Geer Bros., Inc. v. Crump

• Citation: 349 So.2d 577
• Parties: GEER BROTHERS, INC., a corporation v. Timothy P. CRUMP et al. SC 2360.
• Decision Date: 26 August 1977
• Court: Supreme Court of Alabama

Page 577

349 So.2d 577

GEER BROTHERS, INC., a corporation v. Timothy P. CRUMP et al.

SC 2360.

Supreme Court of Alabama.

Aug. 26, 1977.

James J. Sledge of Roberts & Davidson, Tuscaloosa, for appellant.

Bruce McEachin of Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellees.

BEATTY, Justice.

This is an appeal by the plaintiff from the granting of the defendants' motion to dismiss on the ground of res judicata. We affirm.

On August 4, 1976 Geer Brothers, Inc. filed an action to recover damages sustained on account of losses due to a fire at their warehouse and business premises. Joined as defendants were Timothy P. Crump, Dennis E. Painter, Painter and Crump Insurance, a partnership, Pennsylvania National Mutual Casualty Insurance Company, and several unknown parties. An amended complaint containing five counts was filed subsequently. Counts three, four and five of this amended complaint alleged that the plaintiff, Crump and Painter made a contract whereby those defendants undertook to provide adequate insurance coverage for the plaintiff's business operations and premises. In substance plaintiff alleged that its business operations included taking custody of items of personal property belonging to others, and that the insurance coverage provided by defendants Painter and Crump under their contract proved to be inadequate when a fire occurred on May 2, 1974 destroying that personal property. Counts three and five proceeded on the theory of breach of contract, while count four alleged negligence in failure to procure adequate insurance. Each count demanded $15,000.00 damages together with interest and costs.

The defendants Crump and Painter moved to dismiss the complaint on several grounds, including the ground of res judicata. They alleged:

(8) For that on, to-wit, November 11, 1974, the Plaintiff herein filed suit against these same Defendants, being Civil Action No. 6290 formerly pending in this Court, for the same cause of action or causes of action contained in this suit and on, to-wit, April 4, 1975, a judgment in favor of this same Plaintiff was entered against these same Defendants and the matters complained about in the complaint in this case have already been adjudicated or, if not adjudicated, the matters complained of in this case should have been included in and claimed in said former suit.

In opposition to the defendants' motion to dismiss, the plaintiff filed an affidavit of Aaron Geer, president of the plaintiff:

3. That during the trial of the prior suit, evidence was brought forth on behalf of Geer Brothers, Inc. tending to show inadequate fire insurance coverage on the building of Geer Brothers which was destroyed by fire and on the inventory contained therein.

4. Further relating to the evidence brought out at trial of the prior suit, said evidence showed a loss through fire of inventory belonging to or on consignment to Geer Brothers, Inc. I do not recall any testimony concerning items of personal property belonging to others which had been delivered to Geer Brothers, Inc., for repair, service, etc.

5. A part of the reason for not including any claim for loss occasioned by the destruction of property belonging to others in the prior suit was the fact that shortly after the fire, Mr. Crump and Mr. Raymond G. Ashby asked me to prepare a list of the items owned by other persons that had been destroyed in the fire. I am informed that Mr. Ashby was at that time associated with General Adjustment Bureau, Inc. To the best of my recollection, I was told or given the impression that Mr. Ashby was adjusting this claim for my insurance company, Pennsylvania National.

7. After Mr. Ashby and myself agreed on the list, he left and I did not hear from him for several weeks. After this lapse of time I contacted Mr. Crump regarding payment of this claim. On several occasions Mr. Crump stated to me that it was his impression that the claim would soon be paid. I have no reason to doubt that Mr. Crump was sincere in these statements. Geer Brothers, Inc., still has its business insurance with Mr. Crump.

8. At some point Mr. Ashby told Mr. Crump that he needed more information and wanted to revalue some of the items lost. After some time, Mr. Ashby came out to our offices again, at which time we went over the list, adding more detail as regards brand name, year, model number, cost of repairs, etc. A new list was prepared and Mr. Ashby came by and picked up this second list. After this time I continued to contact Mr. Crump concerning payment of the claim and, in response to my inquiries, Mr. Crump indicated that it was his understanding that the claim would be paid. At some point Mr. Crump told me that Mr. Ashby was waiting for me to furnish him more information. However, Mr. Ashby had not contacted me since the time that the second list had been prepared.

