Opinion
February 8, 1935.
1. JUDGMENT AGAINST SEVERAL DEFENDANTS: Res Adjudicata: Adversary Parties. A judgment for damages against two or more defendants while conclusive between each defendant and plaintiff is not conclusive between the several defendants whose conflicting claims were not brought in issue so as to make them adversary parties.
In such case the mere effort of one defendant to escape liability by attempting to throw the burden on a codefendant does not make the defendants adversaries.
2. JUDGMENT AGAINST SEVERAL DEFENDANTS: Res Adjudicata. In an action upon a different claim or demand only those facts or matters are conclusively established by the former adjudication which are essential to, or involved in, the judgment or decree rendered.
In an action in tort against several defendants the determination of primary and secondary liability of the defendants was not essential to or involved in the judgment.
That a judgment against several defendants may determine the ultimate rights of the parties on each side between themselves does not make codefendants adversaries.
3. JUDGMENT AGAINST SEVERAL DEFENDANTS: Contribution: Indemnity. Under Section 3268, Revised Statutes 1929, ordinarily in the absence of anything further a judgment sounding in tort against two or more defendants would be a prima facie showing for contribution as between defendants.
But that does not apply to an action at common law for indemnity by one judgment codefendant against another.
4. JUDGMENT AGAINST SEVERAL DEFENDANTS: Res Adjudicata. In an action for damages for personal injuries against a telegraph company, a telephone company whose pole the telegraph company had leased, and against a light company whose defective cross-arm on said pole caused the injury sued for, a judgment against all three defendants was not conclusive against the electric light company and telegraph company in an action by the telephone company against them for indemnity where the two latter companies were not given an opportunity to control the defense of the telegraph company in the damage suit.
5. JUDGMENT AGAINST SEVERAL DEFENDANTS: Contribution: Indemnity. Where in an action for tort judgment was rendered against three defendants and one of them after paying the judgment sued the others for indemnity it could not recover on the ground that it was entitled to contribution since under the pleadings the defendants had no opportunity to defend against the contribution.
Appeal from Circuit Court of City of St. Louis. — Hon. O'Neill Ryan, Judge.
AFFIRMED.
Francis R. Stark and Jones, Hocker, Sullivan, Gladney Reeder for Missouri District Telegraph Company.
(1) Missouri District is entitled to indemnity from Union and Bell. (a) The rotten cross-arm was the causa sine qua non of the former judgment which Missouri District was compelled to pay. (b) Union and Bell erected and maintained the rotten cross-arm in the path of Rose's duty as a servant of Missouri District, a lessee of the pole. (c) Missouri District failed in its duty to warn Rose against the danger of the cross-arm so erected and maintained by Union and Bell. (d) Missouri District's liability to Rose was a liability to which Missouri District was subjected and exposed by the negligence of Union and Bell. (e) Union and Bell are liable over to Missouri District for the damages adjudged to Rose and against Missouri District on account of the rotten cross-arm negligently maintained in the path of Rose's duty by Union and Bell. Merritt v. Kinloch Tel. Co., 215 Mo. 299; Kinloch Tel. Co. v. St. Louis, 268 Mo. 485; Busch Latta Painting Co. v. Cons. Co., 310 Mo. 437; Springfield v. Clement, 205 Mo. App. 118; Gray v. Gas Light Co., 114 Mass. 149; Fid. Cas. Co. v. Ill. Co., 140 Minn. 229, 167 N.W. 801; Alaska Steamship Co. v. Gypsum Co., 71 Wn. 359, 128 P. 654; Ry. Co. v. Pigott, 54 Tex. Civ. App. 367, 116 S.W. 847; Electric Co. v. Tel. Co., 31 F.2d 52; Washington Gas Co. v. Dist. of Columbia, 161 U.S. 328; Union Stock Yards v. Railroad Co., 196 U.S. 217. Plaintiff's right to be indemnified by the defendants includes its right to recover its reasonable and just expenses in connection with the former litigation, including reasonable attorneys' fees. Robbins v. Chicago, 4 Wall. 674; Town of Waterbury v. Traction Co., 74 Conn. 152, 50 A. 7; Westfield v. Mayo, 122 Mass. 100, 23 Am. Rep. 