Opinion
No. 30208.
October 31, 1932.
1. JUDGMENT.
In second action between same parties, although causes of action may be different, judgment in first action is res judicata as to any point actually litigated or determined.
2. JUDGMENT.
Question whether defendant was guilty of negligence contributing to accident having been litigated and determined in defendant's previous action against plaintiff, judgment, unappealed from, was conclusive of all issues determined, even if court committed error, and plaintiff could not maintain action based on same alleged acts of negligence.
APPEAL from circuit court of Noxubee county. HON. J.I. STURDIVANT, Judge.
Charles Strong, of Macon, for appellant.
To constitute res adjudicata there must be first: Identity in the thing sued for. Second: Identity of the cause of action. Third: Identities of person and parties to the action.
Jones v. George, 126 Miss. 581.
Rights, claims or demands of the parties growing out of the same subject-matter, but which are not put in issue or adjudicated in the former action, are not barred by the judgment therein. And a fortiori a judgment is not a bar to the litigation of any demand or cause of action which, from the nature of the case, the form of the action, or the character of the pleading, could not have been adjudicated in the former suit.
34 C.J., page 823.
A judgment is not conclusive on any point or question which from the nature of the case, the form of the action, or the character of the pleadings could not have been adjudicated.
34 C.J. 935.
It was not presented by the pleadings, and therefore could not have been adjudicated.
Hubbard v. Flynt, 58 Miss. 266.
In order that the judgment in a first suit may constitute a bar to a second suit, the cause of action in both suits must be the same.
Hardy v. O'Pry, 102 Miss. 197.
Your appellant would state to the court that by the ruling of this court, in the instructions referred to, the laws of the State of Mississippi were not given to the jury.
In the State of Mississippi contributory negligence is not a bar to recovery.
Wheat v. Wheat, 139 So. 849.
The driver of each automobile was a joint tortfeasor, and each was responsible for the accident.
Westfield v. The Shell Petroleum Corporation, 138 So. 561.
Charles Richardson, of Macon, for appellant.
In view of the fact that the jury was erroneously instructed in the Walker v. Cotton case and upon said erroneous instruction brought in a verdict for Walker should not preclude Cotton from having an opportunity to have his case tried by a court of competent jurisdiction, which he has never had an opportunity to have heard.
In the replication to the special plea the appellant states that he has other witnesses and other testimony that was not heard in the case of appellee against appellant; that his cause has never been heard by a court of competent jurisdiction; that the grounds of negligence in this cause are not identical with the grounds of negligence in the cause of appellee v. appellant.
Charles Strong and Chas. Richardson, both of Macon, for appellant.
The rule of res adjudicata is based upon the idea that there should be an end of litigation, as well as upon the maxim that one should not be twice vexed for the same cause.
Ludwick v. Penny, 73 S.E. 228.
The doctrine of res adjudicata is not a mere rule of procedure, but a rule of justice unlimited in operation, which must be enforced whenever its enforcement is necessary for the protection of rights and preservation of the repose of society, based upon the grounds that there should be an end to litigation, and that a person should not be twice vexed for the same cause.
Walsh's Estate, 74 A. 563.
A plea of res adjudicata must show either an actual merger, or that the same point has already been decided between the same parties, that the plaintiff had an opportunity of recovering, and, but for his own fault, might have recovered, in the original suit, that which he seeks to recover in the second action.
Womack v. City of St. Joseph, 10 L.R.A. (N.S.) 140.
It will be found, in all cases where the point was made or adjudicated, that the party to be bound had his day in court, that he was either a party or in privity, and had once the chance to meet his adversary face to face on the issue, in fact or constructively. Many case have been adjudicated showing the nicest discrimination in the application of estoppel by judgment, and in none of them will a rigid analysis show a deviation in principle from the rules laid down and principles announced hereinbefore as governing the application of res adjudicata.
Womack v. City of St. Joseph, 10 L.R.A. (N.S.) 140.
