A.B.C. Truck Lines v. Kenemer, 6 Div. 391.

CourtSupreme Court of Alabama
Citation25 So.2d 511,247 Ala. 543
Docket Number6 Div. 391.
PartiesA. B. C. TRUCK LINES, Inc., v. KENEMER et al.
Decision Date28 March 1946

25 So.2d 511

247 Ala. 543


KENEMER et al.

6 Div. 391.

Supreme Court of Alabama

March 28, 1946

Appeal from Circuit Court, Pickens County; Verdo Elmore, Judge. [25 So.2d 512] [Copyrighted Material Omitted] [25 So.2d 513]

[247 Ala. 545] F. W. Davies and Spain, Davies, Gillon, Grooms & Young, all of Birmingham, for appellant.

Isaac Adams, of Dalton, Ga., and G. R. Harsh, of Birmingham, for appellees.

SIMPSON, Justice.

The plaintiff, A. B. C. Truck Lines, Inc., brought suit against defendant, Kenemer, in the circuit court of Jefferson County, Alabama, for damages to one of plaintiff's trucks suffered in a collision with a truck of defendant, the action being predicated on the negligence of Kenemer's truck driver.

The defendant interposed pleas of res judicata. The trial court overruled the demurrers to the pleas and plaintiff then filed replications, to which demurrers were sustained and because of these adverse rulings the plaintiff nonsuited the cause and appealed.

[247 Ala. 546] The first plea alleged that the matters and things charged in the complaint had been previously adjudicated against plaintiff in a court of competent jurisdiction in the State of Georgia and by averment and exhibits made a part of the plea it appears that a similar suit for damages to Kenemer's truck on account of the same accident was instituted by Kenemer (defendant in Alabama) in the Georgia court against the A. B. C. Truck Lines, Inc. (the Alabama plaintiff), counting upon the negligence of the truck driver of the truck line company in the self-same collision. By the plea it was shown that the truck line company appeared in the Georgia case, was represented by counsel, and by and through such counsel, duly authorized, joined issue on the complaint of Kenemer, that a jury was impaneled, a verdict returned in favor of said Kenemer against the defendant A. B. C. Truck Lines, Inc., in the amount of $250 and costs, on which verdict a judgment was duly rendered by the judge of that court and that 'said judgment has not been appealed from and has been paid.'

Plea 2 is substantially the same as Plea 1, with the added allegation that in the collision the injuries and damages complained of in the Alabama complaint were proximately due to and caused by the negligence of the operator of the truck of the A. B. C. Truck Lines, Inc., and that the issue of contributory negligence of said truck driver on the occasion complained of and the issue of proximate contribution of such negligence to the said injuries and damages have been thereby previously fully adjudicated against the plaintiff (appellant).

Though there have been many scintillating refinements of the doctrine of res judicata, from which has been deduced some conflict of authority, the points of decision touching the instant case appear to have been very well settled.

The appellant first argues that the pleas are insufficient because, assertedly, they do not show an adjudication of the cause on the merits. In this we cannot agree and the trial court must be sustained in the contrary ruling.

The pleas, while not stating in haec verba that there was an adjudication on the merits, are clear and substantial to this effect. It is shown that in the Georgia court, having power to determine the issue, the defendant (truck line company) appeared, issue was joined and after a jury and verdict returned, a judgment was duly rendered. This, we think, was all sufficient to indicate an adjudication on the merits rendering the pleas immune to the stated objection.

Speaking to this question, Corpus Juris has an apposite statement: 'If the judgment is general, and not based on any technical defect or objection, and the parties had a full legal opportunity to be heard on their respective claims and contentions, it is upon the merits, although there was no actual hearing or argument on the facts of the cause.' 34 C.J. 776.

On the same principle this court has indicated that a decision is generally regarded as on the merits if it was not controlled by some technical status not affecting the merits of the controversy as by reason of improper parties, defects in pleadings, matters in abatement, nonsuits and the like. Terrell v. Nelson, 199 Ala. 436, 74 So. 929.

