150 Ky. 564 | Ky. Ct. App. | 1912
Opinion op the Court by
Reversing.
One of the defenses pleaded and relied on by the appellee companies arises out of the fact that some months previous to the institution of this action the appellant and the appellee companies made up an agreed case, under section 637 of the Civil Code, reading as follows: “Parties to a question which.might be the subject of a civil action may, without action, státe the question and the facts upon which it depends, and present a submission thereof to any court which would have jurisdiction, if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall, thereupon, hear and determine the case, and render judgment as if an action were pending. ’ ’
In this agreed case it was set out in substance that the appellant, who was the plaintiff in the agreed case, was the owner of a growing crop of corn, which was materially injured by the explosion of the contents of a car of dynamite that was being transported by the appellees, who were the defendants in the agreed case, and that the corn was damaged to the extent of $100. It was further agreed that the plaintiff charged that the explosion occurred by reason of the negligence of the defendants in transporting the car. while the defendants denied tha't they were guilty of any negligence. It was further agreed that the evidence heard in the trial of the case of Stewart v. the defendants should he read and considered as a part of the agreed case. The court to which the agreed case was submitted rendered a judgment in favor of the plaintiff for the sum of $100.
In their answer to this action the appellees in one paragraph set out the facts in relation to the agreed case, and made the record in the agreed case a part of their pleadings. They further averred “that the damages which the plaintiff seeks to recover in this action were caused by' the same explosion which damaged the growing crop of corn in question in the agreed ease, and
To the paragraph of their answer pleading in bar of this action the agreed case and the pleadings therein, the appellant filed a general demurrer, but his demurrer was overruled, and declining to plead further, his petition was dismissed, and this appeal is prosecuted.
From the foregoing statement it will be seen that the only question for our decision is, was the agreed case and the proceedings had therein a bar to this action? In support of the judgment of the lower court holding that the agreed case and proceedings therein was a bar, counsel for appellees rely upon the case of Coles v. Illinois Central Railroad Co., 120 Ky., 686. In the Coles casé the action was brought by the administratrix of Coles against the railroad company to recover damages for killing a horse and demolishing a buggy which belonged to her intestate. For answer the railroad company set up that her intestate was killed in the same accident and at the ’ sam,e time that the horse was killed and the buggy injured, and that the administratrix had recovered against the railroad company for the death of her intestate, which judgment- had been’ paid. In rul
While agreeing entirely with what the court said in these cases, we do not think the principle there laid down is applicable to the facts shown by the record in the case we are now considering. The reason for denying the plaintiff the right to split up his cause of action and bring several suits when one would answer is to save the defendant from the vexation and cost of litigating in several actions what might have been litigated in one, and under this rule, when the plaintiff elects to bring a suit for a part only of that which might properly have been included in it and recovers a judgment, he cannot afterwards bring other or different actions to recover for what might have been included in the action brought for a part. If the appellant had brought an action against the appellees to recover damages for injury to his corn without including in his action the damage he was entitled to recover for the injury to his house and household goods, we would say that a recovery in the action for damages to the corn would bar an action to recover damages for the injury to his house
In our opinion the demurrer to so much of the answer as relied on the agreed case as a defense should have been sustained. Wherefore, the judgment is reversed, with directions for a new trial in conformity with this opinion.