Davis v. McKinnon & Mooney

Decision Date28 May 1959
Docket NumberNo. 13632.,13632.
PartiesJohn J. DAVIS, Appellant, v. McKINNON & MOONEY, a corporation, L. A. McKinnon, Mary Alice Lacey, Arthur N. Gosline, Jr., and Valeria Guest, Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

T. R. Zettelmeyer, Willoughby, Ohio, William E. Speer, Detroit, Mich., on brief, for appellant.

James M. Pearson, Flint, Mich., for appellees.

Before MARTIN, Chief Judge, ALLEN, Circuit Judge, and MATHES, District Judge.

FLORENCE E. ALLEN, Circuit Judge.

The United States District Court dismissed appellant's complaint in this action on the ground that the cause set forth therein had been adjudicated by the courts of the State of Ohio.

On October 23, 1954, in Lake County, Ohio, appellant was injured in an automobile accident. He filed an action against one Thomas Fitzgerald in the Common Pleas Court of Lake County and secured a judgment for $10,000 against Fitzgerald. Asserting that Fitzgerald was insured against casualty liability by Fireman's Fund Indemnity Company, hereinafter called Indemnity Company, appellant, in accordance with Section 3929.06 Ohio Revised Code, filed a supplemental petition against the Indemnity Company seeking payment of the judgment. In that action the defense of the Indemnity Company was that, because of nonpayment of premiums, the policy issued to Fitzgerald had been canceled prior to the date of the accident. Appellant contended that the cancellation of the policy was fraudulent. The jury returned a special verdict answering numerous interrogatories submitted by the Indemnity Company, finding in substance that Fitzgerald had not paid the Indemnity Company monthly premiums in accordance with the contract, that the policy had been canceled October 17, 1954, in accordance with its terms, and that due notice had been mailed to and delivered at Fitzgerald's last known address. The state court entered judgment for the Indemnity Company and against appellant and Fitzgerald, holding in substance that the policy issued by the Indemnity Company to Fitzgerald was properly canceled, effective October 17, 1954, in accordance with the condition contained in the policy and that by reason of such cancellation the policy was not in force or effect on October 23, 1954, the date of the automobile accident.

In the action appealed from herein filed in the District Court appellant contends in substance that appellee McKinnon & Mooney fraudulently conspired to manufacture evidence depriving appellant of a recovery under the supplemental petition in the state court.

Appellees pleaded res judicata in their affirmative defense and also filed a motion to dismiss the action on the ground of res judicata and estoppel by judgment. This motion was sustained by the District Court, which in its opinion stated that the "Issue of fraudulent evidence of policy cancellation was thoroughly argued in Ohio Circuit Court proceedings. That Court determined that there has been no prejudicial error in Common Pleas Court." It was also shown that the Supreme Court of Ohio denied a motion for certiorari.

The record in the Lake County, Ohio, court, together with appellant's briefs in the appellate courts of Ohio, was filed in the office of the Clerk of the District Court prior to the hearing therein. Although new allegations as to fraud were made in appellant's petition in the federal court, appellant's briefs in the state courts raised the specific question of fraudulent cancellation of the policy reiterated here. Appellant contends that the issue of fraud set forth herein was not presented in the Ohio courts, pointing out that his supplemental petition sounded in contract while the instant action sounds in tort, and also that the parties are not identical.

This contention has no merit. The attack upon the cancellation of the policy made in the state court was based upon alleged fraud. The jury had appellant's evidence on that issue before it when it found in the special verdict that the policy had been canceled in accordance with the contract. The doctrine of res judicata is applied to issues of fraud. Heiser v. Woodruff, 327 U.S. 726, 736, 66 S.Ct. 853, 90 L.Ed. 970.

It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action. In such cases, it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief. 30A Am.Jur. 411, Section 371.

It is immaterial that in the interim between the Lake County trial, which terminated in October, 1955, and the hearing in the instant case, appellant restated his theory of the alleged fraud practiced in cancellation of the policy, setting forth further details and including different parties, namely, McKinnon & Mooney, conceded to be agent of the Indemnity Company, and McKinnon & Mooney's employees....

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  • In re Falk
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — District of Minnesota
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    ...grounds, or tried on different theories, or instituted for different purposes, and seek different relief." Davis v. McKinnon & Mooney, 266 F.2d 870, 872 (6th Cir.1959). See also 46 Am.Jur.2d Judgments § 415 (1969) and cases cited therein. Examination of Minnesota statute § 518.58 and Bankru......
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    ...44 (1957). See also Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 25-26, 218 A.2d 350 (1966); Davis v. McKinnon & Mooney, Inc., 266 F.2d 870 (6 Cir. 1959); Spector v. El Ranco, Inc., 263 F.2d 143 (9 Cir. 1959). Cf. Hurley v. Southern California Edison Co., 183 F.2d 125, 135-13......
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    ...in Haddad v. Border Express, Inc. (1962), 300 F.2d 885, a personal injury and wrongful death case; the Sixth Circuit in Davis v. McKinnon et al. (1959), 266 F.2d 870, a personal injury case which quoted extensively from Bernhard v. Bank of America, supra; and by the Third Circuit in Gibson ......
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