| Miss. | Mar 15, 1914
delivered the opinion of the court.
Appellants sued appellee for negligently causing the death of William Sudberry, the minor son of one of the plaintiffs, the brother of the others. Defendant, appel-lee here, interposed the plea of not guilty, and also filed a special plea in bar, which plea avers that the plaintiffs and Wm. Sudberry, Sr., father of the deceased, had, before the institution of this suit, filed an action for the same cause of action before a justice of the peace, that final judgment was rendered in that suit against appel-lee, and that the judgment‘had been satisfied. To this plea in bar appellants replied by saying the suit in the justice court was instituted without authority from them ; that Wm. Sudberry, Sr., was notified by Julia Sudberry, one of plaintiffs, and mother of the others, not to make any settlement or institute suit for or on behalf of herself or children; that the said suit was a fraud upon their rights; and that same was begun by William Sudberry at the instance of an accident insurance company, which company carried for the defendant a policy of insurance on the lives of the employees of defendant, indemnifying defendant against the injury or death of its employees caused by the negligence of defendant. In short, the plea states that the suit in question was filed and conducted by the insurance company upon an agreement made beforehand that defendant would admit liability for two hundred dollars, and that the plaintiff was to get this sum by obtaining an agreed judgment for that amount against defendant. The record snows that a judgment by default was entered for the amount, and same was paid by defendant. Defendant demurred to this replication, and the demurrer was sustained by the court.
The demurrer admits that the judgment pleaded in bar was obtained by Wm. Sudberry, Sr., by agreement with
Chapter 167, Laws 1908, provides how and by whom actions of the soft here involved may be broug’ht, in these words: “The action for such damag’es may be brought in the name of the widow, for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one suit for the same death which shall inure for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. ’ ’
Any one of the relatives mentioned may file the suit, “or all parties interested may join in the suit, . . . . but the determination of such suit shall not bar another action unless it be decided on its merits.”
The legislature seems to have thought it was sometimes difficult to find all of the parties interested in cases of this kind, and for this reason, or for the reason that all parties interested may not agree to sue, the right to sue was given to any one of the parties mentioned, such suit to conclude all others, provided, the suit was decided upon its merits.
The engineers of the justice court proceedings were evidently aware of the necessity for having the judgment of a court upon which to base a plea of res judicata, and
Was the judgment obtained in this way such judgment on the merits as will serve to bar this action?
It is unnecessary to reach the conclusion that any actual fraud was intended in order to condemn the proceedings in question. If the statute is designed to protect the interest of all parties, and to this end requires a judicial determination of the rights of absent relatives, the judgment pleaded will not bar this action.
It is believed that it was the purpose of the legislature to prevent a multiplicity of suits, and to insure a square deal to all interested parties not participating in the trial of the case.
One can sue for and conclude all; but to conclude all there must be a decision — a judicial determination of the case on its merits — not merely an agreed judgment for a fixed sum absolutely insufficient to pay for killing a boy eighteen years of age.
If the defendant was liable at all, the amount of the judgment is so ridiculously inadequate as to raise a just suspicion of collusion, or, at least, an inference that the merits of the controversy formed no part of the decision of the court.
It is evident, if the replication states the facts, the merits were not considered, from whatever standpoint the question may be viewed. The plaintiff either had no cause of complaint, or the judgment was a compromise between old man Sudberry and the defendant, without regard to the merits; and in either event, the statute is not satisfied.
The statute, we believe, was designed to prevent one interested party from agreeing upon and collecting a sum
It is difficult to conceive that any court could decide this case on its merits and give judgment for two hundred dollars, for the wrongful killing of a boy — a sum less than the market price of a good mule.
It may be suggested that the justice of the peace rendered judgment for -the full amount sued for; but this fact serves only to make clearer the averments of the replication.
The trial court should have overruled the demurrer, because, if the replication states the facts, there is no escape from the conclusion that the judgment pleaded in bar of this action was not such a judicial determination of the merits as is required by the statute.
Reversed and remanded.