Chicago, R.I. & P. Ry. Co. v. Mashore

• Decision Date: 15 May 1908
• Citation: 96 P. 630,21 Okla. 275,1908 OK 95
• Parties: CHICAGO, R.I. & P. RY. CO. v. MASHORE.
• Court: Oklahoma Supreme Court

96 P. 630

21 Okla. 275, 1908 OK 95

CHICAGO, R.I. & P. RY. CO. v. MASHORE.

Supreme Court of Oklahoma

May 15, 1908

Syllabus by the Court.

In the trial of a case brought for work and labor, it developed that plaintiff had brought a prior action, in which he charged another party, as defendant, for the same services, which action was not tried, and no judgment rendered therein. In the case on trial, defendant asked an instruction to the effect that this former action worked an estoppel to plaintiff's prosecution of his case against it, which was denied by the court. Held not error. The bill of particulars in such former suit, being a quasi admission, was competent as evidence, but did not constitute an estoppel.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence §§ 713-725.]

Where a verdict is found by a jury on conflicting evidence, and is reasonably supported thereby, the cause will not be reversed in this court, on the ground that the same is contrary to the evidence, or not sustained by sufficient evidence.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-3937.]

Section 1, c. 87, par. 6915, Wilson's Rev. & Ann. St. Okl. 1903 providing for an attorney's fee, where an action is brought by any laborer, clerk, servant, nurse, or other person, for compensation for personal services, to be recovered as costs, is in violation of the fourteenth amendment of the Constitution of the United States and void.

Error from District Court, Caddo County; F. E. Gillette, Judge.

Action by W. F. Mashore against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff was affirmed in the district court, and defendant brings error. Reversed, with directions.

On the 5th day of February, 1904. W. F. Mashore, as plaintiff, filed in the office of Homer A. Arends, a justice of the peace of Caddo county, his bill of particulars against the above-named plaintiff in error, the C., R.I. & P. Ry. Co., in which he alleged that, in the month of September, 1903, at the special instances and requests of the defendant railroad company, through its agent and employé, Edward Bitsche, he performed certain work and labor on the said company's roadbed, at an agreed price of 30 cents per hour, and that, by virtue of said work, defendant was indebted to him in the sum of $83.10, for which, with costs, and $15 attorney's fee, he prayed for judgment. Judgment was recovered, and the defendant appealed to the district court where, on the trial of the case, judgment was again recovered against the defendant, which has brought the case to this court by proceedings in error.

Blake, Blake & Low, Dale & Bierer, Benj. F. Hegler, Jr., M. A. Low, and A. J. Morris, for plaintiff in error.

W. R. Wheeler, for defendant in error.

DUNN J.

There are four assignments of error, presented and argued in the brief of plaintiff in error, for our consideration. It appeared on the trial that in September, 1903, the plaintiff, Mashore, filed a verified bill of particulars before the same justice of the peace, in which he sued the above-named Edward Bitsche for this claim, garnisheeing the railroad company. This fact was proven on the trial, and the defendant asked the court to give the following instruction, which related thereto: "You are further instructed that a fact once solemnly stated or admitted in a pleading, filed in a court of justice, is thereafter, so far as the party to such pleading or his privies in interest are concerned, forever established, and such party is not thereafter permitted to dispute it; and, if you find from the evidence that the plaintiff herein, in his pleadings in justice court, or this court, stated or alleged that he performed the work herein sued on for E. Bitsche, then he is forever estopped or concluded thereby."

