Originally recoupment was merely defensive, went in reduction of plaintiff's claim, and, if equal to or greater than plaintiff's demand, defeated the action. Waterman on Set-Off, § 460; Merchants' Bank v. Acme Lumber Co., 160 Ala. 435,49 So. 782; Grisham v. Bodman, 111 Ala. 194, 20 So. 514.
As early as the Code of 1886 (section 2683) this rule was changed by statute to allow a judgment over for the excess. Code 1923, § 10179. This avoided splitting defendant's cause of action with consequent loss, if greater than that of plaintiff. In the Code of 1923 a new section is inserted as follows (section 10180):
"Verdict and judgment on a plea of set-off or recoupment. — A defendant may plead set-off or recoupment, although he does not confess the plaintiff's claim or demand, and a verdict, and judgment may be rendered on his plea of set-off and recoupment, although the plaintiff fail as to his entire claim."
Whatever may have been the rule theretofore as to whether a plea of recoupment admitted plaintiff's cause of action, certainly this statute contemplates a cross-action at law, wherein defendant may deny and defeat the plaintiff's demand, and recover in full for his own claim, if it be one pleadable in recoupment. The case of Brown v. Patterson, 214 Ala. 351,108 So. 16, 47 A.L.R. 1093, dealing with assault and battery cases, proceeded on the ground that in that class of action both the participants in an affray may have a good cause of action against each other.
In negligence cases no right of action can arise in favor of both. The contributory negligence of the plaintiff defeats his right of action, but does not give defendant a right of action for injury received by him, due to the negligence of both parties. Brown v. Patterson, supra, cannot, therefore, be regarded as authority for a plea of recoupment in negligence cases, such as automobile collisions, except in one respect. It recognizes the plea of recoupment in cases of tort, although the cause of action sounds in damages merely. In this regard that case is in harmony with the all-prevailing rule, as appears in note following report of the same case in 47 A.L.R. 1093.
Strong reasons suggest the settlement of all issues arising in one transaction in one suit. If it cannot be done, it is suggestive of inefficiency in our system of jurisprudence. Since our statute (Code, § 10180, supra) expressly authorizes a cross-action under a plea of recoupment, a plea not admitting plaintiff's demand, but setting up that plaintiff is in fact liable to defendant in assumpsit or in tort arising out of the same transaction sued upon, is there any necessity for a separate suit, by each party claiming the other to be at fault?
One suggestion is that it would lead practically to an adoption of the doctrine of comparative negligence, not sanctioned by our law. We see no occasion for such apprehension. The statute, whose legitimate effect is to open up for litigation in one suit cross-demands, without admission by either of the other, does not at all change the law of negligence nor wantonness as applied to the demand of either. The issues, when properly made up, could, in our judgment, be very clearly submitted in charge to the jury, and duly considered in collision cases such as this.
If the negligence of defendant was the proximate cause of the injury to plaintiff, no contributory negligence being pleaded and proven, the plaintiff should recover his damages. Likewise, in the cross-action by plea of recoupment, if plaintiff's negligence was the proximate cause of injury to defendant in the same transaction, no contributory negligence appearing on his part, the defendant should recover in recoupment the damages suffered by him. If both are guilty of negligence proximately contributing to their respective injuries, neither can recover.
In case of wantonness, set up on either side, if proven, the contributory negligence of the other would be no defense.
Conceivably, but not very likely, wantonness may appear to have characterized the the conduct of both parties. What then? Elementary principles easily suggest themselves. No one can justify his own wanton act by like wrongful conduct of another. *Page 697
Such case is quite analogous in principle to an assault and battery case involving an affray. If wantonness be found on the part of both, the jury should consider all the circumstances, the extent of injury suffered by each, and render such verdict as shall mete out justice in the particular case.
Pleas in recoupment under the statute should be so addressed as not to infringe upon the rule as to sufficiency of pleas addressed to particular counts of the complaint. Thus, a plea of recoupment, setting up negligence on the part of the plaintiff, should not be addressed as in "answer to" or "in bar" of a wanton count. Only the general issue is a good answer to such count. Defendant pleads "specially by way of recoupment" avoids any trouble of this sort. Probably plea 9 in the present case is subject to infirmity, because purporting to be in "answer" to wanton counts.
I am convinced that, since the enactment of Code, § 10180, there is no obstacle in law nor sound reason to the settlement of the rights of both parties in a collision case in one suit. A and B have a collision of their cars. A, laying the blame on B, sues him for damages. B, in turn, files another suit against A, laying the fault to him. A's suit comes to trial. All the facts are developed, and the jury finds for B, the defendant. Unless a plea of recoupment is allowable, another jury must be impaneled to try precisely the same facts, to determine whether defendant in the first trial has a good cause of action, a matter directly related to the question already passed upon, but because of the inadequacy of legal forms, another trial must be had.
This is not in keeping with that efficiency which is the mark of all progress.
THOMAS, J., concurs in the foregoing.