Opinion
March 6, 1939.
1. — Judgment. The final judgment of a competent court is the very end of the issues presented for determination and, in some instances, of all issues which could have been presented.
2. — Judgment. Where parties tried a cause upon the theory the issue of plaintiff's contributory negligence was in the case, they were bound by such theory.
3. — Judgment. A judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the parties. It must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this had in the record, the whole subject matter of action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.
4. — Judgment. Held, that face of record and extrinsic evidence fail to show that in prior action plaintiff in subsequent action was not guilty of contributory negligence, where under instructions in prior action jury could have found issues for defendant unless collision was due to defendant's negligence, or that collision caused plaintiff's injuries, and that plaintiff was in exercise of highest degree of care, it being impossible for reviewing court to determine upon what condition verdict was based.
5. — Judgment — Res Judicata. One who pleads res judicata has the burden of proving that the "thing adjudged" in the first suit was the "same thing to be adjudged" in the second suit.
Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
REVERSED AND REMANDED.
Fred Bellemere, Eugene R. Brouse and Roy W. Rucker for appellant.
(1) Where separate causes of action grow out of the same transaction cross-actions may be maintained and neither will bar the other. 34 C.J. 867. In order for a prior judgment to be conclusive of an issue in a second suit a showing must be made that the precise question was raised and determined in the former suit. In case of uncertainty the whole subject matter in the second suit will be opened to new contention. Perry v. First National Bank, 91 S.W.2d 78, 80; Johnson v. Johnson, 56 S.W.2d 1069, 1072. (2) The plaintiff having made no showing of any negligence on the part of defendant, defendant's demurrer should have been sustained. (3) The court should have allowed defendant to file his amended answer to plaintiff's amended petition. Chap. V, Art. 6, R.S. Mo. 1929.
Calvin Kimbrell for respondent.
(1) The trial court did not hold, that the cause of action alleged in cause No. 421523, was the same as the cause of action alleged by the respondent in the case at bar; that all issues of negligence, between the parties, in the instant case, had been adjudicated in the prior action. (2) The appellant, as plaintiff in cause No. 421523, having, by his petition therein, raised and tendered, for the determination of the jury, in said cause, the issue or issues of fact of the respondent's negligence therein; and, the respondent, as defendant, in said cause, having, by his answer therein, raised and tendered, for the determination of the jury, in said cause, the issue or issues of fact of the appellant's negligence therein; and, the judgment, in said cause, having been in favor of the respondent and against the appellant; and, said judgment having become final, the trial court did not err in holding that all issues of fact of the negligence of the appellant and all issues of fact of the negligence of the respondent, as between them, had been fully and finally adjudicated, by the judgment in said cause; and, did not err in holding that the only question which should be submitted to the jury, in the cause at bar, was the question as to the amount of damages which the respondent had sustained. In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662; Mo. Pac. Ry. Co. v. Levy, 17 Mo. App. 501; 34 C.J., p. 742, sec. 1154, p. 811, sec. 1231, p. 818, sec. 1236; Browne v. Moran (Mass.), 14 N.E.2d 119; Cotton v. Walker, 164 Miss. 208, 144 So. 45; Winters v. Bisaillon, 153 Or. 509, 57 P.2d 1095; Freitag v. Renshaw (N.J.), 157 A. 455, 9 N.J.M. 1161; Esper v. Manhattan Transit Co. (N.J.), 169 A. 823, 112 N.J.L. 186; Henderson v. United States Radiator Corp. (C.C. 290 A. 10), 78 F.2d 674; Serpell-Winner-Jordan v. Crete Mills (C.C.A. 8), 51 F.2d 1028; Brooks v. Arkansas-Louisiana Pipe Line Co. (C.C.A. 8), 77 F.2d 965; Beck v. Hill (C.C.A. 10), 91 F.2d 75; Meyer v. Surkin, 262 Ill. App. 83. (3) In an action between the parties — plaintiff and defendant — a question or issue of fact, having been determined by a final judgment in the cause, cannot be again litigated, between the same parties, in a subsequent action; and, such question or issue of fact, having thus been once adjudicated, is, as between the parties, finally and forever determined. (4) The judgment in cause No. 421523, having been entered upon a general verdict, resolved all issues submitted to the jury, for its determination, in favor of the respondent as the prevailing party. 64 C.J., p. 1053, sec. 847; 27 Ruling Case Law, p. 843 et seq.; Winkelman v. Maddox, 119 Mo. App. 658, 95 S.W. 308; National Cash Register Company v. Kay (Mo. App.), 93 S.W.2d 260, l.c. 263; State v. Bliss (Mo.), 99 S.W.2d 71; Flournoy v. Lastrapes, 99 U.S. 406, 25 L.Ed. 406; Serpell-Winner-Jordan v. Crete Mills (C.C.A. 8), 51 F.2d 1028, 80 A.L.R. 716; Atchison, Topeka and Santa Fe Railway Co. v. Osburn, 79 Kan. 348, 100 P. 473; Fidelity and Casualty Company of New York v. Huse and Carleton, 272 Mass. 448, 172 N.E. 590, 72 A.L.R. 1143; Genard v. Hosmer (Mass.), 189 N.E. 46, 91 A.L.R. 543. (5) The testimony adduced upon the trial of the instant cause, and the admissions made thereupon, fully complied with and satisfied the legal requirement as to the necessity of identity of the parties; and, also, fully met and satisfied the legal requirement of the law as to the necessity of a decision on the merits. 