This instruction was refused, which is the first error assigned. This raised the question of what effect, on the rights of the parties hereto, was the filing of this other suit, which was not prosecuted, and on which no judgment was taken. Was it merely a quasi admission on the part of plaintiff, or did it work an estoppel against his suing defendant in this case? Upon this question, Mr. Wigmore, in his work on Evidence (section 1063), says: "Whether a pleading in another suit is receivable as an admission is a question that has led to a surprising variety of opinion." And, further, in discussing the effect of pleadings in another suit as evidence, in section 1057, he says: "The law of evidence has suffered, in its most vital parts, from an ailment almost incurable-that of confusion of nomenclature." And then he terms statements contained in pleadings not in the same suit as "quasi admissions," denominating pleadings in the case on trial, and the allegations therein contained of opposite parties, as "admissions," or "a waiver relieving the opposite party from the need of any evidence." He then says, in section 1058: "A quasi admission, of the present sort, being nothing but an item of evidence, is therefore not in any sense final or conclusive. The opponent whose utterance it is, may, none the less, proceed with his proof in denial of its correctness. It is merely an inconsistency which discredits, in a greater or less degree, his present claim and his other evidence." Discussing the question of whether or not an estoppel would be created, he says: "An estoppel-i. e., a representation-acted on by the other party, by creating a substantive right, does oblige the estopped party to make good his representation; in other words, but inaccurately, it is conclusive. So, too, but for an entirely different reason, a judicial admission is conclusive, in the sense that it formally waives all right to deny, for the purpose of the trial; i. e., it removes the proposition in question from the field of disputed issues. But statements which are not estoppels or judicial admissions have no such quality, and on principle cannot have." He thereby distinguishes between quasi admission and judicial or solemn admissions; one made outside of the cause at bar, and the other within it. Concerning the same subject, in section 1065, Mr. Wigmore says: "The moment we leave the sphere of the same cause, we leave behind all questions of judicial admissions. A judicial admission is a waiver of proof; and a pleading is, for the purpose of the very cause itself, a defining of the lines of controversy and a waiver of proof on all matters outside these lines of dispute. But this effect ceases with that litigation itself; and when we arrive at other litigation, and seek to resort to the parties' statements as embodied in the pleadings of prior litigations, we resort to them merely as quasi admissions-i. e., ordinary statements-which now appear to tell against the party who then made them." And he concluded section 1066 with the statement "that the pleadings in the prior cause, then, can be treated as evidence in later causes must be conceded." And this is the extent to which this author gives credit to this class and character of evidence.

An inspection of the adjudications of the courts, however, discovers they are not entirely in harmony on the proposition, some of the earlier ones holding an estoppel may be worked by taking an inconsistent position in a prior suit; but we believe the better rule sustains the text of the author which we have cited. A few of the cases which we have examined, and which hold in consonance therewith, are as follows: Rich v. City of Minneapolis, 40 Minn. 82, 41 N.W. 455; Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69, 29 L.Ed. 393; Gardner v. Bean, 124 Mass. 347; Hunter v. Hunter or Milam, 111 Cal. 261, 43 P. 756, 31 L. R. A. 411, 52 Am. St. Rep. 180; Thrall v. Thrall, 60 Wis. 503, 19 N.W. 353; Coward v. Clanton, 79 Cal. 23, 21 P. 359; Consolidated Steel & Wire Co. v. Burnham, Hanna, Munger & Co., 8 Okl. 514, 58 P. 654; 8 Enc. Pleading & Practice, pp. 20-22, and cases cited.

Mr. Wharton, in his work on Criminal Evidence, declares the rule on this subject to be as follows: "The pleadings of a party in one suit may be used in evidence against him in another, not as estoppel, but as proof, open to rebuttal and explanation, that he admitted certain facts."

The case of Thrall v. Thrall, from the Supreme Court of Wisconsin, supra, was one wherein a son, working in New York was induced, by his mother, to return to their 80-acre farm in Wisconsin, and provide for and work the farm during her and his father's actual life, and thereafter the farm should be his. On the death of his parents he filed a verified claim against the estate for his services and the support of his parents. This was done on the advice of counsel, but it was not paid, and no action was taken on it. Later, being in possession of the place, and an action of ejectment being brought against him by the other heirs, he set up his contract, and asked for a specific performance. It was contended in that suit that he was estopped, by his former inconsistent action, from showing that he was the owner of the farm under the contract in question. The court, through Chief Justice Cole, says: "We are utterly unable to perceive any grounds for estoppel resulting from that proceeding. The defendant testified that he was induced to commence the proceeding in the probate court by advice of counsel, who told him he could not hold the farm under his contract. This legal advice he acted upon, filing his petition. But his claim has never been presented, acted upon, or allowed by the probate court, and, of course, has never been paid. It seems to us too plain for discussion that no principle of estoppel can be predicated on the probate proceeding." The syllabus in the case reads: "Where a son, under advice of counsel, puts in a claim for...