Southern Railway Co. v. Raney , 117 Ala. 270 ( 1897 )

HEAD, J.

The appellee sued the appellant, before a. justice of the peace, in trover for the conversion of cross-ties. The judgment was in favor of the defendant in the action, and against plaintiff for the costs. He subsequently brought the present action for the same ties, sold and delivered' by him to the defendant. The case went by appeal to the circuit court, and was there tried by the judge without a jury — the amount involved being less than $20.

The defendant moved the court to stay the proceeding until the costs of the former action should be paid, proving their amount and non-payment. The court overruled the motion-, and the ruling is before us for review.

The rule invoked in support of the motion clearly requires that both actions must be for the same, or substantially the same, cause. See cases collected in 23 Am. & Eng. Encyc. of Law, 527, 528; Exparte Street, 106 Ala. 102; Ex parte Shear, 92 Ala. 596; Brown v. Brown, 81 Ala. 508. The two cases now under consideration are of radically different natures. The first was in tort, pure and simple ; the present is upon an independent contract, not growing out of, or in anywise connected with, the supposed tort. They are governed by entirely different legal principles and supported by entirely different evidence, except the identity of the commodity alleged in the one to have been converted with that alleged in the other to have been sold. The case must not be confounded with those where the first action was trover and the second - assumpsit for money had and received, based upon a waiver of the tort, and seeking recovery of' the proceeds of the converted property, as in.the case of Gravenor v. Cape, 2 Bel. Rep. 741 and 3 Wilson 160, referred to in the note 23 Am. & Eng. Encyc. of Law, supra. There is reason for applying the rule invoked to those cases, upon the principle that the causes of action are substantially the same. The circuit court correctly overruled the motion to stay the trial.

From what we have said, it is manifest that the plea of res judicata cannot be sustained. The evidence necessary to support the present action, having relation to the same ties, would inevitably have defeated the action of trover, and viceversa. If the ties were unlawfully converted, they were not sold; if sold they were not unlawfully converted. The two actions have nothing in common except identity of the commodity involved.

Under the well recognized rule governing the revision by this court, of the findings of fact of the trial judge, it is clear we cannot reverse the findings in this .case. It appears to have been largely a question of veracity of witnesses, and the trial judge, who saw the witnesses on the stand and heard them testify, could judge better than we of their credibility. There was evidence from which the judge could have concluded that the ties, in the contemplation of both parties, were put at the place testified to by the plaintiff, for the purpose of sale and delivery to the defendant, and -were taken up and used by the agent of defendant whose business and practice it was to take up ties so placed for sale. It is true the testimony of defendant’s witnesses is not disputed, that it was the rule of the company that the construction men engaged in taking up ties should take none of the particular character of ■ plaintiff’s, and none which had not been inspected and branded by the company’s inspector, but in view of the prevailing custom, which was proven, of having sellers put their ties on the right of way to betaken up by defendant’s agents entrusted with that duty, we do not think the seller can be held responsible for deviations on the part of those agents in taking up ties of the prohibited character or without inspection. The custom itself necessarily contemplates that ties • so placed may be taken up in the absence of sellers. It does not justy imply that sellers shall always be present to see that defendant’s agents comply literally with their instructions. The testimony shows that the conductor of the construction train was authorized to take, and was engaged generally in taking up ties along that section, and, though the testimony is in direct conflict upon the point, there was evidence tending to show that the said conductor took the plaintiff’s ties now sued for ; and, as we have said, under the rule governing revisions by this court of the findings of fact by the trial judge, we cannot say that the judge’s determination of this issue was erroneous.

We see no error in the record, and the judgment of the circuit court must be affirmed.

Affirmed.