292; Canal Co. v. County Commissioner, 57 Md. 201, 40 Am. Rep. 437; Mors-Le-Blanch v. Wilson, 8 Common Pleas, 227; Wakefield v. Edison Co., 179 N.Y.S. 606. (2) This is an action upon a joint judgment to which plaintiff and defendants were parties. In such action the former judgment is conclusive evidence of the facts constitutive of the liability of all the parties to Rose. Concretely, it is conclusive evidence of the facts as to the existence, ownership and legal accountability for the rotten cross-arm. (a) It would be conclusive evidence of such facts if in the former action Rose had sued only Missouri District and the latter had "vouched in" Union and Bell as being primarily liable for an injury directly caused by the rotten cross-arm. Strong v. Phoenix Ins. Co., 62 Mo. 289; Lovejoy v. Murray, 3 Wall. 1; Robbins v. Chicago, 4 Wall. 657; Washington Gas Co. v. Dist. of Columbia, 161 U.S. 316. (b) With the stronger reason is it conclusive evidence of such facts when (1) Union and Bell were made joint parties defendant in a petition which directly charged Union with the ownership of the cross-arm and charged Union and Bell with negligently maintaining it in its dangerous condition in the path of Rose's duty; (2) when Union and Bell contested the facts not only as against Rose, but stubbornly and even bitterly as between themselves, Bell undertaking to shunt aside the ultimate responsibility and to fasten it upon Union by proving that Union, despite the noncommittal entries on its record, did verily own the rotten cross-arm. In this case the ownership of the rotten cross-arm is rem adjudicatem. There should be an end of litigation. Kinloch Tel. Co. v. St. Louis, 268 Mo. 485, 215 Mo. 299; Gerber v. Kansas City, 311 Mo. 49; First Natl. Bank v. First Natl. Bank, 68 Ohio St. 43, 67 N.E. 93; Fulton County Gas Co. v. Telephone Co., 200 N.Y. 287; Osage City Bank v. Jones, 51 Kan. 379, 32 P. 1096; Norfolk, etc., Ry. v. Munday, 66 S.E. 61; Caldwell v. Blodgett, 256 F. 744. (3) The lease from Bell to Missouri District does not obligate Missouri District to indemnify Bell for the consequences of Bell's own negligence. Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 543; Stebbins v. Welig, 257 F. 234; Natl. Surety Co. v. Roth, 208 Mo. App. 283; Perry v. Payne, 217 Pa. 252; Marshall v. Railway Co., 112 A. 526, 10 Am. Eng. Ann. Cas. 593. (4) If not entitled to indemnity from the defendants, plaintiff is at all events entitled to contribution from them. Knapp, Stout Co. v. St. Louis, 156 Mo. 353; State v. Land Co., 161 Mo. 671; Barnett v. Ground, 304 Mo. 606; Knight v. Railway Co., 120 Mo. App. 323; Musgrove v. Bank 187 Mo. App. 496.
Smith B. Atwood, James A. Waechter and Frank P. Aschemeyer for Southwestern Bell Telephone Company; Earl H. Painter of counsel.
(1) The action of indemnity is ex contractu. The contract may be express or implied. In a case such as this, it does not arise from the degree of negligence toward the party injured, but from the relationship of the parties between whom the implication of a contract exists. This contractual relation must be proven; and it is not proven by a mere showing that both were negligent toward the party injured (e.g., the Rose judgment). 31 C.J., p. 420, sec. 4, p. 447, sec. 47, p. 449, sec. 49, p. 244, sec. 10, p. 574, sec. 556; 1 Restatement of Law of Contracts, p. 7, sec. 5. This relationship must be established by facts dehors the Rose judgment, and since it is not so established, plaintiff cannot recover. (a) The Bell introduced a a new matter constituting a defense, in the nature of an express written contract providing for indemnity for the Bell. This express contract supersedes any other contract that could conceivably arise by implication. (2) The declaration of law in the nature of a demurrer to the evidence was properly given at the request of Bell, because: (a) Plaintiff's petition does not state a cause of action for indemnity. Springfield v. Clement, 205 Mo. App. 128; Columbia v. Malo, 217 S.W. 627. (b) The evidence is insufficient to entitle plaintiff to indemnity: The suit is not upon the Rose judgment, since the cause of action attempted to be asserted here is not upon the same cause of action or between the same parties as in the Rose case. The defendants in the Rose case were not adversary parties and there were no issues inter se (on the pleadings) between the defendants. Freeman on Judgments (5 Ed.), sec. 690; Murphy v. De France, 101 Mo. 159; State ex rel. v. Muench, 217 Mo. 137; Joyce v. Growney, 154 Mo. 264; Charles v. White, 214 Mo. 187. The judgment roll in the Rose case is incompetent and of no evidentiary value here since the three defendants in the Rose case were not adversary parties and there were no cross-pleadings and issues between Missouri District and Bell, hence the Rose judgment constitutes neither a bar nor an estoppel. 