South & North Alabama Railroad v. Henlein & Barr

STONE, J. In the case of the North & South Alabama Railroad Co. v. Henlein & Barr, 52 Ala. 606, the question of the right of a railroad to stipulate the measure and extent to which it is to be held accountable, in case of injury or destruction of live stock transported by it, was very fully considered. We there said : “If the measure of the liability thus fixed appear to be greatly disproportionate to the real value of the animal and the amount of freight received, we should not hesitate to declare it unjust and unreasonable. But, as the case is presented, it seems to have been intended to adjust the measure of liability to the reduced rate of freight charged, and to protect the carrier against exaggerated or fanciful valuations: We cannot, therefore, pronounce it unjust and unreasonable, and it is the measure of appellant’s liability.” That case was precisely like the present one, in all its material aspects, and we adhere to the rule there laid down. The result of this ruling is, that the judgment of the Circuit Court must be reversed, so far as the instruction bears on this point 2. The Circuit Court did not err, in charging the jury that the railroad company could not stipulate for immunity against damage resulting from its own negligence. The policy of the law, and the interest of commerce, forbid that. — Steele v. Townsend, 37 Ala. 247. The third charge asked and refused is a legal truism, and should have been given. — 1 Greenl. Ev. §§ 23, 26, 211. [373] 3. On a charge given, and one refused, a question of the indivisibility of contracts is raised. The substance of the court’s ruling was, that although the making of the defense in the suit of Cocke v. Henlein & Barr, before Justice Nettles, was a defense, under the plea of former recovery, to the present action, yet such defense was partial, extending only to the sum of seventy-five dollars, the amount in controversy in that suit; and that the plaintiffs in the present action, on the facts hypotheticated, if found by the jury, could recover the balance of the damage sustained by them in the alleged injury to their mule. The defense in Justice Nettles’ court involved the same alleged negligence, as that which is relied on for recovery in the present action. Oocke, the plaintiff in that action, was but the transferree, or beneficial owner, of the claim of the railroad for freight-charges on a lot of mules, of which the one in controversy constituted a part. The defendants, Henlein & Barr, had the legal right to make that defense in that action; and if they had established it to the satisfaction of the justice, they would, thereby, have defeated a recovery. This, on the doctrine of recoupment.— Hatchett v. Gibson, 13 Ala. 587. The justice had jurisdiction to try the issue thus raised, and he did try and determine it. The decision of Justice Nettles was, that Henlein &Barr had no legal cause of action against the railroad company, for the alleged injury to the mule; and Henlein & Barr permitted that judgment to stand. According to the statements of the bill of exceptions, it is still an unreversed judgment of a court of competent jurisdiction. The rule of law is, that an issue once tried and determined, before a court of competent jurisdiction, is conclusive, until reversed, of both law and fact involved in the issue, whenever it arises a second time between the same parties or their privies. — Rakes v. Pope, 7 Ala. 161; 1 Brick. Dig. 823, §§ 273, 274; 1 Greenl. Ev. §§ 522, 523; Gould v. Evansville & Crawfordsville R. R. Co., 1 Otto, 526, and authorities cited; Cromwell v. County of Sac, Sup. Ct. U. S., October term, 1876. 4. It is well settled, that a single contract, unless it be payable in installments, can not be split up, and become the foundation of a plurality of suits; and if the owner of such claim or cause of action bring- suit on a paH of it, and either succeed or fail in such suit, he can not afterwards sue on the residue of the claim or cause of action. The reason is the simple, yet well-known proposition, that the law will not permit such splitting up of a single cause of action. — Oliver v. Holt, 11 Ala. 574; O’Neal v. Brown, 21 Ala. 482. In the case of Guernsey v. Carver, 8 Wend. 492, two consecutive suits were brought on different parts or items of one [374] continuous, running account, the whole of which was contracted before the institution of the first suit. On the plea of tender, the first suit went off, at the costs of the plaintiff. To the second suit, the defendant, among other defenses, pleaded “ a former suit for the same identical cause and causes of action, and that such proceedings were had in such suit that it was adjudged * * that the plaintiff should go thereof without day, and that defendant should recover his costs of defense.” The items for which the two several suits were brought were in fact different. The court — Nelson, J.— said : “ If a plaintiff bring an action for a part only of an entire and indivisible demand, the judgment in that action is a conclusive bar to a subsequent suit for another part of the same demand. * * The whole account being due when the first suit was brought, it should be viewed in the light of an entire demand, incapable of division for the purpose of prosecution. The law abhors a multiplicity of suits.” See, also, Stevens v. Lockwood, 13 Wend. 644; Bendernagle v. Cocks, 19 Wend. 207; Bunnel v. Pinto, 2 Conn. 431. The defense made by Henlein & Barr before Justice Nettles was recoupment. Such plea is in its very nature defensive, and the party making it seeks only to cut out, or keep back, a part, or the whole of the plaintiff’s demand. Whether such defense is a waiver or abandonment of all claim by reason thereof, save that which abates or defeats plaintiff’s recovery, is not fully settled. This court, in McLane v. Miller, 12 Ala. 643, asserted the affirmative of the proposition ; and declared that no action will lie for the recovery of a balance of a claim, a part of which has been used as recoupment of damages in a former suit. Britton v. Turner, 6 N. H. 481, decides the same thing. In Waterman on Set-Off, this question is treated as unsettled, referring to Mandel v. Steel, 8 Mees. & W 858. — -See Waterman on Set-Off, § 531; Mason v. Heyward, 3 Min. 182. We prefer to follow the lead of McLane v. Miller, supra, and hold that, in such case, no action can be brought for the residuum of a claim, a part of wNich has been utilized by way of recoupment in a former suit. 5. Another principle is, perhaps, fatal to the plaintiffs’ right of recovery in the present action, if the statements of the bill of exceptions be true. The defense they offered before Justice Nettles, presented the same want of diligence, and the same damage to the same property, as those set up in the present suit. In that case, they were adjudged insufficient to bar a recovery. The claim thereby-became res judicata, and can not be the foundation of an independent suit. Wright v. Salisbury, 46 Mo. 26; Baker v. Stinchfield, 57 Maine, 363; Collins v. Bennett, 46 N. Y. 490. [375] In every aspect in which we can view this question, we hold that Henlein & Barr, by the defense they made before Justice Nettles, have tested the validity of their demand, and have consented to abandon all claim against the railroad, except that which they asserted in that action; and that, having failed in that defense, they have barred themselves of all right to maintain a suit on that claim, or any part thereof. The judgment of the Circuit Court is reversed, and cause remanded. MANNING, J. For my views in respect to the first point above considered, I refer to the dissenting opinion delivered in the case between the same parties, in 52 Ala. Hep. 606.