Jones v. Chambers, 12

• Decision Date: 10 September 1958
• Docket Number: A,No. 12,12
• Citation: 353 Mich. 674,91 N.W.2d 889
• Parties: Leslie JONES, Jr., Philip Wolf, Lewis C. Johnson and Glen Johnson, d/b/a Johnson Oil Company, and American Fidelity Fire Insurance Company, subrogee of Leslie Jones, Jr., Philip Wolf and Johnson Oil Company, Plaintiffs and Appellants, v. Eldon Lee CHAMBERS, Defendant and Appellee. pril Term.
• Court: Michigan Supreme Court

Page 889

91 N.W.2d 889

353 Mich. 674

Leslie JONES, Jr., Philip Wolf, Lewis C. Johnson and Glen

Johnson, d/b/a Johnson Oil Company, and American Fidelity

Fire Insurance Company, subrogee of Leslie Jones, Jr., Philip Wolf and Johnson Oil Company, Plaintiffs and Appellants, v. Eldon Lee CHAMBERS, Defendant and Appellee.

No. 12, April Term.

Supreme Court of Michigan.

Sept. 10, 1958.

James S. Miner, Owosso, for plaintiffs and appellants.

Van Winkle & Van Winkle, Howell, Arthur Heikkinen, Howell, of counsel, for defendant and appellee.

Before the Entire Bench.

EDWARDS, Justice.

From pleadings in this record we learn this controversy started at 5:30 a. m. on December 20, 1951, when an oil truck and trailers owned by the plaintiffs (other than the insurance company) and a car owned and driven by defendant came into collision.

The facts relevant to our instant appeal are agreed upon by the parties as follows:

'December 9, 1953, Jones and Wolf, Johnson Oil Company and American Fidelity Fire Insurance Company, subrogee by a prior assignment, started suit in Shiawassee county against Chambers for $6,925.41 damage to a tractor and trailer owned by Jones, Wolf and Johnson Oil Company plus $1,750 lost net earnings to Jones and Wolf, alleging the same to have been caused by Chambers' breach of statutory duty to pass to the right and other specified negligence, alleging a want of their own negligence contributing to their own damages.

'December 24, 1953 Chambers and The Citizens' Mutual Automobile Insurance Company, his previously subrogated assignee, started suit in Isabella county against Jones, Wolf, Johnson Oil Company and Leon F. Hapner, as driver, for 'damage to person and property to the extent of $10,000,' alleging a cause of action through Hapner's breach of statutory duty to have his vehicle under control and other specified negligence, and asserting a want of Chambers' negligence contributing to Chamber's own damages.

'June 14, 1954 the Isabella cause of action was tried and judgment was subsequently entered for plaintiff therein on the jury's verdict.

'On December 28, 1955 the Shiawassee county trial court dismissed the Shiawassee cause of action on the grounds that it had been heard and decided as to all parties therein during the Isabella county trial, for reasons stated in the court's opinion.'

Thus we are asked to determine whether or not the defendants (plus their insurance company) in the later-filed but first-tried Isabella county suit can now maintain an action for damages arising out of the same accident in Shiawassee county circuit court even though judgment was rendered against them and has become final in the prior trial in which they did not cross-declare.

The right to file a cross-declaration in a tort action did not exist at common law; it was created by statute. Annotation, 10 A.L.R.2d 1167. The Michigan statute which we are here called upon to construe plainly makes the right to cross-declare optional with the cross-declarant:

'In any action hereafter brought in any court of the state to recover damages for any injury to person or property, wherein recovery is sought because of the alleged negligence of the defendant, or of his agent, servant, representative, or employe, or for the alleged breach of a statutory duty owing thereby, such defendant may at the time of filing and serving his plea, also file and serve a cross-declaration against the plaintiff setting forth the facts in any cause of action for damages or injury to his person or property because of the alleged negligence of the plaintiff or his agent, servant, representative or employe he may have against said plaintiff arising out of the occurrence, forming the basis of plaintiff's case. Thereupon such plaintiff shall proceed as though an independent action had been started against him by defendant and shall plead to such cross-declaration or take such other step with reference thereto as may be authorized by statute or by rule of court: Provided, That with the permission of the court such cross-declaration may be filed and served subsequently to the filing and service of defendant's plea.' C.L.1948, § 615.11 (Stat.Ann. s27.836).

The statute has been thus interpreted in Republic Automobile Ins. Co. v. Maedel, 253 Mich. 663, 235 N.W. 819.

See, also, Seager v. Foster, 185 Iowa 32, 169 N.W. 681, 8 A.L.R. 690. 'The general rule is that a defendant, having a claim available by way of setoff, counterclaim, or cross petition, has an election so to plead it, or to reserve it for a future independent action, and a prior action in which a claim might have been asserted as a set-off, counterclaim, or cross petition is no bar to a cubsequent independent action thereon.' Annotation, 8 A.L.R. 695.

Republic Automobile Ins. Co., supra, is, however, not directly in point in the current situation since the suit there relied upon to bar a negligence action was still pending. In the opinion, however, Justice Clark said [253 Mich. 663, 235 N.W. 820]:

'The defense of former suit pending is availing when--'if the first suit had been decided it could be pleaded in bar as a former adjudication.' 7 RCL p. 1069. A verdict of no cause of action, and judgment thereon, in the former suit would not be a bar to the second suit.'

Indeed, even a verdict and judgment against the defendant who later brings action pertaining to the same event may not always be a bar. In Mimnaugh v. Partlin, 67 Mich. 391, 34 N.W. 717, where a farm laborer sought and received judgment for his pay for cutting and stacking wheat, the farmer subsequently was allowed his action for damages due to improper care of the wheat during cutting and stacking. He had failed to file recoupment in the first suit, and the Court held he did not have to. The Court held the prior judgment not res adjudicata, since the second suit was based on a claim of negligence which was not decided in the prior case.

Thus neither the statute, nor the fact of fuit pending, nor even the fact of a prior final judgment in a case arising out of the same occurrence answers our question fully.

Let us examine whether the cause of action in Shiawassee county is actually res adjudicata because of the Isabella judgment.

The parties to the 2 suits are not the same. Generally, they are reversed, with the defendants in the former suit now suing and the former plaintiffs being sued. Both a plaintiff and a defendant in the former suit are unnamed in the second suit, and a new party, the American Fidelity Fire Insurance Company, has appeared as a plaintiff. Thus it is clear that the Shiawassee county suit represented a different cause of action from that tried and decided in Isabella county. A comparison of the 2 declarations and the sets of answers thereto indicates clearly that the claim of damages made by our instant plaintiffs was not pleaded or litigated in the Isabella county trial.

Our ultimate decision, however, must be made in relation to appellee's contention that the basic issues of fact upon which appellants' Shiawassee county case rests were pleaded, litigated and finally decided in the Isabella county case.

A careful comparison of the 2 sets of declarations and answers shows this to be the case. The essential allegations of negligence on the part of the truck driver, a...