Opinion
No. 33753.
September 25, 1939.
1. RELEASE.
Where daughter's action, brought through her mother as next friend, for injuries suffered in automobile collision, was settled by execution of a release limited in terms to any right of action by daughter or her parents for daughter's injuries, father's joinder in such release did not preclude father from bringing action for damages for loss of wife's services, society, and consortium, and for medical expenses, resulting from wife's injuries in the same collision.
2. COMPROMISE AND SETTLEMENT.
It is in accord with the public interest that parties may settle between each other as to all items in controversy which they can settle, so that any suit between them may thereupon be limited to the remaining items.
APPEAL from the circuit court of Simpson county; HON. EDGAR M. LANE, Judge.
George B. Cowart, of Brunswick, Ga., and Edwards Edwards, of Mendenhall, for appellant.
The court erred in sustaining the demurrer of the appellee to appellant's replication to the first special plea of the appellee. As to this assignment of error we say that the court erred in sustaining this demurrer for the reason the release exhibited to said demurrer shows upon its face that it was a release only of any cause of action that this appellant then had or might have by reason of the injuries sustained by his minor daughter, Lynnette Browne. And that to induce the appellee to pay the said Lynnette Browne the sum of $3000 in settlement of her suit the appellant and his wife executed said release. It is the contention of appellee that there was only one cause of action accruing to the appellant by reason of all of the injuries sustained by his wife, Mrs. Helen A. Browne and his daughter, the said Lynnette Browne, and it is contended by appellee that the appellant's right to sue for the injuries inflicted on Mrs. Helen A. Browne resulting in damages to him and also the injuries sustained by the said minor daughter resulting in damages to him constitute an inseparable cause of action and argue that a settlement of the claim he had against the appellee for injuries sustained by Lynnette Browne, resulting in damages to appellant, is only an element of the damages of the one and only cause of action. In this contention the appellee is in error.
Payne v. Moore, 89 So. 225.
Appellant in this case had a cause of action against the appellee derived from the injuries sustained by his minor daughter, Lynnette Browne, and also another cause of action derived from the injuries sustained by his wife, and the release pleaded in bar by the appellee in his first special plea was no defense to the suit of the appellant derived to him by reason of the injuries sustained by his wife, Mrs. Helen A. Browne, and the demurrer to the replication by appellant interposed by the appellee should have been overruled.
The court erred in not striking out the demurrer of the appellee to the appellant's replication to appellee's second special plea for the reason that said demurrer shows upon its face that it is frivolous.
We say this demurrer was frivolous for the reason that it is manifest that the suit filed by Mrs. Helen A. Browne as shown by the declaration and proceedings therein, did not conclude the rights of the appellant to maintain his suit herein filed by reason of the fact that in the said suit of Mrs. Helen A. Browne judgment was rendered against her. It will be seen that the appellant in this cause was not a party to this suit; he had no right to appear as a party in said suit. He, indeed, could not have been made a party to said suit; could not participate therein; could not control or conduct said suit; was not responsible for the cost of said suit and not being a party to the suit he was not bound by the judgment therein rendered.
Jones v. George, 89 So. 233; Creegan v. Hyman, 93 Miss. 893, 46 So. 954.
Husband can recover for the loss of consortium, property damage, and recover for hospitalization of his wife.
13 R.C.L., page 1416, par. 464.
Judgments or decrees are binding when all parties to the proceedings in which it was rendered.
Lipscomb v. Postell, 38 Miss. 476.
Butler Snow, of Jackson, and J.B. Sykes, of Mendenhall, for appellee.
If the lower court was right in sustaining the demurrer, then when the plaintiff declined to plead further, as set forth in the final judgment, then there can be no question but that it was proper that judgment final be rendered in favor of the defendant on said plea.
Scharff v. Lisso, 63 Miss. 213.
It is apparent that the replication to which the demurrer was sustained is an improper pleading. The legal sufficiency of the plea, or, that is, the legal effect of the release pleaded, should have properly been raised by demurrer to the plea rather than by replication thereto. The demurrer was properly sustained on grounds one and two thereof.
The third ground of the demurrer merely sets forth that said special plea when taken with the admissions as contained in the replication shows on its face that said special plea is well taken. It was necessary that the sufficiency of the plea be raised in this manner in view of the fact that the plaintiff had filed replication to the plea rather than a demurrer thereto.
We now pass to the legal proposition involved in the plea. This is our position with reference thereto. When the collision occurred and Miss Lynnette Browne was injured and Mrs. Browne was injured, a cause of action accrued for the benefit of Miss Lynnette Browne and a cause of action accrued for the benefit of Mrs. Browne. Miss Lynnette Browne was the minor child of R.S. Browne, the plaintiff in the instant case. Mrs. Browne was the wife of R.S. Browne, plaintiff in the instant case. The cause of action accruing for the benefit of Miss Lynnette Browne was for the personal injuries sustained by her. The cause of action accruing for the benefit of Mrs. Browne was for the personal injuries sustained by her. When the minor child of R.S. Browne was injured and the wife of R.S. Browne was injured, a cause of action likewise accrued for the benefit of R.S. Browne.
This cause of action for the benefit of R.S. Browne consisted of two elements of damage. One element was damages for loss of services of his minor child on account of the injuries which she sustained, and the other element of damages was for loss of consortium and expenses on account of the injury to his wife. There was never but one cause of action for the benefit of Miss Lynnette Browne. There was never but one cause of action for the benefit of Mrs. Browne. There was never but one cause of action for the benefit of R.S. Browne. It is true the cause of action for the benefit of R.S. Browne consisted of two elements of damage; namely, damage for the loss of services of his minor child and damage for the loss of consortium of his wife.
