Cotton v. Walker

• Decision Date: 31 October 1932
• Docket Number: 30208
• Citation: 164 Miss. 208,144 So. 45
• Court: Mississippi Supreme Court
• Parties: COTTON v. WALKER

144 So. 45

164 Miss. 208

COTTON v. WALKER

No. 30208

Supreme Court of Mississippi

October 31, 1932

Division A

1 JUDGMENT.

In second action between same parties, although causes of action may be different, judgment in first action is res judicata as to any point actually litigated or determined.

2 JUDGMENT.

Question whether defendant was guilty of negligence contributing to accident having been litigated and determined in defendant's previous action against plaintiff, judgment unappealed from, was conclusive of all issues determined even if court committed error, and plaintiff could not maintain action based on same alleged acts of negligence.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Noxubee county, HON. J. I. STURDIVANT, Judge.

Action by Andrew Cotton against W. A. Walker. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Charles Strong, of Macon, four appellant.

To constitute res adjudicata there must be first: Identity in the thing stied for. Second: Identity of the cause of action. Third: Identities of person and parties to the action.

Jones v. George, 126 Miss. 581.

Rights, claims or demands of the parties growing out of the same subject-matter, but which are not put in issue or adjudicated in the former action, are not barred by the judgment therein. And a fortiori a judgment is not a bar to the litigation of any demand or cause of action which, from the nature of the case, the form of the action, or the character of the pleading, could not have been adjudicated in the former suit.

34 C. J., page 823.

A judgment is not conclusive on any point or question which from the nature of the case, the form of the action or the character of the pleadings could not have been adjudicated.

34 C. J. 935.

It was not presented by the Meadlugs, and therefore could not have been adjudicated.

Hubbard v. Flynt, 58 Miss. 266.

In order that the judgment in a first suit may constitute a bar to a second suit, the cause of action in both suits must be the same.

Hardy v. O'Pry, 102 Miss. 197.

Your appellant would state to the court that by the ruling of this court, in the instructions referred to, the laws of the State of Mississippi were not given to the jury.

In the State of Mississippi contributory negligence is not a bar to recovery.

Wheat v. Wheat, 139 So. 849.

The driver of each automobile was a joint tortfeasor, and each was responsible for the accident.

Westfield v. The Shell Petroleum Corporation, 138 So. 561.

Charles Richardson, of Macon, for appellant.

In view of the fact that the jury was erroneously instructed in the Walker v. Cotton case and upon said erroneous instruction brought in a verdict for Walker should not preclude Cotton from having an opportunity to have his case tried by a court of competent jurisdiction, which he has never had an opportunity to have heard.

In the replication to the special plea the appellant states that he has other witnesses and other testimony that was not heard in the case of appellee against appellant; that his cause has never been heard by a court of competent jurisdiction; that the grounds of negligence in this cause are not identical with the grounds of negligence in the cause of appellee v. appellant.

Charles Strong and Chas. Richardson, both of Macon, for appellant.

The rule of res adjudicata is based upon the idea that there should be an end of litigation, as well as upon the maxim that one should not be twice vexed for the same cause.

Ludwick v. Penny, 73 S.E. 228.

The doctrine of res adjudicata is not a mere rule of procedure, but a rule of justice unlimited in operation, which must be enforced whenever its enforcement is necessary for the protection of rights and preservation of the repose of society, based upon the grounds that there should be an end to litigation, and that a person should not be twice vexed for the same cause.

Walsh's Estate, 74 A. 563.

A plea of res adjudicata must show either an actual merger, or that the same point has already been decided between the same parties, that the plaintiff had an opportunity of recovering, and, but for his own fault, might have recovered, in the original suit, that which he seeks to recover in the second action.

Womack v. City of St. Joseph, 10 L.R.A. (N.S.) 140.

It will be found, in all cases where the point was made or adjudicated, that the party to be bound had his day in court, that he was either a party or in privity, and had once the chance to meet his adversary face to face on the issue, in fact or constructively. Many cases have been adjudicated showing the nicest discrimination in the application of estoppel by judgment, and in none of them will a rigid analysis show a deviation in principle from the rules laid down and principles announced hereinbefore as governing the application of res adjudicata.

