The plaintiff be]ow, while attempting, with his wagon and team, to cross the track of the railroad company at Ball’s Crossing, in Washington County, was overtaken by a passing train and violently thrown from his wagon, whereby he sustained serious and permanent personal injuries. In said collision the wagon was demolished, the horses killed, and the harness broken.
The record discloses that, on December 15, 1891, the said Brigman commenced an action in .the Circuit Court at Jonesboro to recover damages, for the loss of the personal property, which resulted in a verdict and judgment at the April term, 1895, in favor of the plaintiff for the sum of $250. The company appealed in error to this Court.
It further appears that, on March 21, 1895, the said Brigman instituted another suit against the railroad company in the said Circuit Court to recover damages for personal injuries sustained by him in said accident. To the latter suit the company pleaded the general issue, and, in addition, filed two special pleas, viz.:
The present suit was tried at the August term, 1895, upon the general issues and the special pleas just recited. The trial .Judge charged the jury, among other things, as follows, to wit: “As to defendant’s second and third pleas, I charge you that, if you find plaintiff commenced a suit before the bringing of this suit, on December 15, 1894, against defendant for this, the same cause of action, and such suit was tried and determined upon its merits, then such pleas would be good, and you would find for defendant; but, before • these pleas of former suit could aid defendant, you must find that such
The trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $1,250. The company appealed, and the only error assigned is upon the charge of the Circuit Judge in respect of the effect upon this suit of the former suit to recover damages for the loss of the wagon and team. The argument of counsel for plaintiff in error is ‘£ that an entire claim or demand, arising out of a single. transaction, cannot be divided into separate and distinct claims, and two suits maintained, and that, in this respect, there is no difference between • action founded in tort and action upon a contract. ’ ’ He therefore insists that, if plaintiff sues for only a part of an entire cause of action, and obtains judgment for such part, in neither case can he maintain another action founded upon the same cause of action. The first judgment will be a positive bar to the subsequent actio o.
In support of his position, counsel cites Freeman on Judgments, in which it is said, viz.: ‘ £A single tort can be the foundation for but one claim for damages. . . . All damages which can, by any possibility, result from a single tort form an indi
Counsel for the plaintiff below concede the general proposition, but his insistence is that the same wrongful act may give rise to two or more causes of action. Counsel, in support of the proposition, cites Black on Judgments, in which it is said, viz.: ‘ ‘ While a party is not allowed to split up an entire and inseverable cause of action, and prosecute it by piecemeal, nor to present only a portion of the grounds on which relief is sought, and save the rest for a second suit if the first fail, yet this rule does not require that distinct causes of action, each ■ of which by itself would authorize independent relief, should be presented in a single suit, although they exist at the same time, and might be considered together.” Sec. 744.
The same author, at Section 740, says: “ We
We have thus presented the contentions of the respective parties, together with the authorities cited, which have been reinforced with arguments of great ability. We find, however", that, on account of the state of the pleadings, we are precluded from deciding the very interesting question presented.
In the first place, the plea in bar of res ad/judi-cata is not availing, for the reason that the former judgment pleaded was not final. The record discloses that when the second plea was filed, the judgment in the former suit had been appealed to this Court, and was still pending and undetermined. In order to sustain the plea of res adjudícala, it must be averred and proved that the former judgment was final.
Mr. Gibson, in Suits in Chancery, note to Sec. 333, says’: “This is manifestly not a plea -in bar logically considered, for, if successful, it does not bar the suit, but only abates it, and if, after the plea is allowed, the former suit is dismissed by the complainant, he can bring a third suit in the Court allowing the plea, against' the same parties and for the same purpose, and the dismissal of both or either of the former suits cannot be pleaded in bar of the third suit.” He admits, however, that, under the practice in Chancery, it is treated as in the nature of a plea in bar, and may be incorporated in an answer, since it does not go to the jurisdiction of the Court.
Mr. Chitty, in his work on Pleading, lays down the rule that the pendency of a former action must be pleaded in abatement. Yol. I., p. 453. Caruth-ers, in the History of a Lawsuit, classifies such a
Moreover, a plea in abatement cannot be pleaded at the same time with a plea in bar, for the plea in bar is inconsistent with the plea in abatement, and the latter is overruled by the former. Wood v. Belcher, 1 Yer., 105, 106; Grove v. Jenkins, 9 Yer., 7, 8; Waggoner v. Memphis Dry Dock Co., 10 Heis., 503.
We conclude, therefore, that the question presented in the plea in abatement, and which has been so elaborately argued by learned counsel, is not before this Court, since the plea in abatement was overruled or waived by the plea to the merits of the case.
Affirmed.