136 Ky. 446 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
The Maysville Street Railway & Transfer Company operated street cars in Maysville, with electricity, which was furnished to it by the Maysville G-as Company by wires connecting its dynamos with the wires of the Street Railway Company. One of the live wires of the Street Railway Company, while thus charged with a high power of electricity, was suffered to hang down in the street, and Isaac’Thomas, a negro hoy, was killed by it. An action was brought by his administrator to recover for his death,
After the judgment was affirmed by this court the surety in the supersedeas bond paid it off, and, as he was allowed to do under the statute, took an assignment of the judgment; the plaintiff executing to him the following: “ A. M. J. Cochran, having this day paid off in full the judgment of the Mason circuit court, rendered on the 19th day of June, 1902, in the
In Black on Judgments, Sec. 782, the rule on the subject is thus stated: “The plaintiff can have but one satisfaction for a joint wrong. And therefore if he recovers a judgment against one of the joint tort-feasors, and obtains satisfaction, that operates as a discharge of the others.” To the same effect, see note Abb v. N. P. R. R. Co., 92 Am. St. Rep. 855; Freeman on Judgments, Sec. 236; 17 Am. & Eng. Encyc. 865; 23 Cyc. 1494. The rule as above quoted was recognized by this court in Sodousky v. McGee, 4 J. J. Marsh, 269; and in United Society of Shakers v. Underwood, 11 Bush 265, 21 Am. Rep. 214, the court, after considering at length the authorities on the subject, said: “It thus appears that while the plaintiff may maintain separate actions and recover
When the plaintiff collected the amount of his judgment against the Gas Company from the surety in the supersedeas bond, he accepted satisfaction of the judgment. He no longer has a judgment against the Gas Company, for the benefit of it has been assigned to the surety. It is earnestly maintained for him that he may credit the amount so collected on his judgment against the Street Railway & Transfer Company; that he was entitled to collect from the Street Railway & Transfer Company the full amount of the judgment against it, and it will not be prejudiced in any way if this judgment is credited by what he has collected from the Gas Company. There is apparent force in this, but the great weight of authority is otherwise, and cogent reasons support the rule. The plaintiff’s cause of action was merged in his judgment. When his judgment was satisfied his cause of action was at an end. To allow him to maintain an action upon a cause of action which is satisfied would be an anomaly. He had his election whether he would collect the judgment against the Gas Company or the judgment against the Street Railway Company. He could not collect both. He made Ms election, and thus satisfied his cause of action. If the plaintiff has a joint cause of action for a tort against A., B., C., and D., and obtains a judgment against A. which he collects, to allow him, while holding this money, to proceed against B., C., and D. in the hope that he might obtain a larger judgment against one of them, and thus collect the excess, when he would lose nothing if his recovery was smaller, would be to extend
We attach no importance to the fact that the instructions given by the court on the trial of the case against the Street Railway Company were different from those given on the trial of the case against the Gas Company. On the first trial the court did .not give an instruction allowing punitive damages; on the second trial he did give such an instruction, but notwithstanding this, on the second trial the verdict was for $500 less than the first. The cause of action was the same on both trials.
Judgment affirmed.