Kelley v. City of Cape Girardeau

ON MOTION FOR REHEARING. Plaintiff has filed a motion for rehearing based on one point only, i.e., that defendant was estopped from raising the defense of, "splitting of causes of action," as a bar to this action, because that defense was not interposed in a former action between the same parties. We briefly disposed of that contention in the foregoing opinion because we considered that proposition to be without merit. We are still of that opinion. The record in this case discloses that on the 5th day of May, 1924, plaintiff filed in the Cape Girardeau Court of Common Pleas a suit for damages against defendant, from overflow of his property which occurred on the 8th day of September, *Page 735 1921; that on the 8th day of November, 1927, plaintiff filed in the same court another like cause of action for damages which occurred on the 27th day of July, 1923, and on various other dates in 1923.

It is urged that since defendant did not interpose the defense in the 1927 suit that the failure to include the 1923 damages in the 1924 suit was a bar to any further action thereon, the defendant is now estopped from setting up such a defense in the present suit. Plaintiff urges that this case falls within the rule that, in a second suit between the same parties on the samecause of action the judgment in the former suit is conclusive in the latter, not only as to every question decided, but also as to all matters, including defenses, that might have been litigated. In support of this plaintiff cites 15 R.C.L., 962, sec. 438; Lynch v. Railroad, 180 Mo. App. 169, 168 S.W. 224, and many other cases. We concede the rule to be as stated.

The trouble with plaintiff's position is that this suit is not on the same cause of action as the former suits. Plaintiff has contended, and correctly we think, that each and every rainfall for which damages are claimed gave rise to a separate and distinct cause of action. The St. Louis Court of Appeals so held in its opinion when one of these case was before it. [Kelly v. City of Cape Girardeau, 284 S.W. l.c. 524.] In that case it was held that the former suits were res adjudicata only as to such matters as were actually determined and litigated. The rule is that, in the event of a judgment in a former case between the same parties, but on a different claim or demand, the inquiry must be as to the fact or proposition actually litigated and determined and not what might have been litigated. [State ex rel. v. Eastin, 213 S.W. 59, 278 Mo. 662; Loud v. Trust Co.,249 S.W. 629, l.c. 639, 298 Mo. 148; State ex rel. v. Mining Co.,262 Mo. 480, 171 S.W. 356.] Since the present suit is a different cause of action from the 1927 suit between the same parties, defendant had the right to raise any defense, including the plea in bar upon which our opinion is based, that was not raised or determined in the former action. The plea in bar was not pleaded nor determined in any former action between these parties, hence the motion for rehearing should be overruled. It is so ordered.Smith, J., concurs; Allen, P.J., not sitting. *Page 736