The question is also raised in argument here, though there was no demurrer [25 So.2d 514] specifically challenging the pleas on this ground, that the two suits were upon different claims and that the pleas of res judicata are ineffective under the rule discussed in Central of Georgia R. Co. v. Dothan National Bank, 206 Ala. 602, 91 So. 351, and other cases of similar import. We think this argument likewise untenable and, in view of the dissenting opinion hereinafter appearing, will note our reasons.

The Georgia suit was for damages by reason of the negligent operation of appellant's truck, proximately resulting in the injuries complained of and the judgment was accordingly rendered on this issue and necessarily involved a determination of the question of the culpability vel non of both the plaintiff and defendant for negligence. To allow the instant claim as a basis for a right of action against the plaintiff in the former judgment when it was available as a defense to that action, the facts upon which the right of recovery is sought to be based being inconsistent with and in direct opposition to the facts on which the judgment plaintiff first recovered, would be contrary to the simplest and most fundamental principles of res judicata.

There is, of course, a difference between the effect of a judgment as an estoppel against the prosecution of a second action between the same parties on the same [247 Ala. 547] claim or cause of action and on a different claim or demand. In the former, a judgment on the merits is an absolute bar to a subsequent prosecution of such claim or demand, while in the latter the prior judgment operates as an estoppel only to those matters in issue or questions controverted and determined. Tait v. Western Maryland R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195.

But, in the latter mentioned case, if 'some matter litigated in the former suit (was) determinative of a matter [litigated] in the second suit,' the estoppel arises. United Shoe Mach. Corp. v. United States, 258 U.S. 451, 459, 42 S.Ct. 363, 366, 66 L.Ed. 708.

The principle is well understood; the conflicts have arisen in its correct application.

There is a good exposition of the doctrine in 2nd Black on Judgments, where it is first noted that 'it is a general rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action; and this is true, not only with respect to further or supplementary proceedings in the same cause, but for the purposes of every subsequent suit between the same parties, whether founded upon the same or a different cause of action. 'A party cannot relitigate matters which he might have interposed, but failed to do, in a prior action between the same parties or their privies in reference to the same subject-matter. * * *'' 2nd Black on Judgments, § 754.

In further expounding the principle, the same treatise takes note of the apparent conflict of the foregoing rule with the equally important rule that a counterclaim or independent cause of action arising out of the same transaction not inconsistent with the plaintiff's claim need not be presented as a defense, but may be reserved as a basis for a future action.

The pertinent rule is then correctly stated: '* * * The doubt arises in cases where it is uncertain whether the same transaction gives to each party an independent cause of action, or in cases where the defendant's contention is both a defense to the plaintiff's claim and a ground for the recovery of damages. But it is believed that all such ambiguous cases may be solved by the application of the following rule: Where judgment goes against the defendant, and he afterwards sues the plaintiff on a cross-claim which he might have presented in the first suit but did not, if the facts which he must establish to authorize his recovery are inconsistent with the facts on which the plaintiff recovered in the first action, or in direct opposition to them, the former judgment is a bar. In other words, if the way to his own recovery lies through a negation of the facts alleged by the plaintiff, that negation must be made good when the facts are first set up. For afterwards he cannot deny what the judgment affirms to be true. * * *'

This general principle is manifestly applicable to the case at hand, for it would be paradoxical indeed to authorize a second recovery in the self-same collision by a defendant in a former judgment against his judgment plaintiff by the establishment of a different state of facts inconsistent with and diametrically opposed to the facts on which the first recovery was based.

Corpus Juris, in analyzing the principle, announces a similar result, to-wit: [25 So.2d 515] 'Where separate causes of action accrue to the parties out of the same transaction or state of facts, cross actions may be maintained, and neither will bar the other, unless the facts necessary to authorize a recovery in one action are contrary to, or inconsistent with, those required to sustain a judgment in the other.' 34 C.J. 867, § 1279.

Also, to like effect is the following: 'As a general rule, where a defendant has an independent claim against plaintiff, such as might be either the basis of a separate action or might be pleaded as a set-off or counterclaim, he is not obliged to plead it in plaintiff's action, although he is at liberty to do so, and if he omits to set it up in that action, or if, although he introduces it in evidence in rebuttal of plaintiff's demand, it is not used as a set-off or counterclaim, this...

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