3.

Coy v. Railroad.

Only One for Single Wrongful Act: Exception. The only exception to the rule that "one shall not be twice vexed for the same cause" is found in the case of unavoidable ignorance of the full extent of the wrongs or injuries received.

4. EVIDENCE: Pleadings and Judgment of Sister State: Admitted by Constitutional Provisions in Every State. By Art. 4, Sec. I, Constitution of U. S., the pleadings and judgment in a suit in a court of a sister State, duly authenticated, are admissible in evidence in the courts of every State.

5. CARRIERS: Injuries to Shipment: To Person Accompanying: Transitory Actions. An action against a carrier for damages to goods shipped and to the person who accompaines them at the time, both grow out of the same tort and are both commonlaw actions for negligence. They are transitory actions and may be brought wherever the defendant may be found and jurisdiction over it obtained.

6. NEGLIGENCE: Law of Place of Tort. In a transitory commonlaw action for negligence the law of the place where the tort was committed governs.

7. ARKANSAS: Acts of Congress Relating to: Statutory Provisions. Various acts of congress and territorial laws of Missouri relating to the territory now embraced within the State of Arkansas which was formerly a part of the territory of Missouri, considered.

8. JUDICIAL NOTICE: Common Law in Arkansas: Congressional Provisions. Because of the various acts of congress as above, judicial notice is taken of the fact that the common law is in force in Arkansas.

9. COMMON LAW: In Force Where: Presumptions. The presumption that the common law is not in force in a State will be indulged in, only as to those States which were never subject to the common law.

10. CARRIERS: Negligence in Shipment: Law of Place. In an action against a carrier for negligence, where the negligence complained of occurred in Missouri, the laws of Missouri govern the rights and liabilities of the parties.

11.

: Negligence: Injuries to Persons and Property: Splitting Action. Plaintiff made a shipment of melons on defendant's road, accompanying same. By negligence of defendant plaintiff was injured and the melons damaged. Judg. ment was had in Arkansas against the carrier for personal injuries. He may not now split his cause of action and maintain an action in Missouri for damages to the melons.

Coy v. Railroad.

Appeal from Dunklin County Circuit Court.-Hon. W. S. C. Walker, Judge.

REVERSED.

W. F. Evans, Moses Whybark and A. P. Stewart for appellant.

(1) A single wrongful act gives only one cause of action, no matter how numerous the items of damage may be, and the damages resulting from one and the same tort must be assessed and recovered in one suit. Pucket v. Railroad, 25 Mo. App. 650; Steiglider .v. Railroad, 38 Mo. App. 511; Bank v. Tracey, 141 Mo. 259; Stickford v. St. Louis, 75 Mo. 309; Cook v. Globe Printing Co., 227 Mo. 524; 1 Enc. Pl. & Pr., p. 159. (2) A single cause of action cannot be split up so as to make different causes of action; and since plaintiff had instituted a suit in Arkansas on one item of damage arising from the alleged wrongful act, the subsequent suit (the case at bar) instituted in Missouri on some other item of damage arising from the same wrongful act is barred. Railroad v. Traube, 59 Mo. 362; Wagner v. Jacoby, 26 Mo. 532; Mateer v. Railroad, 105 Mo. 355; Spratt v. Early, 199 Mo. 501; Bircher v. Boemler, 204 Mo. 562; Puckett v. Annuity Ass'n, 134 Mo. App. 506; Bank v. Tracy, 141 Mo. 258; Donnell v. Wright, 147 Mo. 647. (3) It has been held by the Supreme Court of Missouri that, in the absence of any showing to the contrary, it will be presumed that the common law prevails in a sister State. State v. Clay, 100 Mo. 579-581; Burdict v. Railroad, 123 Mo. 230. (4) It is only in respect to those States which were never subject to the common law that the courts will not indulge the presumption, and, in the absence of proof, apply the statute laws of the forum. White v. Shaney, 20 Mo. App. 389; Flato v. Mulhall, 72 Mo. 522 (Texas); Sloan v. Torry, 78 Mo. 623 (Louisiana); Hurley v.

Coy v. Railroad.

Railroad, 57 Mo. App. 675 (Texas); Crone v. Dawson, 19 Mo. App. 220 (Illinois).

