Badertscher v. Independent Ice Co.

• Decision Date: 05 September 1919
• Docket Number: 3336
• Citation: 184 P. 181,55 Utah 100
• Court: Utah Supreme Court
• Parties: BADERTSCHER v. INDEPENDENT ICE CO. et al

184 P. 181

55 Utah 100

BADERTSCHER v. INDEPENDENT ICE CO. et al

No. 3336

Supreme Court of Utah

September 5, 1919

On Application for Rehearing, October 9, 1919.

Appeal from District Court, Third District, Salt Lake County; J Louis Brown, Judge.

Action by Godfrey J. Badertscher against the Independent Ice Company, a corporation, and Wasatch Coal Company, a corporation. From a judgment against the last-named defendant, the case having been dismissed as to the first the latter defendant appeals.

AFFIRMED.

G. A Iverson and P. G. Ellis, both of Salt Lake City, for appellants.

Geo. G. Armstrong, W. E. Rydalch and Ed. McGurrin, all of Salt Lake City, for respondent.

FRICK, J. CORFMAN, C. J., and WEBER and THURMAN, JJ., concur. GIDEON, J. dissenting.

OPINION

FRICK, J.

Plaintiff commenced this action in the district court of Salt Lake county against the Independent Ice Company, a corporation, hereinafter called ice company, and against the Wasatch Coal Company, also a corporation, hereinafter styled coal company, to recover damages for personal injuries which he claimed to have suffered through the alleged joint negligence of the two companies.

Upon the trial of the case, after the plaintiff had introduced his evidence, the two companies filed separate motions for non-suits upon the ground that the evidence, for the reasons stated in the motions, was insufficient to take the case to the jury. The district court granted the motion of the ice company and denied that of the coal company. The case was accordingly dismissed as against the ice company, and the trial proceeded as against the coal company alone. The jury, under the instructions of the court, which are not complained of here, found a verdict in favor of the plaintiff against the coal company. Judgment was duly entered on the verdict, from which the coal company appeals, and assigns a number of errors, which we shall hereinafter consider.

In taking the appeal from the judgment against it the coal company did not serve the ice company with notice of the appeal. The plaintiff has filed a motion to dismiss the coal company's appeal upon the ground that the ice company is an adverse party, and hence a necessary party to the appeal, and, not having been served with notice of the appeal, he contends this court cannot hear the appeal for want of jurisdiction. In view that the plaintiff sued the two companies as joint wrongdoers, their precise relationship for the purposes of this motion is quite immaterial. The question, and the only question, to be determined upon the motion, is, Is the ice company an adverse, and hence a necessary, party to this appeal? In other words, would its interests, from a legal point of view, be affected in case the judgment against the coal company were modified or reversed? The fact that the district court, upon the evidence produced against the ice company, as a matter of law found that it was not connected with the alleged wrong or tort, and upon that ground entered a judgment dismissing the action against it, which judgment is in full force and effect, should conclusively dispose of this motion against the plaintiff's contentions. If, as a matter of law, the plaintiff has no cause of action against the ice company, in what way can that company be interested in this appeal, which is from a judgment against the coal company alone, and which appeal is from that judgment only and from no other? I confess my utter inability to understand how the ice company is any longer connected with this case. Why is not the judgment of dismissal upon the grounds stated, while not appealed from, for the purposes of this appeal just as conclusive as a judgment upon the merits in defendant's favor, if not appealed from, would be? It would seem that upon a proposition so elementary no authority should be required. The following cases are, however, squarely in point: Bliss v. Grayson, 24 Nev. 422, 56 P. 231; O'Keefe v. Omlie, 17 N.D. 404, 117 N.W. 353; State v. Mining Co., 169 Mo.App. 79, 154 S.W. 168. See, also, Tucker v. Carlson, 113 Iowa 449, 85 N.W. 901.

