Hughes v. Southern Railway , 92 S.C. 1 ( 1912 )

July 10, 1912. The opinion of the Court was delivered by This was an action in the Court of Common Pleas for Richland county to recover the sum of $20,000 damages for alleged careless, reckless and wanton conduct of defendants for alleged injuries received by the plaintiff on November 4, 1907, while in the employment of the Southern Railway Company. The defendants answer and in their fourth defense allege "That on the 23d day of April, 1908, the plaintiff, Hughes, commenced an action in the Court of Common Pleas for Richland county against the defendant, Southern Railway Company, as will appear by the record in said cause, and in that complaint alleged substantially the same facts as to the said accident as are now set out in the pending action and allege further plaintiffs injury in said accident and the execution and delivery of a release to the Southern Railway Company by the plaintiff to all claims against it on account of said alleged injuries. Complaint was duly answered, and on June 15, 1910, the cause proceeded regularly to trial before Judge DeVore, and a jury, resulting in an order of nonsuit. Attached to this answer and made a part thereof are the complaint, answer and order of nonsuit, marked Exhibits A, B, and C. That no appeal was taken from this order of nonsuit. The defendant pleads that the validity of said release has been adjudicated in the former action and plaintiff is now estopped from maintaining this action. For a proper understanding of the issues, the complaint in this case, together with the answer and exhibits will be reported with the case.

The plaintiff interposed a demurrer to the fourth defense in the case at bar on the following grounds:

"The plaintiff above named demurs to the allegations of paragraph 2 in the above entitled action. That upon the face thereof, together with exhibits A, B, and C, annexed to the answer, and a part thereof; that upon the face thereof it does not constitute a defense to this action upon the grounds:

1. "That the complaint herein does not allege substantially the same facts as the said complaint in the former action.

2. "That this action is entirely a different cause of action than the one sued on in the former action. The cause of action sued on in this cause being one founded upon the delict wrong done by the defendant to plaintiff, where the former action was founded upon the growing out of a contract between the plaintiff and the defendant, and, therefore, that action or action in the former suit cannot be pleaded in bar of this action.

3. "That the question of validity of the said release was unadjudicated in the former action and does not constitute an estoppel herein."

The demurrer was heard and overruled by Judge Spain, and the plaintiff appealed on the following grounds:

"That his Honor erred in overruling the demurrer:

1. "Because his Honor held the allegations of the fourth defense constituted a bar to the action herein, whereas, he should have held that the complaint herein does not allege substantially the same facts as set forth in the former action.

2. "That he should have held that this action is entirely a different cause of action than the one sued on in the former action; that the action sued on in this action is one founded upon the delict and wrong done by the defendants to the plaintiff, and that the former action was founded and grew out of a breach of contract between the plaintiff and the defendant, Southern Railway Company, and, therefore, the former action could not be pleaded a bar to this action.

3. "That he should have held that the validity of the said release was not adjudicated in the former action, and does not constitute an estoppel herein."

The question raised by the order overruling the demurrer and exceptions thereto is whether the order of nonsuit in the former action constitutes an estoppel in this action and rendered the matter res adjudicata and constitutes a bar to the present action. In the former action plaintiff elected to treat the contract of release as valid and based his right to recover upon its validity and admitted it when exhibited to him on trial. In the present action he attempts to treat the release as invalid and avoid it and bases his right to recover upon the invalidity of the release. In one action plaintiff alleges the release is valid and in the second action he alleges it is invalid. In the first action Judge DeVore construed the written contract of release as concluding the plaintiff from claiming that the terms of the contract were in any way different from those in writing and barring the right of action for the alleged breach or that the evidence showed no breach of the written contract. The plaintiff submitted to a nonsuit, which was ordered, and that order, was not appealed from. After that this action was commenced to recover damages which the plaintiff in the former action alleged he had released. The commencement of the first action based on the validity of the contract of the release was a decisive act and constituted an election on the part of the plaintiff to test the validity or invalidity of that release and it seems to us that the contract of release was conclusively adjudicated in that action between the parties to it to be valid and is such an adjudication of the subject matter of controversy in both actions as to bar the plaintiff's recovery of the damages released.

"A nonsuit is not usually a judgment upon the merits. It was originally given against the plaintiff when he introduced insufficient evidence to support a verdict or when he refused or neglected to proceed to the trial of the cause after it had been put at issue. It is different however where the plaintiff is nonsuited or a verdict is directed because the evidence introduced by the plaintiff proves affirmatively as a matter of law that he is not entitled to recover. The difference is that in one instance the plaintiff fails to make out his case; in the other instance he proves affirmatively facts which as a matter of law show that he is not entitled to recover." Jenkins v. A.C.L.R. R. Co., 89 S.C. 408, and cases cited therein; Morrow v. Railway Co., 84 S.C. 221, 66 S.E. 186.

"So a nonsuit based upon the construction of a deed and unappealed from is res adjudicata in a subsequent action involving the same matter." Cartin v. R.R. Co., 43 S.C. 221;Hodges v. Lumber Co., 90 S.C. 231.

"A matter involved in a cause and finally disposed of by a Circuit decree from which no appeal is taken becomes resjudicata." Symmes v. Symmes, 18 S.C. 602.

The plaintiff, by his former action, asserts that the release was valid. Defendant admitted that it was. Plaintiff claimed damages under it, but lost his case by being nonsuited. The validity of the contract of release is res adjudicata.

Judgment affirmed.