9. After more conversations with Mr. Crump, I was told that Mr. Ashby wanted to revalue the items again. I made an appointment and met with Mr. Ashby at his office where we accomplished this reevaluation and arrived at a third list.

10. A few weeks after this third list was prepared, I received a letter from Mr. Ashby, a copy of which is attached hereto and made a part hereof as if set out fully herein, informing me that the insurance company felt that there was no coverage under my policy for this sort of loss. This letter is dated June 3, 1975, which is some months after the trial of the prior suit. The events which I have described above concerning the attempts to adjust this claim occurred both before and after the trial of the prior suit. It was not until some months after the prior suit was tried that I received notification from anyone, including any of the defendants in this action, that coverage for this loss was being denied.

11. Relating to the goods which were lost in the fire and are the basis for this suit, the business of Geer Brothers, Inc., included a repair business wherein it was customary for us to accept for repair various mechanical devices, etc. Many of the items accepted for repair were parts or components of mobile homes, motor homes, campers and other recreational vehicles. We also accepted for repair other devices including window air conditioners and even portable toilet systems.

12. This repair business has been a part of our operation for a number of years, and was a part of our operation at the time the insurance policy in question was written.

Following a hearing on the motion to dismiss, the trial court dismissed the action against Crump, Painter and their partnership on the ground of res judicata.

At the outset, the plaintiff argues on this appeal that the trial court had before it only the complaint, the motion to dismiss, the Geer affidavit, and briefs of the parties when the motion to dismiss was ruled upon. The defendant, on the other hand, states that the record in Civil Action No. 6290, which is contained in the record on this appeal, was before the trial court. The record on this appeal is silent on the question of whether either party introduced that record as part of the pleadings or as evidence for or against that motion. However, any such action would have been superfluous, because when a party refers to another proceeding or judgment of a court in his pleading before that court, as was done here, the court on motion to dismiss may take judicial notice of the entire proceeding, or so much of it as is relevant to the question of law presented. Cogburn v. Callier, 213 Ala. 38, 104 So. 328 (1925). Moreover, the parties on appeal have argued the issue of res judicata, and of necessity have brought into consideration the effect of the former judgment. Therefore, we have before us the principal question: Whether the action of the trial court was proper, and in our response to that issue we shall treat the trial court's ruling as having been one upon a motion for summary judgment, Rule 12(b)(6), ARCP.

The description of those cases against which the defense of res judicata is inapplicable has not always been an easy task, but the decisions have laid down helpful guidelines.

In Reid v. Singer Sewing Mach. Co., 218 Ala. 498, 119 So. 229 (1928), the plaintiff's first suit against the same defendant had charged an entry into plaintiff's home and a trespass in taking a sewing machine, the gravamen of the action. After a judgment was rendered in that action, plaintiff brought another action against the same defendant charging a trespass to the plaintiff's home, the gravamen of the action, and other misconduct involving the taking of the machine. In considering whether the former judgment was a bar to the latter, and after considering earlier authorities, the court recited two common principles:

(1) When the former action was between the same parties, that former judgment is conclusive of questions actually litigated and which could have been litigated.

(2) Even though the forms of the actions, past and present, are different, if substantially the same evidence supports their issues, the judgment in the former action is a bar to the latter.

Using these guides, the court held the plaintiff's action barred because the trespass upon the land and a trespass to personal property in a continuous transaction allowed for one right of action, recovery in one barring an action for the other. Of course, it will be observed readily that the case involved an entry into a private dwelling to seize a sewing machine which the court considered one continuing undertaking, and doubtless it was for that reason that the court concluded that the same evidence would support the two causes of actions; otherwise the result would appear erroneous under the evidentiary principle.

But these principles, it has been held, do not depend upon complete identity of parties. If the former action included some parties not joined in the later action, or even if additional parties are joined in the second action, the former judgment still...