34 C.J., pp. 745-6; Black on Judgments, sec. 506; Case v. Sipes, 280 Mo. 120; Baumhoff v. Railroad, 205 Mo. 269; 34 C.J., pp. 1040-42; 1 Freeman on Judgments (5 Ed.), sec. 422; M.K. T. Ry. Co. v. Am. Surety Co., 291 Mo. 110; O'Rourke v. Ry. Co., 142 Mo. 353; Souther v. Woodruff Realty Co., 175 Mo. App. 256; McMahan v. Geiger, 73 Mo. 145; Charles v. White, 214 Mo. 187; Eaton Prince Co. v. Trust Co., 123 Mo. App. 117; Springfield v. Plummer, 89 Mo. App. 515; Gerber v. Kansas City, 311 Mo. 49; Wiggin v. St. Louis, 135 Mo. 558; Mullins v. Kansas City, 200 Mo. App. 641; Costello v. Kansas City, 209 Mo. App. 155. Regardless of the allegations of negligence in the Rose petition as to Missouri District, its duty and liability to Rose is determined by the rules of law governing the relationship of master and servant, and on the issue of liability over, Missouri District is charged with all the obligations of a master to his servant, no matter how circumscribed Rose's allegations may have been. Klebe v. Parker Dist. Co., 207 Mo. 480; Hoffman v. Peerless White Lime Co., 317 Mo. 86; Rutledge v. Swinney, 261 Mo. 128, 169 S.W. 17; Lutgen v. Standard Oil Co., 221 Mo. App. 773, 287 S.W. 885; Spindler v. Am. Express Co., 232 S.W. 690; Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 562. There could be no estoppel, as to Bell, of any fact or issue decided between Rose and Missouri District since Missouri District neither alleged nor proved that Bell was tendered the defense of that case by Missouri District, or given the opportunity of controlling the defense of that suit in behalf of Missouri District. Stewart v. Thomas, 45 Mo. 42; Strong v. Phoenix Ins. Co., 62 Mo. 295; Garrison v. Baggage Transp. Co., 94 Mo. 137; Columbia v. Malo, 217 S.W. 628; Springfield v. Plummer, 89 Mo. App. 532; Black on Judgments, sec. 574; 1 Freeman on Judgments (5 Ed.), p. 984; 31 C.J., pp. 463-4; 34 C.J. 1032; Bank of Commerce v. Maryland Casualty Co., 307 Mo. 435; St. Joseph v. Union, 116 Mo. 643. Even if the judgment in the Rose case is conclusive and, thus, constitutes competent evidence, Missouri District is not entitled to indemnity and Bell is not liable over to Missouri District, since the judgment roll shows on its face that Missouri District was guilty of active, primary negligence causing Rose's injury, while Bell was guilty of only passive and secondary negligence. 31 C.J. 454, sec. 54; 31 C.J. 456; Busch Latta Painting Co. v. Woerman Const. Co., 310 Mo. 437; Weatherford Water, etc., Co. v. Veit, 196 S.W. 986; Alaska S.S. Co. v. Pac. Coast Gypsum Co., 128 P. 654; Carson v. Knight, 284 S.W. 619; Eckles v. Des Moines Casket Co., 130 N.W. 113; Union Stock Yards Co. v. Railroad Co., 196 U.S. 217; Central of Georgia Ry. Co. v. Macon Ry. Light Co., 9 Ga. App. 628, 71 S.E. 1076; Galveston H. S.A. Railroad Co. v. Nass, 94 Tex. 255; Village v. Citizens Tel. Co., 173 N.W. 383. Under the provisions of the lease between Missouri District and Bell, Missouri District is not only not entitled to exoneration but it is actually liable over to Bell for any damage sustained by it as a result of the Rose judgment. St. Louis Suburban Ry. Co. v. Stewart, 187 S.W. 836; Heman Const. Co. v. St. Louis, 256 Mo. 332; Kinloch Tel. Co. v. St. Louis, 268 Mo. 485. (3) Missouri District is not entitled to recover contribution because: (a) Throughout the entire course of proceeding in the trial court, its theory was that of a right to indemnity. A party may not try his case on one theory in the trial court and then, being unsuccessful, attempt to try it on a new and different theory in the appellate court. 3 C.J. 718, sec. 618; In re McMenamy's Guardianship, 270 S.W. 665; Allen West Comm. Co. v. Richter, 228 S.W. 831; Hodge v. St. Louis Union Trust Co., 261 S.W. 70; Finley-Kehl Inv. Co. v. O'Connor, 256 S.W. 803; Engle v. Worth County, 213 S.W. 70.
