Fewell v. New Orleans & N. E. R.

109 So. 853 | Miss. | 1926

^* Corpus Juris-Cyc References: Actions, 1CJ, p. 1118, n. 25. Assignments, 5CJ, p. 894, n. 14. Interest reipublicae ut sitfinis litium 33CJ, p. 267, n. 96. Judgments, 34CJ, p. 834, n. 72. Nemo debit cis vexari pro uno et eadem causa, 29 Cyc, p. 664, n. 52. In 1924 the appellant, W.L. Fewell, sued the appellee, railroad company, in cause No. 1043 in the circuit court of Lauderdale county, for the value of the contents of a building which was destroyed by fire caused by the negligence of the railroad company, and the appellant also filed another suit, No. 1044, in the same court, against the appellee, railroad company, for the value of the same building destroyed by fire on account of the negligence of the railroad company.

The suit, No. 1043, for the value of the contents of the building, was tried, and judgment recovered in favor of the appellant, Fewell, and, upon affirmance by the supreme court, the amount of the judgment was paid over to Fewell. The other suit, No. 1044, for the value of the building destroyed by fire, was then proceeded with, which is the case now before us. In the meantime it appears that Fewell assigned his interest in the suit for the loss of the building to the Bank of Pachuta, under section 496, Hemingway's Code (section 717, Code of 1906), and the suit progressed to trial in the name of the assignor, after the assignment had been filed with the papers in the instant case. The assignment was not acknowledged, as is required by the statute (section 498, Hemingway's Code; section 718, Code of 1906); nor was it filed with the papers in either case until after judgment and payment in the first case, No. 1043.

At the trial, the lower court sustained the plea of the appellee, railroad company, that recovery in the present suit was barred, because Fewell, the owner of all the property, had already recovered a judgment, in suit No. 1043, for the one cause of action for the loss of the contents of the building, and that the cause of action, to-wit, the negligent burning of the building and contents by the railroad company, could not be split, and when the appellant recovered in suit No. 1043 for the loss of the contents of the building, he being the owner of both the building and its contents, he should have claimed all of the elements of damage suffered by the one tortious act of the railroad company, and, having failed to do so, is now barred from recovery in the instant case, and likewise his assignee. We think the judgment of the lower court is correct."Interest reipublicae ut sit finis litium."

The one cause of action for damages on account of the burning of the building and its contents by the one wrongful act of the railroad company could not be split into two causes of action, one for one element of the damages, and the other for another element of the damages, all of which was caused by the one tort of the railroad company. This question is settled in the case ofKimball v. L. N. Railroad Co., 94 Miss. 396, 48 So. 230.

But the appellant contends that the rule against splitting causes of action does not apply in the case at bar, because the second suit, No. 1044, for the element of damage in the loss of the building, had been assigned to the Bank of Pachuta before trial, and the suit was proceeded with in the name of the assignor for the benefit of the assignee, and that, since the statute provides that "any chose in action or any interest therein" may be assigned, etc., it was permissible to assign to the Bank of Pachuta one element of damages in the cause of action, and that the recovery upon the other element — that is, the loss of the contents of the building — does not bar recovery in the suit for the loss of the building.

We think the position taken is unsound. The assignment of that element of damage, the loss of the building, to the Bank of Pachuta, cannot avoid the rule against the splitting of causes of action, for the reason that recovery by the injured party for one element of damage forecloses against the assignee all other elements of damage caused by the one tortious act of the railroad company, where notice of assignment is not given until after the recovery. If we concede that the assignment in this case was valid, not void because indefinite, and not void because not acknowledged as required by the statute, still it could avail nothing for the appellant, because it was not an assignment of an undivided interest in the claim, but was an assignment of one of the elements of damage of the claim, and notice of the assignment was not given, nor filed in the case, until after settlement of the amount of the recovery in the other suit, No. 1043.

We do not understand the statute on assignments to mean that different elements of damage of a claim may be assigned to many different parties, and that they may file as many different suits as there are assignees, where all of the damage grows out of the one wrongful act giving the one cause of action; but, if the statute is susceptible of such a construction, still notice of the assignment must be given the defendant before judgment and settlement in the pending suit is made. Notice was lacking here. Where the injured party is the owner of all of the elements of damage claimed to be due on account of the tortious act, he will not be allowed to split the cause of action into as many parts as there may be different elements of damage recoverable, which might result in a dozen different suits; but he must proceed to litigate for all of the elements of damage due for the one act of negligence, otherwise he will be barred from recovery for those elements of damage not presented, and his assignee of an interest in the cause of action will likewise be barred, where there has been a recovery and settlement for one element of the damage before notice of such assignment, as is the case before us."Nemo debet bis vexari pro eadem causa."

The judgment of the court below is affirmed.

Affirmed.