When the appellee in this case, was plaintiff in a suit against this appellant, the question as to whether or not the then plaintiff was guilty of contributory negligence did not in any regard affect the rights of this appellant, for it was not his rights that were then being determined. It was a different case.
Brahan v. Meridian Light Ry. Co., 83 So. 467.
Inasmuch as the question involved in the last case could not have been decided in the first case, the first case did not bar the second case.
Hammel v. Southern Ry. Co., 66 So. 426, 74 So. 276.
The judgment in one suit will be a bar to another suit only when a remedy exists which insures the same relief sought in the two separate actions. The test is whether the remedies pursued in two or more suits could have been included in one.
Wardman-Justice Motors Co. v. Pierce, 69 A.L.R. 648.
Contributory negligence is not a bar to recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of property, or the person having control over the property.
Section 511, Code of 1930.
In those instances where both parties are guilty of negligence, and both parties have suffered an injury, there is no provision in the law for a mutual cancellation of one's damage against the damage of the other. There is no mutuality of claim; there is no provision for set-off; there is no provision for mutual credits; there is no way for the measuring or adjudication of the rights involved in the defendant's claim for damages in the trial of the case of the plaintiff's claim for damages. While the negligence of each will be involved in the trial of both cases, there is no remedy fixed by law for the adjudication of the mutual liabilities involved therein.
Contributory negligence is a partial defense, and it bars the right of a plaintiff to recover for the proportion of the damages which is attributable to his own negligence.
Waterford Lumber Company v. Jacobs, 97 So. 187.
While the pleadings and instructions did not refer to the statute on contributory negligence still the jury had a right to consider the question of contributory negligence and to diminish damages in proportion to the negligence of the plaintiff to the defendant. It is true in rendering a verdict the jury must have considered that plaintiff was guilty of negligence and have diminished the damages accordingly. While it is true that no instruction or no pleading was made setting up contributory negligence, still the jury is presumed to have a knowledge of law and in the present case, must have acted upon it.
Goodman v. Lang, 130 So. 50.
Although a judgment may be conclusive evidence on any point formerly litigated and decided between the same parties, yet it is not pleadable in bar of a second action unless founded on the same identical cause of action. If this identity exists the former judgment may be interposed to prevent a second recovery by plaintiff on the same cause, or to bar the maintenance of a second action upon a cause against which defendant has already successfully defended himself. But to have this effect it must clearly appear or be demonstrated on what cause of action the former judgment was rendered and that it is the same as the cause of action brought forward in the second suit; and no estoppel arises if this matter can be made out only by inference or conjecture. If the causes of action involved in the two suits are not the same, identically or substantially, then, whatever may be the effect of the judgment as evidence, it is no bar to the maintenance of the subsequent suit.
23 Cyc. 1155.
Matters alleged by way of defense to an action, and fully negatived by the judgment therein, cannot afterward be made the basis of a new action by the former defendant against the former plaintiff. But it is otherwise if such matters, although they may have been used as a defense in the first suit, constituted a substantive and distinct cause of action which defendant in the former suit was not bound to plead or set up.
23 Cyc. 1163.
For the purpose of this rule it is not sufficient that the question arising in subsequent litigation is identical with the one decided, in some respects only, it must be so in all respects. If therefore there is an element in one of the questions which is not contained in the other, the rule does not apply, for the obvious reason that this additional element may have been the turning point in the previous decision.
Umlauf v. Umlauf, 57 Am. Rep. 880.
Dunn Snow, of Meridian, for appellee.
In the original suit, Walker against Cotton, damages were claimed by reason of the negligence of Cotton. Therefore, Cotton's negligence was involved in that case and was a necessary issue to the determination of that suit. Either Walker would win his case because Cotton was negligent, or, Cotton would win the case because Cotton was not negligent, or, because the negligence of the driver of Walker's car, if any, was the proximate cause of the accident.
Rowlands v. Morphis, 130 So. 906.
The defense of contributory negligence is an affirmative defense and must either be raised by special plea or by notice under the general issue. At the most, in order to take advantage of and to get the benefit of the defense of contributory negligence, the defendant must request an instruction submitting the defense to the jury or it will not be submitted.
