Chicago, R. I. & P. Ry. Co. v. Earl , 121 Ark. 514 ( 1916 )

■ Wood, J.,

(after stating the facts). (1-2) Under section 5396 of Kirby’s Digest, which makes the filing of a mortgage for record notice to all persons of its existence, appellant had notice of appellee’s rights under his mortgage. “In the absence of ■stipulations to the contrary the mortgagee of personal property shall have the legal title thereto and the right of possession.” .Section 5410, Kirby’s Digest. But until the mortgagee has actually taken possession, .and :so long as lie permits the mortgagor to retain possession the latter occupies the position of a ■bailee and he has such a special ownership in the property that imposes upon him the duty of protecting it from wrongdoers and that would make him liable to the beneficial owner if he failed to do so.

(3) This permissive possession and special ownership and the duties and responsibilities incident thereto gave to the mortgagor the right to maintain an action against third parties for the negligent destruction or conversion of the property. The .authorities as a general rule so hold. Wilkes v. Southern Railway Co., 85 S. Car. 346, 67 S. E. 292, 21 A. and E. Anno. Cases, 79, and cases in note; 5 A. & E. Enc. of Law (2 ed.) 999, note.

We have a statute that gives any person having a special ownership in 'live stock killed or wounded by any railroad trains running in this State the right to sue for the damages sustained. Section 6776 Kirby’s Digest.

Our decisions recognize the right of one having a special property under the statute to maintain suit for damages against the railway company that killed or wounded the live stock. St. Louis, I. M. & S. Ry. Co. v. Biggs, 50 Ark. 169-79; Railway v. Taylor, 57 Ark. 136. Speaking of the right to ¡maintain the suit in Railway v. Biggs, supra, we said: “And this is declaratory of the common law, according to the principles of which the bailee of a chattel, whose term is unexpired, being answerable over to the .absolute owner, may sue for its full value, if it is injured or destroyed while in his possession, and if he recover, the action of him who has the reversionary interest is gone.” Mr. Jones, after speaking of the right of the mortgagee to maintain a suit for damages against a stranger for an injury to mortgaged property, has this to say of the right of the mortgagor:

“But the mortgagor, if in actual possession, has the same right of action against one who wrongfully injures or converts the mortgaged property, unless the mortgagee has intervened for his own protection. In this respect the rule is the same .as in 'the case of a bailment, namely, the joint owner of the property, or one having a special interest in it, can maintain trespass or case for injury to it, or trover for a conversion of it, but a judgment recovered by either is a bar to a suit by the other for the same cause of action, and it would seem that a voluntary payment of damages by the defendant to one would be a bar to a suit by the other. ’ ’ 1 Jones, Chat. Mort., 447a.

(4) Since the mortgagor in possession has the right to maintain a .suit for damages against 'the wrongdoer for injury to the property, it follows as the logical, if not necessary, corollary of his doctrine that the mortgagor would have the right to settle with the wrongdoer without suit. Also that the wrongdoer, having the right to settle, and having settled with the mortgagor, would not be liable over to the mortgagee. This rule is in accord with the commendable policy of compromising and adjusting differences without going to law.

(5) A wrongdoer who is willing to settle for the injury he has done without litigation, should not be and is not forced to go to law. And when he has settled with either one of two parties who may have the equal right to •sue him, he has satisfied the demands of the law. The law contemplates but one settlement or satisfaction for the same injury. Luse v. Jones, 39 N. J. Law, 707-8-12. See also Wilkes v. Ry. Co. supra; Logan v. Wabash Western R. Co., 43 Mo. App. 71.

The court therefore erred in rendering judgment in •favor of the appellee against appellant and its judgment is reversed and the cause is dismissed.