Andrews v. Gross & Janes Tie Co.
| Decision Date | 29 November 1948 |
| Docket Number | 4-8645 |
| Parties | Andrews v. Gross & Janes Tie Company |
| Court | Arkansas Supreme Court |
Rehearing Denied January 31, 1949.
Appeal from Pike Circuit Court; Wesley Howard, Judge.
Affirmed.
P L. Smith, for appellant.
J Ed Morneau, for appellee.
In April, 1944, appellant filed a claim for compensation before the Workmen's Compensation Commission against Gross & Janes Tie Company for an injury allegedly sustained while working for said company on October 26, 1943. After several hearings extending over a two-year period, the commission entered a final order denying appellant's claim against Gross & Janes on the ground that he was not an employee of the company. The commission further found that appellant was an employee of D. F. Tutt at the time of the injury and an award was made against Tutt from which no appeal was taken by him. Appellant appealed to the circuit court from that part of the commission's order denying compensation against Gross & Janes and the circuit court affirmed. On appeal to this court, we affirmed the circuit court judgment in Andrews v. Gross & Janes Tie Co., 211 Ark. 999, 204 S.W.2d 783.
On November 22, 1947, appellant filed this action in the circuit court against D. F. Tutt, Gross & Janes Tie Company and Consolidated Underwriters alleging that the award previously made against D. F. Tutt had not been paid; that appellant was entitled to judgment against the three defendants jointly and severally for accumulated payments due under said award and to the issuance of a mandatory injunction requiring payment thereof by said defendants.
Appellees, Gross & Janes Tie Company and Consolidated Underwriters, filed several pleadings, including a motion to dismiss, setting up the plea of res judicata. Appellees attached to the last pleading filed certified copies of the findings and award of the commission, the judgment of the circuit court and the mandate of this court on the former appeal. At a hearing on the motion to dismiss, the trial court sustained the plea of res judicata and dismissed the cause as to the appellees. This appeal follows.
The allegations of appellant's complaint pertinent here are set out in paragraphs 2, 3 and 6 as follows:
We have carefully re-examined the record of the proceedings before the commission on the former appeal and find that the matters set out in appellant's complaint were either fully determined or should have been litigated in that case. This court is committed to the rule that all issues that are determined or could be determined in a suit are res judicata in a subsequent suit between the same parties. See, McDaniel v. Richards, 141 Ark. 453, 217 S.W. 478, and cases cited in West's Arkansas Digest, Vol. 11, Judgments, § 713.
There was much testimony introduced in the other case on the questions of estoppel and the alleged agreement of Gross & Janes to insure the employees of D. F. Tutt. There was also testimony tending to show compensation payments by appellees to other employees of D. F. Tutt before and after the injury to appellant. Some of this evidence was set out in our former opinion and it will not be repeated here.
In his motion for new trial on the former appeal, appellant alleged "The Commission was without authority to hold Gross & Janes and their Carrier not liable for this claim they both being estopped from denying liability, having reported the claim and having treated D. F. Tutt as...
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