Gulf Ship Island Railroad Company v. Saucier, 104 So. 180.
When the judgment has been rendered all rights of the litigants are merged in the judgment.
Pigford Grocery Company v. Wilder, 76 So. 745.
The cause of action may here be and we will assume is, different from the one in the case wherein the bonds were validated; nevertheless, the judgment there rendered is res adjudicata here, for the rule is that, in a second action between the same parties, or their privies, although the causes of action may be different, the judgment in the first action is res adjudicata in the second as to any point or question actually litigated and determined in the first.
Von Zondt et al. v. Town of Braxton, 115 So. 557; 15 R.C.L. 973; 34 C.J. 968; Y. M.V.R.R. Co. v. Sibley, 111 Miss. 21, 71 So. 167; Miller v. Bulkley, 85 Miss. 706, 38 So. 99.
A judgment in favor of the seller of a chattel for the balance of the price, rendered in a suit in which the issue of breach of warranty was passed upon is res judicata against the buyer's right to recover for breach of warranty in a subsequent action by him.
Miller v. Bulkley, 38 So. 99.
Now the action of that court in sustaining the demurrer on all the grounds assigned was an adjudication that plaintiff, the appellee here, was guilty of contributory negligence in the affairs out of which his claim arose. There was no appeal from that judgment in the former suit and the declaration in the present suit sets out the same conduct of appellant which, in the other case, was adjudged contributory negligence on his part. So we have an adjudication, unappealed from, denying the right to recovery because of the plaintiff's contributory negligence in the transaction in which he was injured, both shown by him in his declaration in the former suit, and again shown by him in the present action. It is res adjudicata.
Straw v. I.C. Ry. Co., 18 So. 847.
The thing adjudicated and not the reason given for the decision is that which may constitute an estoppel in another case.
Adams, State Revenue Agent, v. Y. M.V. Ry. Co., 24 So. 200.
All defenses to plaintiff's cause of action, which were set up and adjudicated are concluded by a judgment for plaintiff so that they cannot thereafter be urged as against further proceedings upon the same cause of action, or upon the judgment itself, or in further litigation between the same parties upon the same subject-matter. Under this rule matters alleged by way of defense to an action are fully negatived by the judgment therein, cannot afterwards be made the basis of a new action by the former defendant against the former plaintiff, even though in the subsequent action the complaint amplifies the former defense by stating the evidence to prove it.
34 C.J., p. 854, par. 1266.
If a point or question was issued and adjudicated in a former suit, a party bound by the judgment cannot escape the estoppel by producing at a second trial new arguments or additional or different evidence in support of the proposition, which was decided adversely to him.
34 C.J., p. 906, par. 96.
If a defendant, having a demand against plaintiff, pleads it as a set-off or counterclaim in the action, he must make the most of his opportunity and exhibit his whole damage for the judgment in the action will prevent him from afterwards using the same matter, or any part of it, as a separate cause of action against the former plaintiff, or a defense or counterclaim in any subsequent action between them, whether such set-off or counterclaim was allowed or disallowed, although some authorities have held that a part of the items of a counterclaim may be withheld from consideration and afterwards be used as a cause of action or set-off.
34 C.J. 862.
The weight of authority is that the judgment precludes the use of the matter as a set-off or counterclaim in a subsequent suit or as the basis of an independent suit against the former plaintiff.
34 C.J. 863, par. 6.
The present action cannot be maintained without showing that the said mortar was in fact unsuitable for the purpose for which it was bought and used, which issue of fact was before the justice in the action for the recovery of the price of the mortar. The general rule is that a former judgment on the merits, between the same parties, in a court of competent jurisdiction, is conclusive and final as to any issue actually litigated and determined in the former action, however erroneous, and which issue is essential to the maintenance of a second action between them, though it be brought upon a different cause of action.
Jones v. Charles Warner Co., 83 A. 131.
Where certain facts are pleaded as a defense in an action, and a final judgment rendered therein, necessarily deciding the merits of such defense, the same facts cannot again be the basis of an action between the same parties arising out of the same transaction, although, in the former action the facts were pleaded as a defense only and no claim made thereon for affirmative relief.
