Kimball v. Louisville & Nashville Railroad

48 So. 230, 94 Miss. 396

• Court: Mississippi Supreme Court
• Decided: October 15, 1908
• Status: Published

Opinion

Mates, J.,

delivered the opinion of the court.

In October, 1906, while attempting to drive across the track of the railway at a public crossing in the city of Biloxi, Kimball claims to have been injured. Eor this injury he brought suit against the defendant company. On the trial it appeared that Kimball had sued for and recovered a judgment against the railroad company for damage done a horse and wagon by the same wrongful act. This judgment had been fully satisfied. This suit is to recover damages for injuries sustained to his person in the same collision which damaged the horse and wagon. Pleas presenting this issue were filed by the railroad company, and the question of the former recovery in a suit for injury done his property by the same act being beyond dispute, the court gave a peremptory instruction to find fox the defendant. From this action of the court an appeal is prosecuted.

In the case of Scott v. Southern Railway, 47 South. 531, in which no written opinion was delivered, this question was presented, and the court held that, where a person sustained injuies both to himself and his property by the same tortious aet, it gave rise to but a single cause of action. There seems to be much conflict of authority on this subject, but the weight of better authority is in keeping with the holding of this court. The case of King v. Chicago, M. & St. P. R. Co., 80 Minn. 83, 82 N. W. 1113, 50 L. R. A. 161, 81 Am. St. Rep. 238, is a very instructive cáse on this subject, and in the opinion and notes will be found a collation of many authorities. In the King case, above referred to, in discussing the question of whether or not, where one is injured both in his person and property by the same tortious act, it constitutes more than one cause of action, the court held that the different injuries constituted separate items of damage, but only gave rise to one cause of action, and further held that in such a case “that rule of construction should be ■ adopted which .will most speedily and economically bring litir gation to an end, if at the same time it conserves the ends of justice. There is nothing to be gained in splitting up the rights of an injured party as in this case, and much may be saved if une action is made to cover the subject.” We quote the above language with unqualified approval as applied to this case.

Affirmed.