Datta v. Staab

• Citation: 343 P.2d 977,173 Cal.App.2d 613
• Court: California Court of Appeals
• Decision Date: 14 September 1959
• Parties: Peter J. DATTA, Plaintiff and Appellant, v. Daniel STAAB and Abbot A. Hanks, Inc., Defendants and Respondents. Civ. 18370.

Page 977

343 P.2d 977

173 Cal.App.2d 613

Peter J. DATTA, Plaintiff and Appellant, v. Daniel STAAB and Abbot A. Hanks, Inc., Defendants and Respondents.

Civ. 18370.

District Court of Appeal, First District, Division 1, California.

Sept. 14, 1959.

Rehearing Denied Oct. 13, 1959.

Hearing Denied Nov. 10, 1959.

Jack H. Werchick, San Francisco, for appellant.

Clark, Heafey & Martin, Oakland, for respondents.

WAGLER, Justice pro tem.

In this action a jury returned a verdict in favor of plaintiff in the sum of $7,500. From a judgment in favor of defendants, notwithstanding said verdict, plaintiff has appealed. The appeal comes before us upon a clerk's transcript.

The sole question involved is the applicability of section 439 of the Code of Civil Procedure to the circumstances disclosed by the record. This section reads as follows: 'If the defendant omits to set up a counterclaim upon a cause arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor.'

On April 4, 1956, automobiles owned and operated by Datta and Staab were involved in a collision in San Mateo County, California. Each thereafter sued the other for damages for personal injuries in the Superior Court of the State of California in and for the city and County of San Francisco.

In his opening and closing briefs appellant has made numerous statements of fact regarding circumstances and events which might have some bearing on the issues herein involved but which are entirely outside the record. Under well settled rules of appellate review such facts will not be considered or discussed. 3 Cal.Jur.2d 781, 782. 'Matter not presented by the record cannot be considered on the suggestion of counsel in the briefs.' 3 Cal.Jur.2d 783; Stonaker v. Big Sisters Hospital, 116 Cal.App. 375, 2 P.2d 520.

The chronology of the pertinent facts disclosed by the record is as follows: May 17, 1956: Complaint filed in Staab v. Datta, action No. 458457, ^* alleging negligence of Datta, prayer for damages for personal injuries in sum of $25,000; June 21, 1956: Answer to complaint filed--verified by Datta (answer pleads unavoidable accident and contributory negligence--no counterclaim or cross-complaint filed); June 28, 1956: Memorandum to set filed by counsel for Staab; September 17, 1956: Acting through different counsel, complaint filed by Datta in action No. 461881 (the case at bar) alleging negligence of Staab, prayer for damages for personal injuries in sum of $25,000; October 8, 1956: Answer to complaint filed by Staab (action No. 461881), (answer pleads contributory negligence, and as a separate defense alleges: 'That there is a prior suit pending before this Court involving the same parties; that said suit is entitled Daniel Staab v. Peter J. Datta, No. 458457; that said suit arises out of the same transaction set forth in the complaint as a foundation of the plaintiff's claim; that said prior suit No. 458457 is a bar to this action'); April 29, 1957: Answer of Abbot Hanks, Inc. (sued as Doe Co., a corporation) filed in action No. 461881 (answer pleads contributory negligence); August 13, 1957: Certificate of mailing of pre-trial conference order filed (order also mailed to counsel representing Datta in instant action); August 20, 1957: Pre-trial conference order dated August 9, 1957 filed, order states the issues to be: '[N]egligence of defendant * * * negligence of plaintiff * * * and the damages sustained by plaintiff' (pre-trial order recites the presence of counsel representing Datta in the instant action); October 24, 1957: Dismissal of action with prejudice dated September 10, 1957 filed and signed by Daniel Staab and his attorneys (this document reads as follows: 'All claims and demands sued upon in the above entitled action having been compromised and fully settled, satisfied and discharged, said action is hereby dismissed, with prejudice, each party to pay his own costs. This dismissal shall operate as a retraxit'); November 7, 1957 (action No. 461881): Pre-trial order dated October 29, 1957 filed (this order purports to set forth in haec verba the pre-trial statement of each side; defendants' statement contains the following language: 'Defendant Staab pleads as a defense that this action is barred under the provisions of Section 439 of the Code of Civil Procedure. Action No. 458457 as set forth in defendant Staab's special defense has been settled. The issues are: Negligence; contributory negligence; damages and the special defense in bar.' The pre-trial order concludes with the language of the pre-trial judge as follows: 'Counsel for defendant states that he has a special defense pleaded herein, stating that a prior action between these parties is now a bar to the present action, and this special defense should be determined in advance of proceeding with the trial. Counsel should submit their authorities thereon to the trial Court on the morning of trial.'); April 21, 1953 (action No. 461881): '[C]ause came on regularly for trial by jury. * * * Thereupon, in chambers with counsel present, a motion of defendants to dismiss action is taken under submission; and Superior Court file No. 458457 is marked defendants' exhibit A in evidence.' The motion to dismiss was subsequently denied but after a verdict in plaintiff's favor, defendants' motion for judgment notwithstanding the verdict was granted on the ground that the claim upon which the action was based was barred by the provisions of Code of Civil Procedure, section 439. It is from the judgment entered pursuant to said motion that plaintiff has appealed.

