Atchison, T. & S.F. Ry. Co. v. Nelson

Decision Date01 February 1915
Docket Number2406.
Citation220 F. 53
PartiesATCHISON, T. & S.F. RY. CO. v. NELSON.
CourtU.S. Court of Appeals — Ninth Circuit

The defendant in error recovered in the court below a judgment against the plaintiff in error for damages on account of moneys expended for services of doctors and nurses, and the cost of drugs and medicine and hired help, and for the loss of services of his wife, all growing out of an injury suffered by his wife while she was a passenger on one of the cars of the defendant in error. The complaint alleged that prior to the commencement of the action the defendant in error and his wife had sued the same defendant for the injuries to her person suffered by the wife in the accident which is referred to in the case at bar. The plaintiff set out the pleadings and judgment in the former case, and pleaded the judgment roll in that action as res adjudicata and as conclusive upon and an estoppel in respect to all issues in the case at bar concerning the negligence of the defendant and the effect of the negligence of either of said parties as the proximate cause of the injury complained of and averred that upon the strength of that judgment it should be adjudged and determined that the defendant was guilty of negligence which was the proximate cause of the injury complained of, and that the plaintiff was not guilty of any want of ordinary care or negligence which contributed to the injuries to his wife. The answer alleged that the plaintiff's wife had been guilty of negligence which was the proximate cause of her injuries, and denied that the judgment roll in the former case was res adjudicata, or conclusive, or estoppel, in respect to any issues in the present case. On the trial the judgment roll was introduced in evidence over the objection of the plaintiff in error, and the defendant in error offered evidence of the amount of damages and rested. The defendant introduced no evidence. The court instructed the jury that the judgment roll was conclusive on the question of the use of due care on the part of the plaintiff's wife, and conclusive that the negligence of the defendant was the proximate cause of the injury both to the plaintiff's wife and to the plaintiff in the present case, and that the jury must find for the plaintiff in some sum.

U. T Clotfelter, A. H. Van Cott, M. W. Reed, and E. W. Camp, all of Los Angeles, Cal., for plaintiff in error.

Gray, Barker & Bowen, of Los Angeles, Cal., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

It is conceded by both parties to the action that the judgment in the former case should be given in the present case the same effect as evidence which it would have had, had it been rendered by a court of the state of California and offered in evidence in a court of that state. We turn, therefore, to the Code of California and the decisions of the Supreme Court of that state to ascertain what is the effect of such a judgment as evidence in a case such as that which is here under review. The provisions of the Code are as follows:

'Sec. 1908. The effect of a judgment or final order in an action or special proceeding before a court or judge of this state, or of the United States, having jurisdiction to pronounce the judgment or order, is as follows: * * *
'2. In other cases, the judgment or order is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding.
'Sec. 1909. Other judicial orders of a court or judge of this state, or of the United States, create a disputable presumption, according to the matter directly determined, between the same parties and their representatives or successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity.
'Sec. 1910. The parties are deemed to be the same when those between whom the evidence is offered were on opposite sides in the former case, and a judgment or other determination could in that case have been made between them alone, though other parties were joined with both or either.'

In Ferrea v. Chabot, 63 Cal. 564, 567, the court said:

'These sections of the Code are merely declaratory of the common-law rule, that the judgment of a court of competent jurisdiction, directly upon the point, is as a plea a bar, or as evidence conclusive, between the same parties, upon the same matter directly in question in another court.'

In Cook v. Rice, 91 Cal. 664, 27 P. 1081, in an action against a husband and wife to recover damages for an alleged trespass upon public land in the possession of the plaintiff, who claimed as a pre-emptioner, and to enjoin further trespasses, to which the answer of the defendant alleged that the wife claimed no interest in the land and that her acts were those of a member of the family of the husband and in privity with his title, it was held that it was proper to admit in evidence on behalf of the defendants the judgment roll in a former action of ejectment of the plaintiff against the husband, wherein it was adjudged that the plaintiff was entitled to the possession only of a small inclosure of the land not trespassed upon by the defendants, and that the plaintiff was not possessed or entitled to the possession of any part of the lands entered upon by the defendants. The court said:

'It was objected that it was not between the same parties. Substantially it was between the same parties. Mrs. Rice made no claim to the land, and all she did was under the claim of her husband. Had she, by her acts, taken possession, the right, if any, thus acquired would have been common property, and the right to control and manage in her husband.'

In Woolverton v. Baker, 98 Cal. 628, 33 P. 731, the...

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4 cases
  • Rahming v. Mackey
    • United States
    • Florida Supreme Court
    • March 17, 1939
    ... ... appellant ... Clarence ... W. Nelson, of Miami, for appellee ... OPINION ... CHAPMAN, ... On June ... 765, ... 103 Am.St.Rep. 66; Reed v. Cross, 116 Cal. 473, 484, ... 48 P. 491; Atchison T. & S. F. Ry. Co. v. Nelson, ... 220 F. 53, 135 C.C.A. 621. That is to say, 'a matter of ... ...
  • M. H. Golden Const. Co. v. El Centro Properties
    • United States
    • California Court of Appeals Court of Appeals
    • July 25, 1952
    ...Lamb v. Wahlenmaier, 144 Cal. 91, 77 P. 765, 103 Am.St.Rep. 66; Reed v. Cross, 116 Cal. 473, 484, 48 P. 491; Atchison T. & S. F. Ry. v. Nelson, 9 Cir., 220 F. 53, 135 C.C.A. 621. That is to say, 'a matter of fact once adjudicated by a court of competent jurisdiction, concurrent or exclusive......
  • Brewer v. King
    • United States
    • California Court of Appeals Court of Appeals
    • February 6, 1956
    ...v. Wahlenmaier, 144 Cal. 91, 77 P. 765, 103 Am.St.Rep. 66; Reed v. Cross, 116 Cal. 473, 484, 48 P. 491; Atchison, T. & S. F. Ry. Co. v. Nelson, 9 Cir., 220 F. 53, 135 C.C.A. 621. That is to say, 'a matter of fact once adjudicated by a court of competent jurisdiction, concurrent or exclusive......
  • Puget Sound Traction, Light & Power Co. v. Schleif
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 1, 1915

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