In Bliss v. Grayson, supra, the court said: "Notice of appeal by a defendant need not be served on defendants who were dismissed from the action before judgment." O'Keefe v. Omlie, supra, is precisely to the same effect. As a matter of course such must be the case. When the judgment of dismissal was entered, which is still in full force and effect, the ice company went out of the case, and thereafter its legal relation to the defendant coal company was precisely the same as though it never had been a party at all. True, the plaintiff might have appealed from the judgment of dismissal, and might thus have continued the ice company in the case; but he did not do so, and therefore the judgment of dismissal stands. The plaintiff was, however, the only one who could have complained of that judgment. The coal company, being sued as a joint wrongdoer, cannot legally complain because the action was dismissed against the ice company before judgment. The coal company, being a joint wrongdoer, is liable for the whole damage, and has no right of contribution against its joint wrongdoer, and hence cannot complain if the other joint wrongdoer is dismissed from the action. 1 Cooley on Torts (3d Ed.) 254; Groot v. R. R. Co., 34 Utah 152, 96 P. 1019; City of Covington v. Whitney (Ky.) 96 S.W. 907. Indeed, the coal company had no right of appeal from the judgment of dismissal. That is squarely decided in the case of City of Covington v. Whitney, supra, and is clearly the logic of the decision in Groof v. R. R. Co. It is, however, contended that the cases of Griffin v. So. Pac. Co., 31 Utah 296, 87 P. 1091, Allen v. Garner, 45 Utah 39, 143 P. 228, and other cases there cited, hold to the contrary. There is no merit to the contention. In all of those cases there were joint judgments, and the party upon whom service of notice was omitted would have been affected by the modification or reversal of the judgment. The distinction between those cases and the one at bar is stated in the case of Langton L. & C. Co. v. Peery, 48 Utah 112, 159 P. 49, in the following words:

"It will be observed, however, that the test whether a party below is a necessary party to an appeal, as laid down in that case [Allen v. Garner, 45 Utah 39, 143 P. 228], as in all other cases emanating from this court, is that the omitted party must be affected by a modification or reversal of the judgment appealed from. If a party would not be affected he is not a necessary party, and hence to omit to serve him with notice of appeal. * * * is not fatal to the appeal."

All of the Utah cases are clearly distinguishable from the case at bar, and hence have no controlling influence here.

It is, however, further contended that inasmuch as, under our statute (Comp. Laws 1917, section 6484), a party who fails in an action otherwise than upon the merits "may commence a new action within one year after the reversal or failure" of the original action, that for that reason the ice company is interested in this appeal and should have been served with notice. That contention entirely overlooks or ignores the real purport of the statute. What the statute permits is a "new action" which is entirely independent of the one that failed. The original action is ended, so far as the defendant against whom it was dismissed is concerned, precisely the same as though no new action could be commenced. If it be true that in this case the ice company must be served with notice because the new action could be commenced against it; if commenced within the time limited by the statute, then it is also true that in this state the joint wrongdoers have a right to be served with notice of appeal, whether parties to the action or not, for the simple reason that a new action can be commenced at any time against them, if commenced within the statutory period of limitations, so long as the damages remain unsatisfied.

But it is urged that the ice company is interested in maintaining the judgment against the coal company and in having it paid by that company. While that may be true, it would be no less true if the ice company had never been made a party to the action. It is true precisely the same so far as the driver of the wagon is concerned, who., because of his negligence caused plaintiff's injury of which he here complains. So long as the damages remain unsatisfied the driver of the wagon may be sued, if sued within the statutory period of limitations, and hence he is also interested in having the coal company pay the judgment. No one would, however, seriously contend that he could come into this court and insist upon an affirmance of the judgment against the coal company. The legal status of the ice company, in view of the entry of the judgment of dismissal, is, however, precisely the same as that of the driver of the wagon. True, it was made a party to the action, but the district court found and adjudged as a matter of law that it was not responsible for the wrong, and entered judgment dismissing the action against it. The ice company, therefore, is no more a party to the action than is the driver of the wagon, and for that reason has no right to be heard on the coal company's appeal any more than the driver would have. The case of Humphreys v. Hunt, 9 Okla. 196, 59 P. 971, is relied on as holding to a contrary doctrine. While it is true that in that case the Supreme Court of Oklahoma has apparently arrived at a different conclusion, yet the writer confesses his utter inability to understand the legal principle upon which the decision in that case rests. Another case is also relied on, namely, Bullock v. Taylor, 112 Cal. 147, 44 P. 457. That case is a case of joint...