Alabama & Vicksburg Railway Co. v. McCerren

Woods, C. J., delivered the opinion of the court. In November, 1895, the appellee, Mrs. M. B. McCerreri, filed her declaration in the circuit court of Hinds county against the appellant railway company, seeking to recover for personal in-j uries received by her by reason of the misconduct of appellant’s servants in running a handcar at a high rate of speed near and across Capitol street, in the city of Jackson, and- by reason of loud and noisy outcries of the crew propelling said handcar, whereby appellee’s horse became frightened and ran away, throwing appellee violently from her vehicle. To this declaration the appellant demurred, and the court sustained the demurrer,- and on appeal to this court, the judgment of the trial court sustaining the demurrer was affirmed, and the case remanded. When the case was again reached, after remandment, in the court below, appellee obtained leave to amend her declaration, and did amend so as to conform to the views of this court in its former judgment of affirmance, the defects in the original declaration having been pointed out by this court. To the declaration so amended as to cover its former defects, the railway company filed the general issue, and a plea of res adjudicata, this latter plea setting up in bar the former judgment of this court upon the demurrer of the railway company to appellee’s declaration. The appellee replied, averring that the judgment relied upon as constituting res adju693 dicata was not a judgment upon the merits, but was a judgment only upon the insufficiency of a pleading. To this replication, the railway company rejoined, saying that the former judgment was upon the merits of the controversy. Upon this issue, thus made, the court below found for appellee, and overruled the plea of res adjudicata, and this action of the court below presents the ground of complaint in the present appeal. The statement just made ought, of itself, to be sufficient to demonstrate the unsoundness of the present contention on this point. The principal defect in the original declaration, as held and pointed out by this court on the former appeal, was the failure of the declaration!» aver that the rate of speed at which the handcar was being run at the time of the occurrence of the injuries complained of, was unusual, and that the boisterous outcries of the crew were also unusual. Our former judgment was only addressed to the insufficiency of a pleading, and neither touched nor was intended to touch the merits of the controversy sought to be presented by the insufficient declaration, and when, after remandment, the appellee asked and obtained leave to amend her defective pleading, so as to conform it to the opinion of this court, she thereby offered a new and distinct complaint, and not the one which this court had held bad. To our mind it is clear that the former judgment of this court did not affect the merits of the case, and that the plea of res adjudicata, was bad. It is urged by counsel for the railway company, moreover, 'that the plea of res adjudicata was good, because, as stated by counsel, the question raised by the plea was not whether the present declaration averring unusually rapid speed in running the handcar, and unusually noisy conduct of the crew, would have been good on demurrer, but whether the plaintiff, after declining to amend, and after appealing to this court to have its judgment upon her pleading, can now prosecute her amended complaint for the same injury referred to in the former defective declaration. There is no merit whatever in this contention, [694] for it is, in effect, this, viz.: that no one can appeal from the j nclgment of an inferior court upon the insufficiency of a pleading to this court without being held subject to the penalty of having awarded against him final judgment, if the insufficiency of the pleading shall be affirmed by us. We do not so understand the law. In our opinion, one may appeal from an unfavorable judgment on his pleading, and that the risk taken is that of having a cost bill to pay, and not that of having final judgment uppn the merits of the controversy ineffectually sought to be presented by a bad plea pronounced against him, if the appellate court shall concur in the unfavorable judgment appealed from. Affirmed. McWillie & Thompson, for appellant, after the rendition of the foregoing opinion, filed the following suggestion of error: The counsel for the appellant in this case present this, a suggestion of error. The error of fact into which the court fell is this: It presumed that the demurrer to the declaration, which was sustained, and the judgment upon which was affirmed in this court, was a judgment in the.suit now before the court. The judgment of the first suit sustained the demurrer to the declaration. The plaintiff declined to amend, and judgment finally was rendered by the circuit court against her. After thus precluding herself from afterwards amending, she appealed to the supreme court, and this court rendered judgment affirming the judgment of the circuit court. The first suit was not remanded by this court to the lower court. A new suit was begun, and a plea of res adjudieata was interposed, to which a mil liel record was filed, and also a second replication denying that the first suit had been determined upon its merits. There is nowhere in the record any pretense by anybody that the suits were the same. It is only claimed by appellant that the causes of action were the same. The court, however, f filed to notice that the suits were different, and hence the opinion rendered is predicated of the aforesaid misconception. [695] Woods, C. J., delivered the following response to the suggestion of error filed to the former opinion of the court: We were in error, in the former opinion, in stating that the case of Mrs. McCerren against the Alabama & Vicksburg Railway Company, decided by this court on the former appeal, was remanded upon our affirmance of the judgment of the court below in that case. With the help of counsel we have been able now to discover that the case was not remanded, and that this appeal is from the judgment of the trial court in a cause filed after the judgment of this court in the former appeal. But this error in no way affects the conclusion arrived at by us in our former opinion in the present case. Whether the declaration was an amended one, framed to meet the views of this court in its opinion on the former appeal, or was a new declaration, filed in a new suit and framed to meet the views of this court in its opinion on the former appeal, is immaterial. We considered maturely the brief of counsel for appellant, with the authorities relied upon therein, before deciding the case last month. The case of Straw v. Railroad Co., 73 Miss., 446, was carefully examined by us then, though it was quite fresh in our minds, and we thought then, as we do now, on further consideration, that it does not support the contention of counsel. It is readily distinguishable from the case in hand. We adhei'e to our former opinion.