Opinion
No. 24639
Decided November 21, 1934.
Res judicata — Judgment on pleadings erroneous — Disagreement as to identity of issues involved in two cases — Insurance — Suit by insurance company against tortfeasor to recoup payments for property damage — Defendant pleaded favorable verdict in personal injury suit — Negligence.
ERROR to the Court of Appeals of Miami county.
On June 15, 1931, Albert F. Kuhl and John Redman, the plaintiff in error, were the respective owners and operators of two motor vehicles that became involved in a collision.
Kuhl had a so-called collision insurance policy with The North River Insurance Company, the defendant in error. He filed with the company a claim for property damage to his automobile, and shortly received the sum of $1275 in full settlement thereof.
Subsequently on February 25, 1932, Kuhl filed an action against Redman asking damages for alleged injuries to his person.
Thereafter on April 19, 1932, the company filed the instant action against Redman asking judgment against him for the $1275 it had paid Kuhl. To the company's petition Redman filed an amended answer alleging two defenses. The second of these was that of res judicata expressed in the following language:
"Further answering and by way of second defense to plaintiff's petition, defendant repeats and reavers each and every allegation in his first defense contained and makes the same a part of this defense the same as if here rewritten and avers that on the thirty-first day of March, 1933, in an action in this court No. 26205 on the dockets thereof, wherein the said Albert F. Kuhl was plaintiff and this defendant was defendant, wherein the issues were the same as in the petition herein, after a trial had before a jury on the merits thereof, said defendant recovered a judgment in his favor and by reason of said fact all the issues involved herein have now been adjudicated in favor of defendant."
The plaintiff filed a motion to strike this defense from the amended answer. This was overruled, as was a subsequent motion by the plaintiff to strike the entire amended answer from the files.
Then the plaintiff filed the following reply:
"For reply to the second defense contained in said amended answer, admits that, in Case No. 26205 on the dockets of said court, wherein Albert F. Kuhl was plaintiff and John Redman was defendant, a trial was held on the merits of that case; admits that said Albert F. Kuhl did not recover a judgment but lost, said case, but denies that by reason of said verdict in said case, that the issues involved in this case have been adjudicated in favor of the defendant, John Redman, for the following reasons:
"First. That this plaintiff is the real party in interest herein, having been subrogated in full before either action was filed and upon the date the cause of action arose, and the payment in full of all said damages to the automobile of said A.F. Kuhl in the sum of one thousand two hundred seventy-five dollars ($1275.00) under the provisions of said contract of insurance as set forth in the petition herein, which policy contract was in full force and effect at the time said cause of action arose, to all the interest, claim or action of said Albert F. Kuhl to damages to his property as a result of the negligent acts of said defendant as set forth in the petition;
"Second. That said action brought by Albert F. Kuhl was founded upon personal injuries and medical expenses sustained by said Albert F. Kuhl and not for any damages as pleaded and alleged by this plaintiff herein;
"Third. That said Albert F. Kuhl in said Case No. 26205 had no interest, title or right to maintain an action for the recovery of damages to his said auto so alleged in the petition herein, for the reason that before either action was filed this plaintiff paid all and in full to said Albert F. Kuhl the damages to said automobile occasioned by the negligence of said defendant as set forth in the petition.
"Fourth. That the result received in Case No. 26205 was not a judicial determination of the cause of action existing in this case.
"Fifth. That Cause No. 26205 was filed and pending at the same time this action was pending, in the same court, and that defendant made no objection thereto until after the verdict in the case brought by Albert F. Kuhl was received and that such failure acts now as an estoppel thereof."
Thereafter the defendant filed a motion for judgment on the pleadings "for the reason that it is admitted by plaintiff in its reply that a judgment was rendered in favor of defendant in the cause previously instituted and tried, wherein Albert F. Kuhl was plaintiff, and the defense of res adjudicata set up in the amended answer heretofore filed on behalf of defendant constitutes an absolute defense to this action and defendant is therefore now entitled to final judgment in this cause." This motion was granted.
Error was prosecuted to the Court of Appeals with the result that the judgment of the Court of Common Pleas was reversed and the cause remanded.
The case is in this court by reason of the allowance of a motion to certify.
Messrs. Faust Faust and Messrs. Thomas, Hyers Leyland, for plaintiff in error.
Mr. Clifford R. Curtner and Mr. Baird Broomhall, for defendant in error.
The single question here for determination at this time is whether the admissions contained in the company's reply justify the action of the trial court in rendering judgment in favor of Redman.
A study of the material part of the reply discloses two admissions. The first is that there was a trial in the case in which Kuhl was the plaintiff and Redman the defendant. The second is that Kuhl "did not recover a judgment but lost said case." Then follows a denial that "the issues involved in this case have been adjudicated in favor of the defendant, John Redman." Thus it is apparent that the company and Redman are in disagreement as to the identity of the. issues involved in the two cases. Under this state of the pleadings the question of res judicata is not determinable from them alone.
However, it is urged by Redman that in the trial of the case of Kuhl v. Redman the jury in answering certain interrogatories found Kuhl guilty of contributory negligence. Even if the jury so found, this fact obviously cannot enter into a consideration of the instant question inasmuch as it involves evidence aliunde. Therefore until the precise nature of the defense of res Judicata is adequately presented it would be inconsistent with the proprieties and probably serve no useful purpose for this court. to speculate with reference thereto to the extent of indulging in a theoretical discussion of the law relating to the various problems that may eventually materialize.
In view of the foregoing the judgment of the Court of Appeals is affirmed and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, BEVIS, ZIMMERMAN and WILKIN, JJ., concur.