Bierer v. Fretz, 14 P. 558.
Of course, if the matter available as a counterclaim is relied upon by the defendant as a defense and the decision is against him it cannot afterwards be asserted either as a counterclaim or as a cause of action.
Jefferson-Noyes Brown v. Western National Bank, 138 S.W. 308.
Where a claim might or should have been pleaded and proven and adjudicated by the lower court at that trial, as it was necessarily involved, the claim is res adjudicata.
Vinson Co. v. United States Mortgage Co., 76 So. 827; Kimball v. L. N.R.R. Co., 48 So. 230.
Whether the former adjudication was right is not the subject or inquiry here now.
Straw v. I.C.R.R., 18 So. 847.
The authorities are too uniform and too numerous to cite that a judgment of a court in a matter within its jurisdiction, however erroneous, is final and conclusive if not appealed from. When not appealed from it is res adjudicata.
Fisher v. Browning, 66 So. 132.
The general rule is that a former judgment on the merits between the same parties in a court of competent jurisdiction is conclusive and final as to any issue actually litigated and determined in the former action, however erroneous, and which issue is essential to the maintenance of a second action between them, though it be brought upon a different cause of action.
Jones v. Charles Warner Co., 83 A. 131; Bierer v. Fretz, 14 P. 558.
The automobiles of Andrew Cotton and W.A. Walker collided on the streets of Macon, Mississippi. As is not unusual in such cases, the driver of each of these automobiles charged that the collision was the result of the negligence of the other. Thereafter the said W.A. Walker filed a suit against the said Andrew Cotton in the court of a justice of the peace for one hundred seventy-nine dollars and twenty-five cents, the alleged amount of damages to his automobile resulting from the negligence of the said Cotton, and recovered a judgment for the amount sued for. That cause was thereupon appealed to, and tried anew in, the circuit court, and the plaintiff therein, Walker, again recovered a judgment for the full amount sued for, and there was no appeal from that judgment.
While the above-mentioned cause was pending on appeal in the circuit court, the defendant therein, Andrew Cotton, filed a suit in the circuit court against the said W.A. Walker for damages alleged to have been sustained by him as a result of the negligence of the driver of Walker's automobile. The cause that originated in the justice court having proceeded to final judgment in the circuit court, the defendant in the cause instituted in the circuit court filed therein a plea of the general issue, and a special plea of res adjudicata alleging the following:
"Now comes the defendant in the above styled cause, by attorneys, and after leave of court first had and obtained for a further and special plea in this behalf says that the plaintiff ought not to have and maintain any action against the defendant in this behalf for the following reasons, to-wit:
"The alleged cause of action sued on by the plaintiff, Andrew Cotton, in this suit arises out of a collision between a Chevrolet truck belonging to the said Andrew Cotton and a Plymouth sedan belonging to the defendant, W.A. Walker, which occurred on Jefferson Street, near its intersection with Eighth street in the city of Macon, Noxubee County, Mississippi, on the 12th day of March, 1930, and the only ground of negligence complained of by the said Andrew Cotton in his declaration in this behalf is as set out in the original declaration in the following words, to-wit:
"`Plaintiff further alleges that the said Ben Walker was at the time of the impact driving at a great and unlawful rate of speed, coming south on the west side of Jefferson street past the intersection with Eighth street when ostensibly for the purpose of avoiding a collision with a car parked in front of the home now occupied by H.E. Dorroh, caused his car to be sharply swerved towards the east and ran on the east side of said street and collided with the plaintiff's truck.'
"That heretofore there was pending in the Circuit Court of Noxubee County, Mississippi, a certain cause numbered 2064, wherein W.A. Walker was the sole plaintiff and Andrew Cotton was the sole defendant, in which suit the said Walker was claiming damages of the said Andrew Cotton on account of injuries to his said Plymouth sedan arising out of the same collision above referred to.
