28.

CHAPTER V.

ENTIRE DAMAGES IN ONE ACTION.

General rule.-The authorities are uniform in holding that where there is but one cause of action all damages must be recovered in a single suit, and although fresh damages may later result from the original wrong a second action cannot be maintained. This rule applies alike to actions in tort and in contract. In tort if the injury inflicted terminates with the wrongful act itself, but one action can be sustained, although unforeseen damages later appear, as in case of assault and battery. Here the act and injury are simultaneous. The wrong is at once complete. But from a blow on the head the full effect may not appear or become known for a long period thereafter.

If damages have once been assessed in an action, covering only the results then apparent, or those which, as shown by expert testimony, will probably later appear, and then at a subsequent period, much more serious results than had been anticipated, do appear, action therefor is barred by the former judgment. This question arose in the early case of Fetter v. Beale.80

In an action which was for a battery plaintiff alleges that he had previously recovered for it £11 and no more, and that after that recovery, part 80 King's Bench 1 Ld. Raym. 339, 692.

of his skull came out of his head, for which latter damages he now sues. The defendant pleaded the former recovery in bar. The court held for the defendant on the ground that there was but one cause of action, which was the battery, and that whatever consequences it may have produced are only matters of aggravation of damages in the one action.81

29. Question arises in different ways. The question may be raised in the pleadings where plaintiff asks to recover for future damages, or when evidence is presented to show damages beyond the date of the trial. This, plaintiff may and should do if it is certain that there can be no future cause of action resulting; but of course if he may sue for future damages as they arise, he may then only recover for those which existed at the time of filing his action. So the question may be raised by pleading the Statute of Limitations. If plaintiff's cause of action arose at the time of the wrongful act complained of, then the statute at that time began to run against the whole cause of action, provided it is not divisible; and in such case if a time equal to the period mentioned in the statute has elapsed from the date of the wrongful act, the statute may be successfully pleaded although the damages for which the action is brought may have recently arisen.82

In National Copper Mining Co. v. Minnesota Mining Co., referring to this point, the court said: "If plaintiff had brought suit more than two (2) years after the original trespass, and before the flooding 81 Howell v. Goodrich, 69 Ill. 556.

82 Williams v. Pomeroy Coal Co., 37 O. St. 583, LEADING ILLUSTRATIVE CASES.

of its mine by water flowing through the opening had begun, and if the Statute of Limitations had been pleaded, there could have been no recovery. The action for the original wrong would then have been barred, if there had been no repetition of the injury in the meantime to give a new cause of action. The mere continuing of the opening in the wall could not be a continuous trespass.'' 83

The question may also be raised by pleading former adjudication, if damages, however small, have in a former action been recovered for the wrong complained of. Therefore the question whether entire damages must be recovered in a single action is so important to the litigant that it is greatly to be regretted that the authorities on the point are in conflict.

30. Conflicting views.-This conflict may most readily be shown by the presentation of some of the leading cases on the subject.

In Mitchell v. Darley Main Colliery Co., plaintiff was the owner of the surface of the land and defendant was lessee of the coal seams under the surface, which it had excavated prior to 1868. At the time of excavating, there was a subsidence of plaintiff's land for which defendant acknowledged liability and compensated plaintiff. Subsequent to 1868 the adjoining landowner excavated the coal on his land, as he was legally entitled to do, but it resulted in other subsidences of plaintiff's land attributable to the fault of defendant in not leaving sufficient support under plaintiff's land. The ques

83 57 Mich. 83.

tion is thus presented whether in settling for the first subsidence all damages were thereby included which sprang from defendant's taking away its coal. The court held that each subsidence gave a new cause of action to plaintiff without any new act of injury on the part of defendant, and therefore plaintiff could sustain his action. This case has frequently been approved and followed.8+

On the other hand, a contrary doctrine is maintained in Williams v. Pomeroy Coal Co.85 The defendant, the Pomeroy Coal Co., was the lessee of and had the right to mine the coal from a lot adjoining that of plaintiff, which it did in 1862, but in doing so it excavated a portion of plaintiff's coal by mining on plaintiff's lot a distance of thirty-nine feet. In 1868 while plaintiff was mining on his own lot his workman tapped the point where defendant had wrongfully mined on plaintiff's lot, letting the accumulated water into plaintiff's lot, thus flooding his mine. The question here, as in the English case, supra, is, What constituted the cause of action and when did it accrue?

Plaintiff insisted that the cause of action was the flowing of the water into his mine and that it arose at that time. But the court held that the original trespass constituted the cause of action, and that the flooding of plaintiff's mine was only a portion of the damage resulting from the trespass; that the wrong was completed when the trespass occurred; that the Statute of Limitations then began to run, and that

84 L. R. 14 Q. B. Div. 125.

85 37 O. St. 583.

since the period mentioned in the statute, applying to trespass, had expired, plaintiff could not now maintain this action although the damages had recently arisen.

31. Duty when subjacent support removed. The leading case of National Copper Co. v. Minnesota Mining Co. presents facts quite similar to those given in the Pomeroy Coal Co. case and was decided the same way.86 It is submitted that these cases are in conflict. The contrary has been maintained and the theory that in the two American cases defendant wrongfully trespassed upon plaintiff's property, whereas in the English case no trespass could be chargeable to defendant.

But since subjacent support is a property right of which no one may rightfully deprive the owner, and since by taking away his coal without giving to plaintiff's surface proper support defendant trespassed upon the rights of plaintiff at that time, there seems to be no difference in principle between these cases, although the decisions are diametrically opposite to each other. The rule for which they stand and on which they should have united is that, in case of trespass, immediate damage results, and an action at once accrues to plaintiff in which entire damages, present and future, may, and therefore must, be recovered, if recovered at all. It is true that it may be difficult at the time of the trespass to anticipate and prove what damages may arise in the future, but this difficulty in establishing a fact cannot change the rule of law.

86 57 Mich. 83, 58 Am. Rep. 333.