40 So. 106 | Ala. | 1905
This action is by Dollie McCoy, as the administratrix of the estate of Mattie Osby, deceased, against the Louisville & Nashville Railroad Company, for personal injuries resulting in the death of the plaintiff’s intestate, and which were received in a collision which occurred in- the village of East Birmingham between a locomotive of the defendant and a street car of the Birmingham Railway, Light & Power Company at a crossing of the two roads at grade. The plaintiff’s intestate 'was a passenger on the street car. The complaint in one count ascribes the collision to the negligence of the defendant. In other counts the collision is ascribed to the wanton or willful conduct of the defendants servants.
We understand that the principle above stated is conceded by the appellant to be correct. She insists, however, that the principle is not applicable to the case at bar. Her insistance is stated in the brief of counsel in this language: “The two corporations, whose negligence caused the death of the deceased, were, not joint tortfeasors. Where there is a wrong in which several join, without concert, they are not joint feasors, and therefore a release of one is not a release of all.” The view we take of the case renders it unnecessary for us to determine the joint liability vel non of the two companies. The authorities cited in the briefs of counsel, together with the case of Richmond & Danville R. Co. v. Greenwood, 99 Ala. 501, 14 South. 495, may be consulted with profit by any one desiring to prosecute that inquiry.
Reading the complaint and the plea together, it clearly appears that, whether there was the ligament of common purpose binding the acts of the two companies together or not, their acts of negligence united in causing the single injury to the plaintiff. A rational rule deduced from the authorities supra 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 indivisible, 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. So in the case at bar two companies were tort-feasors,' and whether
In the case of Cleveland v. City of Bangor, 87 Me. 259, 32 Atl. 892, 47 Am. St. Rep. 326, with respect of satisfaction by a tort-feasor not jointly liable with another, it was said: “But with regard to the point Tinder consideration no sound reason has been given, and it is believed none can be assigned, for such a distinction between the case of wrongdoers who are jointly-and severally liable and of those who are only severally liable for the same injury. In either case the sufferer is entitled to but one compensation for the same injury, and full satisfaction from one will operate as a discharge of the other.”— Brown v. Cambridge, 3 Allen 474; Abb v. N. P. R. Co., (Wash.) 68 Pac. 954, 58 L. R. A. 293, 92 Am. St. Rep. 864. In Lovejoy v. Murray, 3 Wall (U. S.) 1, 18 L. Ed. 129, Justice Miller for the court said: “But when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience that the law will not permit him to recover again for the same damages.” In the case of Vandiver v. Pollak, 107 Ala. 551, 19 South. 181 (54 Am. St. Rep. 118), Chief Justice Brick-ell for the court said: “It is merely elementary to say
The action was brought under section 27 of the Code of 1890 which is generally known as the “statute for the prevention of homicides.” The damages recoverable are punitive, and it has been ingeniously argued by appellant’s counsel that for this reason satisfaction of the judgment against the Birmingham Bailway, Light & Power Company cannot avail the defendant. We think the contention is unsound. As has been suggested by counsel for appellee: “To entitle the plaintiff to recover there must be a subsisting cause of action at the time the recovery is sought.” As we have held that there was but a single cause of action, the fact that the recoverable damages were punitive could add nothing to the cause of action. The conclusive presumption is that the full damages were awarded the plaintiff i'n 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. —Aldrich v. Parnell, 147 Mass. 409, 18 N. E. 170; Kearney v. Fitzgerald, 43 Iowa, 580. The plea was not open to the demurrer, and the court properly overruled it.
The court overruled the demurrer to the plea since the last continuance, the plaintiff declined to plead further, and judgment was rendered for the defendant on the plea and awarding all the costs against the plaintiff. All the costs which accrued in the case prior to the filing of the plea since the last continuance should have been adjudged against the defendant. We have but to correct
Corrected and affirmed.