David H. Robertson for Union Electric Light Power Company; John P. McCammon, Jr., Theodore Rassieur and George M. Rassieur of counsel.
In an action by Lester B. Rose against the Missouri District Telegraph Company, Southwestern Bell Telephone Company and Union Electric Light Power Company, he recovered a $50,000 judgment against said defendants for personal injuries. On appeal, the judgment was affirmed for $40,000. [Rose v. Missouri District Telegraph Co., 328 Mo. 1009, 43 S.W.2d 562.] We will refer to said companies as the telegraph, telephone and light companies. The telegraph company was compelled to pay the $40,000, with interest and costs. It sued the telephone and light companies for indemnity. Judgment for defendants, and plaintiff appealed. The facts follow:
The telephone company leased to the telegraph company space for wires on a pole owned by the telephone company. It was alleged in the Rose case that a cross-arm occupied space on the pole under a lease from the telephone company, and that the light company owned the cross-arm. The light company denied ownership of the cross-arm. The jury determined the question against the light company. It was further alleged therein that a mutual arrangement existed between the companies whereby their employees were authorized to climb the pole in the performance of duties to their respective companies.
Rose was an employee of the telegraph company. As such he climbed the pole. Attached to the pole was the cross-arm in question. When Rose placed his weight on the cross-arm it became detached from the pole, thereby causing him to fall and sustain injuries.
In substance it was charged in said case that the telegraph company negligently failed to furnish Rose a reasonably safe place to work, in that it failed to exercise ordinary care to inspect said cross-arm, and that as a direct result of said negligence he was injured. It also was charged that the telephone and light companies were negligent in that they knew, or by the exercise of ordinary care could have known of the defective condition of the cross-arm; that they negligently permitted it to remain on the pole in said condition for a long time prior to Rose's injuries, and that as a direct result of said negligence he was injured.
The answer of the telephone company was a general denial. The answer of the light company was a general denial, with a plea of contributory negligence. The answer of the telegraph company was a general denial with pleas of contributory negligence and assumption of risk. The reply was a general denial.
Rose only requested an instruction on the measure of damages, which was given by the court. There was no instruction directing the jury on plaintiff's theory of the case. The court also instructed the jury on the issue of contributory negligence.
In the instant case the petition, in substance, alleged the facts above set forth; pleaded in haec verba the pleadings in the Rose case; set forth the duties of the companies as charged in said case; alleged an adjudication of the negligence of the telegraph, telephone and light companies, as charged herein and as charged in the Rose case; alleged the expenses incurred in the trial of the Rose case and refusal of the telephone and light companies to reimburse the telegraph company, and prayed judgment for indemnity.
The answer of the telephone company was a general denial, with pleas that the telegraph company agreed to indemnify the telephone company against judgments in favor of persons using the pole as a plant facility of the telegraph company; that the light company maintained the cross-arm in question on the pole under agreement with the telephone company; that under said agreements the relation of the telegraph company to the telephone company was separate and distinct from the relation of the light company to the telegraph company; that there was a defect of parties defendant, and that the liability, if any, of the defendants herein is several and not joint. Wherefore, the telephone company prayed to be dismissed with costs.
It further answered by way of counterclaim for expenses incurred in its defense of the Rose case, for which it asked judgment with costs.
The answer of the light company was a general denial, with specific denials of any connection with the cross-arm, and a plea of defect of parties defendant herein as above set forth. Wherefore, it prayed to be dismissed with costs. The replies of plaintiff telegraph company were general denials.
To sustain the issues on the part of the telegraph company, there was admitted in evidence a stipulation signed by the parties. In substance, facts are therein agreed to be as above set forth. The entire record of the Rose case, including the bill of exceptions, was then admitted in evidence. This was all the evidence on behalf of the telegraph company. Certain exhibits were admitted in evidence on behalf of the light company. This was all the evidence in the case. The telephone company dismissed its counterclaim Thereupon the court declared that under the pleadings and the evidence, the plaintiff telegraph company was not entitled to recover.