"That in the pleadings of said Cause numbered 2064, and on the trial thereof the said Andrew Cotton plead both by way of defense in bar and by way of mitigation of damages, that the said collision had been either wholly or partially caused by the identical grounds of negligence upon which he now bases this suit in cause numbered 2072. That on the trial of said cause numbered 2064 the said Andrew Cotton himself testified, by way of defense, to an alleged state of facts tending to prove that the said W.A. Walker, by and through his son, Ben Walker, had been guilty of exactly the acts of negligence as complained of in the declaration in this suit numbered 2072. That on the trial of said cause numbered 2064, and at the request of the said Andrew Cotton the court granted certain instructions which submitted to the jury the issue of whether or not the said W.A. Walker, acting by and through his son, Ben Walker, had been guilty of any negligence in the premises which was either wholly or partially the proximate cause of the collision.
"The only proof before the court and jury on the trial of said cause numbered 2064, as to the extent of the damage to the Plymouth sedan of the said W.A. Walker was that the same had been damaged to the extent of one hundred seventy-nine dollars and twenty-five cents, no more and no less.
"That upon the trial of said cause numbered 2064, and upon the issues so presented to the jury the said jury returned a verdict in favor of W.A. Walker, in the full sum of one hundred seventy-nine dollars and twenty-five cents, upon which verdict the Circuit Court of Noxubee County thereupon, on the 18th day of February, 1931, entered its final judgment, which judgment now remains in full force and effect.
"Wherefore, the said W.A. Walker says that the said verdict and judgment entered thereon in cause numbered 2064 was and is a final and conclusive adjudication as between the said W.A. Walker and Andrew Cotton by a court of competent jurisdiction; that in truth and in fact the said collision, above referred to out of which this suit grows was wholly caused by the negligence and fault of the said Andrew Cotton and that no negligence or fault on the part of W.A. Walker or his son, Ben Walker, in any wise proximately contributed thereto.
"True and correct copies of the original declaration, the counter affidavit or plea of the defendant, Andrew Cotton, the instructions of the court granted at the request of Andrew Cotton, the verdict of the jury and the final judgment thereon in said cause numbered 2064 are hereto attached and marked Exhibits `A' to `F' inclusive and prayed to be taken and considered a part of this plea.
"All of which this defendant is ready to verify."
To the special plea of the defendant Walker there were attached copies of the original declaration or claim of the plaintiff, the counter affidavit and plea of the defendant, Cotton, the instructions granted at his request, the verdict of the jury, and the judgment thereon, in the said cause numbered 2064, which said exhibits substantiated the averments of the special plea as to the issues submitted to the jury in said cause.
To this special plea the plaintiff, Andrew Cotton, filed a replication admitting that the two suits grew out of the same collision, but denying that the grounds of negligence in the two suits were identical, for the reason that other and additional evidence had been discovered which would be offered on the trial of the cause then pending, and averring that the plaintiff therein should not be barred of his right of recovery by reason of anything set up in the special plea, for the reason that the plaintiff had a cause of action against the defendant which he had never had an opportunity of having adjudicated by a court of competent jurisdiction; that new and additional evidence bearing upon the question of the alleged negligence of the respective parties had been discovered; and that in the trial of the former cause the court granted the plaintiff therein an erroneous and prejudicial instruction. Upon motion of the defendant, Walker, this replication was stricken by the court, and the plaintiff having thereupon refused to plead further, a judgment was entered in favor of the defendant, and from this judgment this appeal was prosecuted.
The pleadings in the case at bar admit that it and the case originating in the justice court were based upon, and grew out of, a collision between an automobile belonging to W.A. Walker, appellee herein, and a truck belonging to Andrew Cotton, appellant herein. They admit that Walker brought a suit against the said Cotton in a justice court for the damages to his automobile, resulting from said collision; that the said Cotton therein elected to and did plead the alleged negligence of the driver of the Walker automobile as a defense both in bar and in mitigation of the damages; and that, at the instance of the said Cotton, the issue of whether or not the driver of Walker's automobile was guilty of any negligence which caused or contributed to the injury and damage resulting from the collision was expressly submitted to the jury. The verdict and judgment in Walker's favor in that case for the full and exact amount sued for was an adjudication that his driver was guilty of no negligence which contributed to the accident.