34 C.J., p. 576, sec. 1165, p. 774, sec. 1193; Missouri Pacific R. Co. v. American Surety Co., 291 Mo. 92, 236 S.W. 657; Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 10 L.R.A. (N.S.), 140; Danciger v. American Express Company, 192 Mo. App. 106, 179 S.W. 806; Wilson and Company, Inc., v. Hartford Fire Insurance Co., 300 Mo. 1, 254 S.W. 266; Johnson v. United Ry. Co., 243 Mo. 278, 147 S.W. 1077; Couch v. Harp, 201 Mo. 457, 100 S.W. 9; Swing v. Karges Furniture Co., 150 Mo. App. 574, 131 S.W. 153. (6) The cause, No. 421523, having been brought to trial upon the pleadings of the parties thereto in which the issues involved therein were definitely alleged and defined; and, said cause having been heard and tried upon the evidence submitted, pro and con, by the parties thereto; and, the same having been decided by the verdict of the jury therein, the judgment rendered thereon, and in pursuance thereof, was a judgment upon the merits. 34 C.J., p. 775, sec. 1194. (7) The pleadings on behalf of the parties in cause No. 421523, and the instructions of the court which were given therein, clearly showed what issues were submitted and determined in said cause. However, it must be presumed that the evidence introduced upon the trial of said cause, was within the pleadings, and was sufficient to warrant the court in submitting the cause upon the instructions given therein. (8) The court did not err in refusing to sustain the defendant's demurrer offered at the close of all the testimony, neither did it err in refusing to instruct the jury that, under the pleadings, the law and the evidence, the plaintiff was not entitled to recover. (9) Neither did the court err in refusing to permit the defendant to file an amended answer to the plaintiff's amended petition in this cause. (10) The record in the case at bar embodying the specific allegations of negligence in the pleadings of the respective parties in Maris v. Jungeblut, and the instructions given by the respective parties upon the issues of negligence raised by the pleadings, affirmatively, and with precision, shows the issues of negligence litigated and determined in the prior action.
Plaintiff's petition alleged that on April 17, 1933, while in the exercise of the highest degree of care he drove his automobile in a southerly direction upon Brooklyn Avenue, a north and south street in the city of Kansas City, Missouri, and into and across Thirty-eighth Street, an east and west street in said city; that at the same time defendant carelessly and negligently drove his automobile in a westerly direction upon said Thirty-eighth street and in close proximity to the intersection of Brooklyn Avenue, in consequence of which the automobiles collided and injured plaintiff. The petition further alleged numerous specific acts of negligence on the part of defendant, among which was the violation of an ordinance of Kansas City. Other allegations in the petition concerning the legal effect of a judgment rendered in a cause, hereinafter called the former action, in which the present defendant was plaintiff and the present plaintiff was defendant, will be stated in our discussion of the single question brought here on this appeal, namely, whether or not the judgment in the former action was res judicata of all issues of negligence of the parties in the case at bar.
The answer, filed in due time, was a general denial.
Trial to court and jury resulted in verdict and judgment for plaintiff for $5,000. The defendant has appealed.
The defendant in the present suit, after the jury was empanelled and before evidence was heard, tendered and requested leave to file an amended answer, which stated a general denial and that plaintiff was guilty of contributory negligence. When the request was made the defendant admitted the pleadings, verdict and judgment in the former action were correctly pleaded in plaintiff's petition in the instant cause. While the court was considering the request the defendant offered in evidence the instruction given to the jury in the former action. The request was denied upon the ground that the issues of negligence of the plaintiff and the negligence of the defendant were adjudicated in the former action and that such issues were at rest. Thereupon plaintiff introduced evidence showing the injuries suffered by him in the collision, but did not offer any evidence tending to show that he exercised the highest degree of care or that defendant was negligent.
The defendant at the close of the evidence requested the court to direct verdict in his favor. The request was refused. Of course the defendant was entitled to the verdict unless the judgment in the former action was res judicata of all issues of fact concerning the negligence of the parties hereto.
The petition in the former action alleged the collision occurred upon the intersection of 38th street and Brooklyn Avenue and charged the collision was caused by the negligence of the defendant, in that he failed and neglected to keep a lookout for automobiles passing upon said intersection; negligently approached the intersection at a high and dangerous rate of speed; failed to have the automobile under control when he knew or in the exercise of ordinary care could have known that automobiles might be crossing the intersection; negligently failed to give warning of his approach. The answer alleged that if plaintiff sustained any injuries at the time and place stated in his petition such injuries were directly caused by his carelessness and negligence.
