Bodeneck v. Cater's Motor Freight System, Inc.

• Decision Date: 31 January 1939
• Docket Number: 27228.
• Citation: 198 Wash. 21,86 P.2d 766
• Court: Washington Supreme Court
• Parties: BODENECK et ux. v. CATER'S MOTOR FREIGHT SYSTEM, Inc., et al.

86 P.2d 766

198 Wash. 21

BODENECK et ux. v. CATER'S MOTOR FREIGHT SYSTEM, Inc., et al.

No. 27228.

Supreme Court of Washington

January 31, 1939

Department 2.

Action by E. F. Bodeneck and wife against Cater's Motor Freight System, Incorporated, and the City of Spokane to abate a nuisance and restrain defendant city from permitting continuance thereof and issuing a permit to use certain property for a motor freight depot. From a judgment of dismissal, plaintiffs appeal.

Reversed as to respondent Motor Freight System, with instructions, and affirmed as to respondent city.

MILLARD J., dissenting.

Appeal from Superior Court, Spokane County; Fred H Witt, judge.

M. E Mack, of Spokane, for appellants.

Charles P. Lund, G. M. Ferris, Louis A. Conyard, and B. A. Farley all of Spokane, for respondents.

BEALS Justice.

Plaintiffs, in their complaint, set forth two causes of action. In the first, they alleged that, commencing December 1, 1936, defendant Cater's Motor Freight System, Inc. (hereinafter referred to as Cater), used premises adjoining an apartment house owned by plaintiffs, for the purpose of maintaining a depot for loading and unloading freight, and so used the premises as to constitute the same a nuisance, by making loud noises both day and night, by releasing from their motor vehicles noxious odors, and by causing the ground to shake and vibrate so that the windows in plaintiffs' apartment house would rattle. In this connection, plaintiffs pleaded an ordinance of the city of Spokane forbidding unnecessary noises, and that defendant Cater had been requested to abate the nuisance, but had refused to do so.

In the second cause of action, plaintiffs alleged that the city of Spokane, May 27, 1929, passed a zoning ordinance, and that according to the terms of that ordinance the use of the Cater property for a depot was forbidden. Plaintiffs prayed that the alleged nuisance be abated; that defendant city be restrained from permitting the continuance thereof and from issuing any permit to use the property for a motor depot; and for other relief.

Defendant city demurred to the first cause of action, and its demurrer was overruled. The city then answered, denying knowledge as to the facts pleaded in the first cause of action sufficient to enable it to form a belief as to the truth or falsity thereof; and, answering the second cause of action, admitted the enactment of the zoning ordinance, and that a portion of the property used by Cater as alleged by plaintiffs constituted property described as class IV of the zoning ordinance; and denied the other allegations in the cause of action.

Defendant Cater admitted its use of the premises in loading and unloading freight; admitted the enactment by the city of the ordinance against unnecessary noises; and admitted the enactment of the zoning ordinance. This defendant affirmatively pleaded a defense of res judicata, in that April 6, 1936, plaintiffs commenced an action against Cater, as defendant, based upon the same allegations as are contained in the complaint in the present action, and that this action was tried and judgment of dismissal entered. Copies of the complaint, answer and judgment in the prior action were attached to defendant's answer in this proceeding. Plaintiffs replied to the affirmative allegations in defendant's answer by admitting the pleadings and judgment in the prior action, but denying the allegation of res judicata.

From the statement of facts filed herein, it appears that the action came on regularly for trial March 22, 1938, Before the court sitting without a jury; that when plaintiffs called their first witness, defendant city objected to the introduction of any evidence, and moved for judgment of dismissal upon the ground that no cause of action was stated against the city. Defendant Cater also objected to the introduction of any testimony, and moved for judgment upon the pleadings, contending that it appeared without denial that the former action was brought based upon the same identical matters involved in the case at bar, was tried on the merits, and that judgment was entered in favor of defendant Cater, dismissing the former action with prejudice. In due time, the court filed its memorandum opinion sustaining the oral demurrer of the city, and granting defendant Cater's motion to dismiss. After denying plaintiffs' motion for a new trial, judgment was entered dismissing the action, from which judgment plaintiffs have appealed.

Error is assigned upon the court's ruling sustaining respondent Cater's motion for judgment in its favor upon the pleadings; upon the ruling in favor of respondent city; upon the denial of appellants' motion for a new trial; and upon the entry of judgment dismissing the action.

In their complaint, appellants alleged that, beginning approximately December 1, 1936, respondent Cater used the tract next to appellants' apartment house as its loading and unloading depot, and it is not contended that the facts pleaded are insufficient to constitute a cause of action as against respondent Cater. This respondent answered the complaint, denying the material allegations thereof, and in an affirmative defense containing two paragraphs pleaded, in the first, that April 6, 1936, appellants sued respondent Cater, attaching to the answer the complaint, answer and decree in the former action, the complaint being practically identical with that in the case at bar. In the second paragraph, respondent alleged that every issue of fact and law involved in the case at bar was, or might have been adjudicated in the prior action, and that the decree in that action constitutes res judicata in the case at bar. Appellants, while admitting the pleadings and judgment in the prior action, as set forth by respondent in its answer, denied the allegations of paragraph two of respondent's affirmative defense.

If respondents' position in this case can be sustained, it must be upon the principle of estoppel by judgment, rather than res judicata. Appellants' complaint, alleging unlawful acts by respondent Cater between dates subsequent to those alleged in the prior action, does not, of course, plead the identical cause of action which was previously determined against them. While the allegations of the complaints are practically identical, different evidence might be offered in the case at bar that cannot be determined from the complaint. It is well settled that, under the doctrines of res judicata and estoppel by judgment, neither the same facts nor identical facts may be re-litigated. In cases involving continued nuisances, it is the general rule that a plaintiff, having once recovered, may recover for subsequent damage, if his complaint is supported by evidence, and may rely upon the prior judgment in his favor as determining the law of the case. So, in an action such as this, the defendant having prevailed in the trial on the merits, the plaintiff cannot recover in a subsequent action in which the facts shown by the evidence are substantially identical with the facts shown in the prior proceeding.

In the case of Hahn v. Miller, 68 Iowa 745, 28 N.W. 51, the supreme court of Iowa affirmed a judgment of the trial court dismissing an action for damages to real property, upon the ground that the evidence was substantially identical with that introduced upon the trial of a prior action between the same parties, which had been determined in favor of the defendant. The question, however, was not determined upon the pleadings, but after a trial.

In the case of Smith v. Inhabitants of Brunswick, 80 Me 189, 13 A. 890, the supreme judicial court of Maine affirmed a judgment in favor of the plaintiff, based upon damages to real property as the result of the construction of a ditch by the defendant. It appeared that in a prior action between the parties, tried six years prior to the trial of the second case, judgment had been rendered in favor of the defendants. It was urged that the prior judgment was a bar. Concerning this issue, the court said [page 891]: 'The damages here claimed are for injuries happening to the plaintiff's premises since the commencement of the other suit. In the former suit the plaintiff may have failed to show that he had suffered any damage by reason of the alleged wrongful acts of the defendants. The record introduced does not show upon what grounds the defendants prevailed. Six years intervened between the two suits. The evidence in this suit, though more or less conflicting, shows that the plaintiff's property has been damaged within the six years next preceding the commencement of this action. It is not sufficient by way of estoppel to show that the matter in controversy may have been determined in a former litigation between the same parties. It must, in order to constitute a bar, be made to appear affirmatively by legal evidence that it was in fact determined. Young v. Pritchard, 75 Me. [513] 51...