Summary
rejecting a similar argument
Summary of this case from Ruiz de Molina v. Merritt & Furman Insurance Agency, Inc.Opinion
6 Div. 398.
June 2, 1921. Rehearing Denied June 23, 1921.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Pinkney Scott and Huey Welch, all of Bessemer, for appellants.
The court was in error in sustaining plaintiff's demurrer to plea B and in declining to give the affirmative charge. 146 Ala. 333, 40 So. 106; 160 Ala. 590, 49 So. 340; 200 Ala. 221, 75 So. 979; 172 Ala. 60, 55 So. 305; 146 Ala. 240, 40 So. 612; 62 Ala. 446; 19 Ala. 647, 54 Am. Dec. 203; 52 Ala. 506; 20 Ala. 320; 66 Ala. 129; 43 La. Ann. 1136, 10 So. 180; 2 Black on Judgments, § 782. The above authorities demonstrate that the court was in error in refusing the several charges requested by the defendant.
Goodwyn Ross, of Bessemer, for appellee.
Conceding that error intervened the ruling on the pleadings, that error cannot be availed of here, because of omission from the records of the trial and judgment at the former trial. 96 Ala. 515, 11 So. 695; 85 Ala. 598, 5 So. 252; 179 Ala. 436, 60 So. 861. The court was not in error in its rulings on the pleading. Section 3973, Code 1907; 203 Ala. 231, 82 So. 481; 11 Ala. App. 496, 66 So. 885; 160 Ala. 590, 49 So. 340; 58 Ala. 600; 123 Ala. 289, 26 So. 939. Counsel discuss other matters not touched on in the opinion.
On rehearing, in addition to the authorities above cited, they cite 150 Ala. 306, 43 So. 711, and 73 Fla. 1103, 75 So. 797, on the proposition above referred to.
It is a familiar principle of law that where there has been a judgment against one of two joint tort-feasors, followed by an acceptance of satisfaction of such judgment by the plaintiff, the judgment and satisfaction may be successfully pleaded by the other joint tort-feasor to the further maintenance of the suit by the same plaintiff involving the same cause of action. This rule also obtains notwithstanding there was no ligament of a common purpose binding the acts of the two if their acts of negligence united in causing the single injury to the plaintiff.
"A rational rule deduced from the authorities * * * would seem to be that, 'Where one has received an injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrong-doers are liable for damages occasioned by the injury.' It is also manifest that this single injury, in itself or of itself, indivisibly constitutes an indivisible cause of action. This is true, notwithstanding the fact that the party injured could maintain separate suits on this cause of action against the tort-feasors at the same time, and could have sued them jointly, and the mere pendency of suit or judgment without satisfaction could not be set up in defense by either tort-feasor. * * * But when she successfully prosecuted her single cause of action against one of the tort-feasors, and received satisfaction in full of the judgment, that was satisfaction for the entire injury, for the single cause of action, and after satisfaction, although it moved from only one of the tort-feasors no foundation remained for a suit against any one. Her cause of action was extinguished." McCoy v. L. N. R. R., 146 Ala. 333, 40 So. 106 and numerous authorities there cited.
See, also, Cooley on Torts p. 247, Matthews v. Delaware Co., 56 N.J. Law, 34, 27 A. 919, 22 L.R.A. 261.
"The conclusive presumption is that the full damages were awarded the plaintiff in the judgment that was satisfied. The cause of action being extinguished by the acceptance of satisfaction by the plaintiff, there is nothing to support the action against the defendant, even for the recovery of nominal damages." McCoy's Case, supra.