As set forth in the plea in question, R.S. Browne, the plaintiff, had for a valuable consideration executed a release to the defendant releasing one of the elements of damage which accrued for his benefit from the one cause of action; to-wit, element embraced in the loss of services of his minor child.
Certainly, with the situation in this state, that is, with R.S. Browne having one cause of action embracing the two elements of damage, if Browne had filed a suit for the injuries to his minor child and had recovered damages therefor, he could not have filed a subsequent suit for the remaining element of damage.
It is clearly the law in this state that one must embody in every suit each and every element of damage growing out of the same cause of action which he expects to recover. Otherwise, there is a splitting of a cause of action.
Kimball v. L. N.R.R. Co., 94 Miss. 396; Home Ins. Co. v. Tate Mercantile Co., 117 Miss. 760; Farmer v. Union Ins. Co., 146 Miss. 600; Railroad Co. v. Payne, 92 Miss. 126.
In the instant case, the plaintiff had previous to the filing of the present suit executed a release for a valuable consideration, releasing the defendant on account of one of the elements of damage growing out of the cause of action which he is now undertaking to enforce and wherein he is undertaking to recover for another element of damage. So far as we have been able to find, there is no case from this court directly in point, but it occurs to us that there can be no sound reason for a distinction between a release for one of the elements of damages accruing out of a cause of action and a suit and judgment recovering for such element of damage.
Appellant apparently relies entirely upon the case of Payne v. Moore, 89 So. 225, 126 Miss. 693. With deference, this case has no application whatever to the case now before the court. In the Payne case, it will be noted that there was involved two deaths. This case involves the construction of our wrongful death statute. The court held that the statute itself made of each wrongful death a separate cause of action. It will be noted that in this case the court distinguished from Railroad Co. v. Payne, 92 Miss. 126; Kimball v. R.R. Co., 94 Miss. 396; and Ins. Co. v. Tate, 117 Miss. 760, heretofore referred to, and the wording of the statute itself, making each death a separate cause of action, was the distinguishing feature upon which the distinction was drawn.
In a collision between a passenger car driven by appellant's wife and a commercial truck driven by a servant of appellee, both the wife and a minor daughter of appellant were severely injured. An action was brought by the daughter, through her mother as next friend, for the injuries suffered by the daughter, which action was settled and compromised. Appellant, although not a party to that action, joined in the release executed as a result of this settlement, but the release carefully limited its terms to the damages suffered by the daughter, and to any right of action which appellant or the daughter had as regards solely the injuries inflicted upon the daughter.
After this settlement appellant instituted an action against appellee for damages for the loss of services of his wife, for medical and surgical expenses paid out for her, and for loss of society and consortium during her long disablement on account of the said collision, averred to have been caused by appellee's negligence. To the declaration appellee filed its first special plea in which the settlement and release in the former action by the daughter was set up, and the plea urged that by the collision but one cause of action accrued to the appellant, so far as he was concerned; that the damage to appellant on account of his daughter's injuries and the damage to appellant on account of the injuries to his wife were but separate items in one cause of action and that the full settlement and release by appellant on account of the injuries to the daughter precluded him from any action because of the injuries to the wife, as being in contravention of the rule against splitting causes of action. The court sustained the plea as being sufficient to bar the present action and dismissed the case; hence this appeal.
Appellee relies on Yazoo M.V. Railroad Co. v. Payne, 92 Miss. 126, 45 So. 705; Kimball v. Railroad Co., 94 Miss. 396, 48 So. 230; Home Ins. Co. v. Tate, 117 Miss. 760, 78 So. 709, and Farmer v. Ins. Co., 146 Miss. 600, 111 So. 584. A careful examination of these cases will disclose that they are not in point. In the present case appellant had never brought any previous action. Even if we concede — but which we do not decide — that appellant, so far as he was concerned, had only one cause of action consisting of two items, all he himself had done was to settle for one item and then sue for the other. Instead of being in contravention of the rule against splitting and of the principles of public policy upon which that rule is founded, it is in accord with the public interest that parties may settle between each other as to all items in controversy which they can settle, so that any suit between them may thereupon be limited to the remaining items; and in its last analysis that is all that the present case presents.
Let us take the Kimball case, supra, as an illustration. There plaintiff suffered the damage done his horse and wagon in the same collision wherein he was personally injured. He sued and recovered for the damage to his horse and wagon and in a subsequent action sought to recover for the personal injuries; and it was held that he could not maintain the subsequent suit, because he should have sued in the first action for all the damages — that he would not be allowed to prosecute two actions when the whole matter could have been settled in one suit. But had the parties made an amicable settlement, before any action in court between them, on the items of the damage to the horse and wagon, limiting the settlement to those items, it could not have been successfully contended that this settlement precluded an action for the personal injuries. The parties might have been able to agree on a settlement for the horse and wagon but unable to do so as to the personal injuries. Public policy would encourage them to settle before suit such items as they could, and then allow them to litigate as to the remaining items. If the rule were as contended for by appellee, parties could not settle any item in the same cause of action before suit, but would have to settle all or none; and this, we think, is clearly not the law. On the contrary, the applicable principle is found, for instance, in Wunderlich v. State Hwy. Comm., 183 Miss. 428, 442, 184 So. 456, and authorities there cited.
Reversed and remanded.