R. J. Smith and J. L. Fort for respondent.

(1) The plea in bar must be decided according to the laws of Arkansas and not according to the laws of Missouri. The judgment of a court of one State, when introduced in evidence in another State, is entitled to receive the same faith, credit and respect that is accorded to it in the State where rendered, so if valid and conclusive there, it is so in all other States. But a judgment from another State is entitled to no greater effect or finality than would be accorded to it in the State where rendered; and hence if it would be there inconclusive, impeachable or re-examinable, it will receive no greater consideration or measure of finality in other States. Peet v. Hatcher, 112 Ala. 514; Wood v. Watkinson, 17 Conn. 500; Newman v. Bank, 92 Ill. App. 638; Cox v. Ahlefeldt, 105 La. 543; Wernwag v. Pawling, 25 Am. Dec. 317; Jaster v. Currie, 94 N. W. Rep. 995; Bowersox v. Gitt, 12 Pa. Co. Ct. 81; Babcock v. Marshall, 50 S. W. Rep. 728; Danville v. Cunningham, 48 Fed. 510; Brown v. Parker, 28 Wis. 21; Matoon v. Clapp, 8 Ohio, 248; Ball v. Warrington, 108 Fed. 472; Jacobs v. Marks, 182 U. S. 583; Chapman v. Chapman, 48 Kan. 636. (2) The courts of this State cannot presume that the common law is in force in Arkansas. Clark v. Barnes, 58 Mo. App. 667. (3) Distinct causes of action capable of being sued on separately and successively may arise from one and the same tortious act in favor of the same plaintiff, as where damages to goods and injuries to the person are caused by the same negligent or wrongful act. Watson v. Co., 27 S. W. Rep. 924; Och v. Co., 80 Atl. Rep. 495; Borum v. Taylor, 19 Conn. 122; 23 Cyc. 1191; Brunsden v. Humphrey, 14 Q. B. Div. 149.

Coy v. Railroad.

FARRINGTON, J.-The plaintiff recovered a judgment for $492 as damages sustained by him occasioned by the alleged negligence of the defendant in handling two cars of watermelons while being switched by defendant in its yards at Chaffee, Mo., on August 17, 1912. The facts are that plaintiff was shipping two carloads of watermelons over defendant's railroad and was accompanying them in person, and while the cars were being switched they were run against some other cars with such force as to break, bruise and greatly damage the watermelons. Plaintiff also sustained injuries to his person in the collision.

It appears that plaintiff, prior to the commencement of this suit, instituted a suit against this defendant in the circuit court of Crawford county, Arkansas, wherein he recovered a judgment for $18,000 for his physical injuries. The injuries to his person, for which he recovered the judgment in Arkansas, and the damage to his melons-the subject of this actionwere occasioned by the same alleged negligent and wrongful act of the defendant in kicking its cars together at the time and place mentioned. The plaintiff on cross-examination admitted he had recovered the judgment in Arkansas for his personal injuries caused by this collision and the defendant introduced in evidence a copy of the pleadings and the judgment rendered in the Arkansas case.

If the judgment for $18,000 had been rendered in Missouri, there is no doubt that it would be a bar to the present action because a single wrongful act gives rise to only one cause of action on which there can be but one recovery, regardless of the numerous items of damage that may have been suffered-the damages resulting from one and the same tort must be assessed and recovered in one action; the cause of action cannot be split up and various suits brought for the different items of damage where such items grew out of one wrong. [Steiglider v. Railway Co., 38 Mo. App. 511;

Coy v. Railroad.

Wheeling Savings Bank v. Tracey, 141 Mo. 1. c. 259, 42 S. W. 946; Mateer v. Railway Co., 105 Mo. 320, 355, 16 S. W. 839; Stickford v. City of St. Louis, 75 Mo. 309, approving Stickford v. City of St. Louis, 7 Mo. App. 217; Pucket v. Railway Co., 25 Mo. App. 650; Cook v. Globe Printing Co., 227 Mo. I. c. 524, 127 S. W. 332; Union Railroad and Transportation Co. v. Traube, 59 Mo. 1. c. 362; Puckett v. National Annuity Ass'n, 134 Mo. App. 1. c. 506, 114 S. W. 1039; Spratt v. Early, 199 Mo. 1. c. 501, 97 S. W. 925; and Bircher v. Boemler, 204 Mo. 1. c. 562, 103 S. W. 40.] The reason given in these cases for this rule is that "one shall not be twice vexed for one and the same cause. The only exception to this rule as appears in these decisions is that found in the case of Wheeler Savings Bank v. Tracey, 141 Mo. 1. c. 259, 42 S. W. 946, which is that unavoidable ignorance of the full extent of the wrongs received or injuries will relax the rule. In the case under consideration the plaintiff was fully advised of the injury (not only to himself for which he procured a judgment in Arkansas) sued for herein when he instituted and recovered his judgment for this tort in Arkansas.

The pleadings and judgment in the Arkansas suit were properly introduced in evidence by the defendant, duly authenticated, under the acts of Congress. It was said in the case of Western Assurance Co. v. Walden, 238 Mo. 1. c. 61, 62, 141 S. W. 595:

"The record in this case discloses the facts that said judgment and transcript were duly authenticated according to the act of Congress governing such matters; also shows that the circuit court of Cook county, Illinois, is a court of record, and has a judge presiding, a clerk attending upon the same, as well as a seal of court. Upon that state of facts the law presumes that such a court is a court of general jurisdiction and that it had jurisdiction of the subject-matter of the action pending therein, and of the parties thereto;