"(a) in carelessly and negligently driving his automobile, as he did at the aforesaid time and place, in a westerly direction, upon Thirty-eighth Street, and into and across the intersection of Brooklyn Avenue, to which reference is made in his petition herein, at a high, dangerous and reckless rate of speed;
"(b) in carelessly and negligently failing, as he did at the aforesaid time and place, to stop the same, check the speed thereof, or divert the course thereof, before allowing the same to come into contact and collision with the automobile which was then and there being driven by the defendant, Alvin H. Jungeblut, in a southerly direction, upon Brooklyn Avenue, and into and across the intersection of Thirty-Eighth Street; and,
"(c) in carelessly and negligently driving his automobile, as he did at the aforesaid time and place, in a westerly direction, upon Thirty-eighth Street and into the intersection of Brooklyn Avenue, while and as the automobile which was being driven by the defendant, Alvin H. Jungeblut, which had theretofore entered said intersection, was proceeding thereover, in a southerly direction."
The answer concluded with a general denial; the verdict of the jury was a general one in favor of the defendant; the judgment was in accordance with the verdict. The petition in the instant case pleaded all of the matters concerning the former action, to which we have referred, except the instructions given to the jury were referred to in general terms.
It suffices to say the final judgment of a competent court is the very end of the issues presented for determination and in some instances of all issues which could have been presented. [North St. Louis Gymnastic Society v. Hagerman, 232 Mo. 693, 135 S.W. 42; Powell v. City of Joplin, 73 S.W.2d 408; Perry v. First National Bank, 91 S.W.2d 78.]
The question here is, what issues were determined in the former action? The petition in that cause alleged the plaintiff was injured in a collision of the automobiles on the intersection of the streets; that the collision was caused by the negligence of the defendant. The answer was not a mere general denial; it averred certain acts and omissions of the plaintiff were the direct cause of the collision. It has been held that similar allegations were sufficient to charge that a plaintiff was guilty of contributory negligence. [Cox v. Bondurant, 220 Mo. App. 948, 7 S.W.2d 403, 405.] Be that as it may, if the parties tried the cause upon the theory the issue of plaintiff's contributory negligence was in the case, then they were bound by such theory. [Miller v. Engle, 172 S.W. 631, 639.] The case made by the petition was one in which contributory negligence of the plaintiff would defeat recovery by him. The instructions disclose the cause was submitted to the jury upon the theory that if plaintiff were guilty of contributory negligence or if the defendant's negligence were only a contributing cause, then the verdict should be for the defendant.
Instruction No. 1 covered the whole case, was the only instruction which authorized a verdict for plaintiff; it in substance submitted to the jury whether or not defendant was negligent, as charged in the petition, and advised the jury if it found defendant were negligent, and if it further found "that plaintiff in the operation of his automobile was in the exercise of the highest degree of care for his own safety," then the verdict should be "for the plaintiff in such sum as" it found and believed would "fully compensate him for the injuries, if any, . . ."
Instruction "E" told the jury that if it found the collision was not caused by any negligence of the defendant or if it found defendant was negligent, but that his negligence, if any, was only a contributing cause, then the verdict would be for the defendant. Other instructions told the jury in effect that if the plaintiff were guilty of certain specific negligence, as stated therein, the verdict should be for the defendant. The jury, under instruction No. 1, should have found the issues for the defendant unless it found (1) that the collision was due to the negligence of defendant; (2) that the collision caused plaintiff to be injured, (3) and that plaintiff was in the exercise of the highest degree of care. Thus the jury may have returned the verdict because it found plaintiff was not injured in the collision, or it may have arrived at the verdict because it believed plaintiff was not in the exercise of the highest degree of care. The issues should have been found for the defendant under instruction E even though the jury found defendant was negligent upon the further finding that such negligence was only a contributing cause of the collision.
It is therefore impossible for this court to determine whether or not the verdict was based upon a finding that plaintiff was not injured, or upon a finding that he was not exercising due care, or upon a finding that the negligence of defendant was only a contributing cause.
On the record this cause comes within the rule approved in the Perry case, supra, as follows:
"It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this had in the record — as, for example, it would appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered — the whole subject matter of action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined."
The face of the record and the extrinsic evidence fail to show that it was determined in the former action that the present plaintiff was not guilty of contributory negligence.
Furthermore, plaintiff's petition in the instant case alleged he was in the exercise of the highest degree of care and that while in the exercise of such care he was injured by the negligence of the defendant. These allegations are not consistent with the claim that all questions of negligence were settled by the judgment in the former action.
The plaintiff cites numerous cases in which it was held the rule of res judicata applies in negligence cases with the same force and effect as in all other cases. The rule in this State is that the one who pleads res judicata has the burden of proving that the "thing adjudged" in the first suit was the "same thing to be adjudged" in the second suit. [North St. Louis Gymnastic Society case, supra.]
In the instant case the plaintiff offered no evidence tending to show the defendant was negligent and, for that reason, the cause should not have been submitted to the jury.
The judgment is reversed and the cause remanded. Sperry, C., concurs.
The foregoing opinion of CAMPBELL, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded. All concur.