties herein. [In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662; Kimpton v. Spellman, 351 Mo. 674, l.c. 682, 173 S.W.2d 886, l.c. 891; Vaughn's Adm'r. v. L. [541] N.R. Co. (Ky.), 179 S.W.2d 441; Keith v. Willers Truck Service, 64 S.D. 274, 266 N.W. 256, 104 A.L.R. 1471; Voorhees v. Chicago Alton R. Co., 208 Ill. App. 86; Gibson v. Solomon, 136 Ohio St. 101, 23 N.E.2d 996, 125 A.L.R. 903.]

The judgment is reversed and the cause remanded. All concur.


Summaries of

Chamberlain v. Mo.-Ark. Coach Lines, Inc.

Supreme Court of Missouri, Division One
Oct 4, 1945
354 Mo. 461 (Mo. 1945)

In Chamberlain v. Mo-Ark Coach Lines, 334 Mo. 461, 189 S.W.2d 538, we held that plaintiff did not split his cause of action, so as to be barred from suing for personal injuries sustained when [400] his automobile collided with defendant's bus, because he had separately sued and recovered for wrongful death of his wife in the same collision.

Summary of this case from General Exchange Ins. Corp. v. Young
Case details for

Chamberlain v. Mo.-Ark. Coach Lines, Inc.

Case Details

Full title:CHARLES W. CHAMBERLAIN, Appellant, v. MO.-ARK. COACH LINES, INC., a…

Court:Supreme Court of Missouri, Division One

Date published: Oct 4, 1945

Citations

354 Mo. 461 (Mo. 1945)
189 S.W.2d 538

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