Payne v. Moore

Sykes, J., delivered the opinion of the court. The appellees, Martha Moore and her two minor children, sued and recovered judgment against the appellant for five thousand dollars for the negligent killing of Judge Moore, Sr., husband and father of the appellants, who, while driving in an automobile across Forty-ninth avenue in the city of Meridian, his automobile was struck, and the driver, Judge Moore, Sr., was instantly killed, while his son, Judge Moore, Jr., sustained fatal injuries from which he died a few hours thereafter. A separate suit was instituted by these same plaintiffs against the same defendant for the killing of Judge Moore, Jr., which case was tried before the instant one. The material testimony in this case is similar to that in the suit for the killing of the boy, and will be found set out in that case, which is reported in 87 So. 1. There are numerous assignments of error presented in this record, all of which have received the careful consideration of the court, and none of which constitutes rever-. sible error. We deem it unnecessary to discuss but one of these assignments in this opinion. • To the declaration the defendant pleaded the general issue and a special plea to the effect that this suit should not be maintained because these plaintiffs had heretofore sued the defendant for this same cause of action and had recovered a judgment in the circuit court in that case for the sum of seven thousand five hundred dollars. This plea refers to the previous suit instituted for the death of the son. This [701] was a plea of res adjtodicata. There was a replication to this plea which admitted the recovery in the suit for the death of Judge Moore, Jr., and alleged in substance a separate cause of action under the statute, and that they were separate and different defenses to each cause of action. A demurrer was interposed and overruled to this plea. The narrow question presented to this court by this appeal is whether or not when two persons are killed because of the same negligent act of a defendant and the cause of action for the death of each inures to the same parties under chapter 214, Laws of 1914 (section 501, Hemingway’s Code, Lord Campbell’s Act), it is obligatory upon these parties to include in' one suit the two death claims; in other words, whether or not but one suit may be maintained for the two deaths. In the case of Hines v. McCullers, 121 Miss. 666, 83 So. 734, there was but one suit by the husband for the death of Mrs. McCullers and her child. In that case the defendant railroad company pleaded a misjoinder of causes of action, in which case we held that: • “Causes of action in favor of the same plaintiff and against the same defendant, of the same nature, and subject to the same character of defense and judgment may be joined in one declaration, even though the pleas thereto may be different” — citing authorities. By this decision where these rights and interests concur the plaintiffs may maintain one cause of action for the two deaths. It was not there held, and the court did not intend to hold, that it is obligatory upon the plaintiffs to maintain but one suit for two deaths, but that it was optional with them. Lord Campbell’s Act (Laws of 1914, chapter 214; section 501, Hemingway’s Code) expressly gives a cause of action for a wrongful death to certain parties named therein. This cause of action is founded upon the right of the injured party to maintain it if death had not ensued. In this case, if Judge Moore, Jr., and Judge Moore, Sr., had only been injured, each would have had a separate cause of action. The right of the plaintiffs in each one of these cases [702] to maintain these suits is a derivative right derived through each of the decedents. By this statute they are made separate causes of action. They are not mere separate items of damages arising through one cause of action as in the cases of Railroad Co. v. Payne, 92 Miss. 126, 45 So. 705, Kimball v. Railroad Co., 94 Miss 396, 48 So. 230, and Insurance Co. v. Tate, 117 Miss. 760, 78 So. 709, the authorities relied upon by the appellant. In those cases the plaintiffs by the one tortious act individually sustained the damages one item of personal injuries and one of property damage. Before the tortious act the plaintiff owned the personal property damaged, and the court in these cases held that the personal injuries and damages to property were merely separate items of damages caused by one tortious act and for which only one suit could be maintained. Likewise the same principle was applied in the Insurance Co. Case, supra. This act, however, expressly provides that “there shall be but one suit for the same death, which shall inure for the benefit of all parties concerned.” By this act for each death a separate “cause of' action is given. When two or more persons are killed because of the same tortious act, and the causes of action for each of them are vested in the same parties, these parties may, at their option, bring one suit for all of these deaths, as is held in the McCullers Case; but they have a right, if they so desire, to bring a separate suit for each death. It follows that the lower court was correct in overruling the demurrer of the defendant to' plaintiff’s replication. The judgment of the circuit court is affirmed. Affirmed.