The record does not disclose the contention of the telegraph company in the trial court. In this court it contends that the trial court should have determined from the record in the Rose case the question of primary and secondary liability as between the defendants in the Rose case. In other words, it contends that the defendants in the Rose case, as between themselves, are concluded by the record and judgment in said case. We do not think so The defendants in said case were not adversaries. The rule is stated by a standard text as follows:
"Although a judgment is conclusive upon all the parties to the action, so that no one can allege anything contrary to it merely because his coplaintiff or codefendant is not joined with him in the second suit, and a judgment against two or more defendants is conclusive on them as against plaintiff, and likewise a judgment in favor of two or more defendants is conclusive on plaintiff as against them, yet, as the estoppel is raised only between those who were adverse parties in the former suits, the judgment therein settles nothing as to the relative rights of liabilities of the coplaintiffs or codefendants inter sese, unless their hostile or conflicting claims were actually brought in issue, litigated, and determined, as by being put in issue by cross-petition or separate and adverse answers, or, where this is permissible, by the pleadings between plaintiffs and defendants, or unless, under statute, the coparties occupy adversary positions." [34 C.J., pp. 1040, 1042.]
The text is supported by decisions as follows: Scheer v. Trust Co., 330 Mo. 149, l.c. 169, 49 S.W.2d 135; M., K. T. Ry. Co. v. Am. Surety Co., 291 Mo. 92, l.c. 109, 236 S.W. 657; Peters v. St. Louis, 226 Mo. 62, l.c. 75, 125 S.W. 1134; Charles v. White, 214 Mo. 187, l.c. 211, 112 S.W. 545; State Bank of St. Louis v. Bartle, 114 Mo. 276, l.c. 281, 21 S.W. 816; McMahon v. Geiger, 73 Mo. 145; City of Springfield v. Plummer, 89 Mo. App. 515. In this connection it may be stated that the mere effort of a defendant to escape liability by attempting to "throw the burden on a codefendant" does not make the defendants adversaries.
Furthermore, "in an action upon a different claim or demand only those facts or matters are conclusively established by the former adjudication which are essential to, or shown to be involved in, the judgment or decree rendered." [34 C.J. 745, 746.] The determination of the primary and secondary liability of the defendants in the Rose case was not essential to or involved in the judgment in said case.
Furthermore, the provision in Section 1071, Revised Statutes 1929, that the judgment may determine the ultimate rights of the parties on each side as between themselves does not make codefendants adversaries. The rule is stated as follows:
"The judgment in favor of one defendant against another as authorized in the statute is such as is responsive to the issues which the statutes above quoted authorize to be made in the pleadings. The statutes relating to pleadings do not authorize one defendant to inject into the plaintiff's suit an independent suit either at law or in equity against his codefendant not necessary or germane to his defense to the plaintiff's suit, and the relief that may be granted to one defendant against another is only such as is incidental to his defense." [Joyce v. Growney, 154 Mo. 253, l.c. 264, 265, 55 S.W. 466; Fulton v. Fisher, 239 Mo. 116, l.c. 130, 143 S.W. 438; Early v. Smallwood, 302 Mo. 92, l.c. 109, 256 S.W. 1053; Scheer v. Trust Co., 330 Mo. 149, l.c. 169, 49 S.W.2d 135; Babcock v. Rieger, 332 Mo. 528, l.c. 542, 58 S.W.2d 722.]
The telegraph company cites Kinlock Telephone Co. v. St. Louis, 268 Mo. 485, 188 S.W. 182, and Gerber v. Kansas City, 311 Mo. 49, 277 S.W. 562.
The Kinloch case was under Section 3268, Revised Statutes 1929, for contribution. We ruled that "ordinarily, and in the absence of anything further, a judgment sounding in tort would, under the statute (Sec. 3268), be a prima facie showing for contribution as between defendants." The St. Louis Court of Appeals so ruled in Eaton Prince Co. v. Trust Co., 123 Mo. App. 117, l.c. 138, 100 S.W. 551. The instant case is an action at common law for indemnity. It follows that the Kinloch case is not authority for the contention that the trial court should have determined from the record in the Rose case the question of primary and secondary liability.