Womack v. City of St. Joseph, 10 L.R.A. (N.S.) 140.

When the appellee in this case, was plaintiff in a suit against this appellant, the question as to whether or not the then plaintiff was guilty of contributory negligence did not in any regard affect the rights of this appellant, for it was not his rights that were then being determined. It was a different ease.

Brahan v. Meridian Light & Ry. Co., 83 So. 467.

Inasmuch as the question involved in the last case could not have been decided in the first case, the first case did not bar the second case.

Hamreel v. Southern Ry. Co., 66 So. 426, 74 So. 276.

The judgment in one suit will be a bar to another suit only when a remedy exists which insures the same relief sought in the two separate actions. The test is whether the remedies pursued in two or more suits could have been included in one.

Wardman-Justice Motors Co. v. Pierce, 69 A.L.R. 648.

Contributory negligence is not a bar to recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of property, or the person having control over the property.

Section 511, Code of 1930.

In those instances where both parties are guilty of negligence, and both parties have suffered an injury, there is no provision in the law for a mutual cancellation of one's damage against the damage of the other. There is no mutuality of claim; there is no provision for setoff; there is no provision for mutual credits; there is no way for the measuring or adjudication of the rights involved in the defendant's claim for damages in the trial of the case of the plaintiff's claim for damages. While the negligence of each will be involved in the trial of both cases, there is no remedy fixed by law for the adjudication of the mutual liabilities involved therein.

Contributory negligence is a partial defense, and it bars the right of a plaintiff to recover for the proportion of the damages which is attributable to his own negligence.

Waterford Lumber Company v. Jacobs, 97 So. 187.

While the pleadings and instructions did not refer to the statute on contributory negligence still the jury had a right to consider the question of contributory negligence and to diminish damages in proportion to the negligence of the plaintiff to the defendant. It is true in rendering a verdict the jury must have considered that plaintiff was guilty of negligence and have diminished the damages accordingly. While it is true that no instruction or no pleading was made setting up contributory negligence, still the jury is presumed to have a knowledge of law and in the present case, must have acted upon it.

Goodman v. Lang, 130 So. 50.

Although a judgment may be conclusive evidence on any point formerly litigated and decided between the same parties, yet it is not pleadable in bar of a second action unless founded on the same identical cause of action. If this identity exists the former judgment may be interposed to prevent a second recovery by plaintiff on the same cause, or to bar the maintenance of a second action upon a cause, against which defendant has already successfully defended himself. But to have this effect it must clearly appear or be demonstrated on what cause of action the former judgment was rendered and that it is the same as the cause of action brought forward in the second suit; and no estoppel arises if this matter can be made out only by inference or conjecture. If the causes of action involved in the two suits are not the same, identically or substantially, then, whatever may be the effect of the judgment as evidence, it is no bar to the maintenance of the subsequent suit.

23 Cyc. 1155.

Matters alleged by way of defense to an action, and fully negatived by the judgment therein, cannot afterward be made the basis of a new action by the former defendant against the former plaintiff. But it is otherwise if such matters, although they may have been used as a defense in the first suit, constituted a substantive and distinct cause of action which defendant in the formet suit was not bound to plead or set up.

23 Cyc. 1163.

For the purpose of this rule it is not sufficient that the question arising in subsequent litigation is identical with the one decided, in some respects only, it must be so in all respects. If therefore there is an element in one of the questions which is not contained in the other, the rule does not apply, for the obvious reason that this additional element may have been the turning point in the previous decision.

Umlauf v. Umlauf, 57 Am. Rep. 880.

Dunn & Snow, of Meridian, for appellee.

In the original suit, Walker against Cotton, damages were claimed by reason of the negligence of Cotton. Therefore, Cotton's negligence was involved in that case and was a necessary issue to the determination of that suit. Either Walker...