The rule is now well established that where separate causes of action, whether for personal injuries or for property damage, arise out of an automobile collision, the accident may be said to be the 'transaction' out of which the causes arose within the meaning of the provision of Code of Civil Procedure, section 439. Todhunter v. Smith, 219 Cal. 690, 28 P.2d 916; Schrader v. Neville, 34 Cal.2d 112, 207 P.2d 1057; Engleman v. Superior Court, 105 Cal.App. 754, 288 P. 723; Gorman v. Superior Court, 23 Cal.App.2d 173, 72 P.2d 774.

'[T]o avoid the forfeiture which the statute brings about it should be narrowly construed. 2 Witkin, California Procedure, § 585, p. 1597; see Rialto Construction Co. v. Reed, 17 Cal.App. 29, 118 P. 473; Gigliotti v. Nunes, 45 Cal.2d 85, 286 P.2d 809; Todhunter v. Smith, 219 Cal. 690, 28 P.2d 916. However, when the defense is seasonably and properly raised the provisions of Code of Civil Procedure, section 439, are mandatory. 2 Witkin, California Procedure, § 585, p. 1595; Kittle Mfg. Co. v. Davis, 8 Cal.App.2d 504, 47 P.2d 1089. Under such circumstances every claim which tends to diminish or defeat plaintiff's recovery and arises out of the 'transaction' must be pleaded or it is barred, i. e., the judgment rendered in the first action (seasonably pleaded) is a complete bar to any subsequent action on any such claim. Brunswig Drug Co. v. Springer, 55 Cal.App.2d 444, 130 P.2d 758; Baker v. Eilers Music Co., 175 Cal. 652, 166 P. 1006; Swanson v. Tearney, 87 Cal.App.2d 191, 196 P.2d 49; see 10 So.Cal.L.Rev. 454; 40 Cal.L.Rev. 423. This is true regardless of defendant's or the trial court's mistaken conclusion that it could not have been pleaded as such. Kittle Mfg. Co. v. Davis, 8 Cal.App.2d 504, 47 P.2d 1089. In Kittle the court said at page 513 of 8 Cal.App.2d, at page 1094 of 47 P.2d: 'The policy of the law is so obvious as to require little comment. It is to require reciprocal right flowing from a common source to be determined in a single action, thus avoiding not only unnecessary vexatious litigation but also the contingency of conflicting judgments * * *.'

Gigliotti v. Nunes, 45 Cal.2d 85, 286 P.2d 809, does not hold, as appellant contends, that the application of the statute in question is discretionary. The case holds only that the refusal of the trial court to permit an amendment to the answer to a cross-complaint setting up the defense of res judicata was not an abuse of discretion, the request not having been made until after all the testimony was in and both sides had rested. The case does, however, recognize the fact that had the defense been seasonably and properly pleaded it would have been an effective bar to the cross-complaint.

Appellant has raised but one point of law which appears not to have been heretofore clearly decided adversely to him. All of the cases which have come to our attention which have held Code of Civil Procedure, section 439 to be a bar to a transaction counterclaim have been cases in which the first action went to judgment as the result of a trial upon the merits. Should a different rule obtain where, as in the instant case, the first action is terminated (after issues are joined) by the filing of a dismissal with prejudice, '[a]ll claims and demands sued upon * * * having been compromised and fully settled, satisfied and discharged'? The answer to this question should depend, we believe, on whether or not such a judgment of dismissal is res judicata.

'In its primary aspect the doctrine of res judicata operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. * * * In its secondary aspect res judicata has a limited application to a second suit between the same parties, though based on a different cause of action. The prior judgment is not a complete bar, but it 'operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.' [Citation] This aspect of the doctrine of res judicata, now commonly referred to as the doctrine of collateral estoppel, is confined to issues actually litigated.' Clark v. Lesher, 46 Cal.2d 874, 880, 299 P.2d 865, 868. Section 439 of the Code of Civil Procedure represents a statutory...