In the course of the opinion in the Gerber case we construed Section 7539, Revised Statutes 1929. In substance, the section provides that when a city of over one hundred fifty thousand inhabitants is sued for the primary negligence of another, it may move to require plaintiff to make such other a party defendant in said suit. We held in said case that the section dispenses with notice of opportunity to defend; that it allows proof on the question of primary and secondary negligence as between defendants, and that it makes the city and the other defendant adversary parties. In other words, the section creates an exception to the general rule. It has been so ruled in cases as follows: Costello v. Kansas City, 209 Mo. App. 155, l.c. 159, 160, 232 S.W. 165; Hutchinson v. Mullins, 189 Mo. App. 438, 176 S.W. 1083; Kansas City v. Mullins, 200 Mo. App. 639, l.c. 641, 642, 644, 209 S.W. 558; Klaber v. Kansas City, 223 Mo. App. 684, l.c. 693-5; O'Rourke v. Lindell Ry. Co., 142 Mo. 342, l.c. 352-4, 44 S.W. 254; Wiggin v. St. Louis, 135 Mo. 558, l.c. 567, 37 S.W. 528; Badgley v. St. Louis, 149 Mo. 122, l.c. 132-3, 50 S.W. 817; Kilroy v. St. Louis, 242 Mo. 79, l.c. 84, 145 S.W. 769; Beave v. Transit Co., 212 Mo. 331, l.c. 355, 111 S.W. 52; Clark v. Railroad Co., 234 Mo. 396, l.c. 424, 137 S.W. 583; Leighton v. Davis, 260 S.W. 986, l.c. 989; Neal v. Curtis Mfg. Co., 328 Mo. 389, l.c. 411, 412, 41 S.W.2d 543. The Gerber case is against the contention of the telegraph company.
The telegraph company next contends that the telephone and light companies are concluded by the judgment in the Rose case for the reason they were codefendants in said case. The rule is stated as follows: "Where one is bound to protect another from a liability, he is bound by the result of a litigation to which such other is a party, provided he had notice of the litigation and opportunity to control and manage it. This is the doctrine deduced from the whole current of authorities on the subject." [Strong v. Phoenix Ins. Co., 62 Mo. 289, l.c. 295.] To the same effect, Stewart v. Thomas, 45 Mo. 42; Garrison v. Baggage Trans. Co., 94 Mo. 130, l.c. 137, 6 S.W. 701; Whitaker v. McCormick, 6 Mo. App. l.c. 116, 117; City of Columbia v. Malo, 217 S.W. 625, l.c. 628; City of Springfield v. Plummer, 89 Mo. App. 515, l.c. 532; Bank of Commerce v. Maryland Casualty Co., 307 Mo. 417, l.c. 435, 270 S.W. 691; City of St. Joseph v. Union Ry. Co., 116 Mo. 636, l.c. 643, 22 S.W. 794.
And in Wheelock v. Overshiner, 110 Mo. 100, l.c. 107, 19 S.W. 640, we said: "In order to conclude a warranty by a judgment of eviction `the notice must be distinct and unequivocal, and expressly require the party bound by the covenant to appear and defend the adverse suit.' [Rawle on Covenants for Title (5 Ed.), sec. 125.]" It is not contended that the telephone and light companies were given an opportunity to control and manage the defense of the telegraph company in the Rose case. On the contrary the defendants in said case made independent defenses.
The telegraph company cites Robbins v. Chicago City, 4 Wall. 657; Fulton County G. E. Co. v. Hudson River T. Co., 200 N.Y. 287; Washington Gas Co. v. Dist. of Columbia, 161 U.S. 316; First Natl. Bank of Mt. Vernon, Ohio, v. First Natl. Bank, Lincoln, Ill., 67 N.E. 91, and Norfolk W. Ry. Co. v. Mundy, 66 S.E. 61. Those cases seem to hold that if a party liable over merely assists in preparing a defense, he is concluded by the judgment. The ruling is contrary to the weight of authority. [1 Freeman on Judgments (5 Ed.), p. 984; Black on Judgments, sec. 574; 31 C.J., pp. 463-4; 34 C.J., p. 1032.] However, there is no evidence tending to show that the telephone and light companies assisted the telegraph company in its defense of the Rose case.
The telegraph company next contends that if not entitled to indemnity, it is entitled to contribution. The question is not presented by the record. The action was for indemnity, and the telephone and light companies have had no opportunity to defend against contribution.
The judgment should be affirmed. It is so ordered. All concur.