We think that the special pleas of the defendant bring this case under the influence of the rule above declared, for whether the conduct of the Cannons as set out in the first suit and that of the defendants in the present one was or was not joint or in concert, each was charged with causing or producing the same result, to wit, the death of the plaintiff's minor son. The pleas sufficiently describe and identify the suit and judgment against the Cannons and aver that the judgment had been paid and satisfied as well as the cost. Perkins v. Moore, 16 Ala. 17. See plea in McCoy Case, supra. The judgment and pleading in the first suit did not have to be set out in hæc verba; it is sufficient to set it out according to its legal effect. 11 A. E. of Pl. Pr. page 1127, Central Bank v. Veasey, 14 Ark. 671, 17 A, E. Pl. Pr. p. 935. The pleas did not have to negative a compromise judgment, or set up that the judgment was taken in full satisfaction of the plaintiff's cause of action against each and all of the wrongdoers. These defendants are not concerned with or bound by the terms or condition under which the first judgment was rendered, if the same has been satisfied. The plaintiff did not have to accept satisfaction of the judgment before the termination of the present suit, but when he did he could not qualify or limit the legal effect of same upon the present action. For, as above stated, it is a conclusive presumption of law that full damages were awarded the plaintiff in the judgment that was satisfied and the acceptance of satisfaction of said judgment by the plaintiff left nothing to support this action against these defendants.
While the defendants' special pleas A and B contained unnecessary repetitions and could have been shorter, they substantially and sufficiently set up facts which, if proved, would be a legal bar to the plaintiff's recovery in the present action, and said pleas were not therefore subject to any of the grounds of demurrer interposed to same, and which were erroneously sustained by the trial court. True, the pleader, while sufficiently describing and designating the former suit and judgment, made a futile attempt to make the same a part of the special pleas in the present case, but such abortive attempt merely made the same surplusage, and which did not therefore effect the pleas which were otherwise good and sufficient. Of course, had the pleas been insufficient without incorporating therein the pleading and judgment in the former suit, the omission of same should be raised by demurrer, but, as said pleas did not have to set out the judgment or pleading in the former suit in hæc verba, and sufficiently informed the plaintiff of the nature and character of the former suit and the result of same, the improper method of adopting the same as a part of the pleas was of no importance, was immaterial, and was therefore mere surplusage, and which should have been eliminated, if at all, by a motion to strike instead of demurrer. Davis v. L. N. R. R., 108 Ala. 660, 18 So. 687; Hightower v. Ogletree, 114 Ala. 94, 21 So. 934. On the other hand, should this be conceded to be a demurrable defect, the only ground of demurrer which attempts to raise the question is the tenth, and which is inapt as the record of the judgment was sufficiently set forth therein it being so described and identified as to meet the requirement of the rules of pleading.
Moreover, apart from the improper elimination of the defendants' special pleas, the plaintiff proved when a witness without objection or a limitation at the time, the judgment against the Cannons for the same cause of action, the satisfaction of same, and the payment of cost, and this should operate as a waiver of the defendants' failure to plead the same specially. Flandreau v. Downey, 23 Cal. 354.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.
Upon Rehearing.
Counsel for appellee seem to base their complaint against the foregoing opinion upon the grounds that it adheres to and quotes rather copiously from the McCoy Case, supra, and because of the fact that it does not allude to or discuss the case of Home Telephone Co. v. Fields, 150 Ala. 306, 43 So. 711, and other cases cited in their former brief. We thought the McCoy Case apt and in point, and as it cites cases from other jurisdictions as well as from our own court, covering a period of over 50 years, in line with said holding, we did not deem it necessary or proper to again cite them or to quote therefrom in the present opinion. Indeed, when a question has been well and finally settled by former decisions of this court subsequent decisions upon the same point should be as brief as possible, and not strung out to an unusual length by needless quotations and repetitions.
As to the failure to notice or comment upon the Fields and other cases cited, we meant no disrespect to the able counsel for the appellee, whose briefs are usually helpful and accurate, but felt that in this instance these cases were so inapt and foreign to the present case that an attempted differentiation was needless. The McCoy Case was not only in existence when the Fields Case and other cited by counsel for the appellee were decided, but the question there decided was in line with other cases there cited, and neither the court in the Fields Case nor the eminent counsel in same deemed said McCoy Case as of such similarity as to be noticed either in the opinion or briefs. They deal with entirely different questions, one with ordinary releases or receipts and the effect to be given same under the statute, and the other with judgments and the legal effect of the satisfaction of same upon other actions against joint tort-feasors, a question to which the statute as to releases and receipts does not apply.