In the first suit filed, the question of whether or not Walker was guilty of any negligence which contributed to the accident or injury was, at the instance of Cotton, actually litigated and determined, and the verdict and judgment rendered were necessarily an adjudication that he was guilty of no negligence. This being true, can the appellant, Cotton, afterwards predicate a right to recovery upon the same alleged acts of negligence of the said Walker? We think not. The rule is that in a second action between the same parties, or their privies, although the causes of action may be different, the judgment in the first action is res adjudicata in the second as to any point or question actually litigated or determined. Von Zondt v. Town of Braxton, 149 Miss. 461, 115 So. 557. While we have not found that the exact point presented by this record has been heretofore decided by this court, the case of Miller v. Bulkley, 85 Miss. 706, 38 So. 99, presented an analogous question and is very persuasive on the point here presented. It was there held that: "Where the seller sued for the price of a chattel and the buyer pleaded a breach of warranty in defense, a judgment in plaintiff's favor will bar any subsequent action by the buyer for a breach of the warranty."
In 34 C.J. 854, the rule is stated in the following language: "All defenses to plaintiff's cause of action which were set up and adjudicated are concluded by a judgment for plaintiff, so that they cannot thereafter be urged as against further proceedings upon the same cause of action, or upon the judgment itself, or in further litigation between the same parties upon the same subject-matter. Under this rule matters alleged by way of defense to an action, and fully negatived by the judgment therein, cannot afterward be made the basis of a new action by the former defendant against the former plaintiff, even though in the subsequent action the complaint amplifies the former defense by stating the evidence to prove it."
This doctrine was also applied in the case of Jones v. Charles Warner Company, 2 Boyce (25 Del.) 566, 83 A. 131, 134, where, in a suit for the purchase price of certain mortar in which the defense was that the mortar was unsuitable for the purpose for which it was purchased, the seller recovered a judgment which was paid; and afterwards suit was brought by the purchaser of the mortar against the seller to recover on account of the damage resulting from the unsuitableness of the mortar. The first action was pleaded in bar of the second, and in passing upon the question presented the court said:
"The present action cannot be maintained without showing that the said mortar was in fact unsuitable for the purpose for which it was bought and used, which issue of fact was before the justice in the action for the recovery of the price of the mortar.
"The rule is general that a former judgment on the merits, between the same parties, in a court of competent jurisdiction, is conclusive and final as to any issue actually litigated and determined in the former action, however erroneous, and which issue is essential to the maintenance of a second action between them, though it be brought upon a different cause of action."
In the case of Bierer v. Fretz, 37 Kan. 27, 14 P. 558, it was held that: "Where certain facts are pleaded as a defense in an action, and a final judgment rendered therein, necessarily deciding the merits of such defense, the same facts cannot again be the basis of an action between the same parties arising out of the same transaction, though in the former action the facts were pleaded as a defense only, and no claim made thereon for affirmative relief."
It is insisted, however, that the judgment in the first case between these parties is not a bar to the present action for the reason that other and additional evidence has been discovered, and that the court committed error in granting an instruction in the trial of the first cause. If error was committed in the trial of the first cause, the remedy was by appeal from the judgment rendered therein, and that judgment, unappealed from, is conclusive of all the issues therein litigated and determined. In Straw v. Illinois Central R. Co., 73 Miss. 446, 18 So. 847, the court said, "Whether that former adjudication was right is not the subject of inquiry here now," and in Fisher v. Browning, 107 Miss. 729, 66 So. 132, 136, Ann. Cas. 1917C, 466, the court said: "We think the authorities are too uniform and too numerous to cite that a judgment of a court in a matter within its jurisdiction, however erroneous, is final and conclusive if not appealed from."
The allegations of the special plea constituted a complete defense to the declaration filed by the appellant, and since there was no denial of the facts stated therein, the judgment of the court below was correct.
Affirmed.