Hathcock v. Mitchell

Decision Date21 January 1965
Docket Number4 Div. 170
Citation277 Ala. 586,173 So.2d 576
PartiesB. E. HATHCOCK v. Edward S. MITCHELL et al.
CourtAlabama Supreme Court

T. E. Buntin, Jr., Buntin & Buntin; Alto V. Lee, III, Lee & McInish, Dothan, and B. B. Rowe, Rowe & Lane, Enterprise, for appellant.

Joe C. Cassady, Enterprise, and Jas. W. Kelly, Geneva, for appellees.

HARWOOD, Justice.

The appellees in this case are the executor and executrix of the estate of D. D. Mitchell, deceased. For convenience, the appellees will hereinafter be referred to as Mitchell.

In 1946, D. D. Mitchell built a store building in Enterprise. The building was leased to the A and P Tea Company who operated a grocery business therein.

In March 1959, D. D. Mitchell entered into a contract with B. E. Hathcock, doing business as Hathcock Roofing Company, whereby Hathcock was to place a new roof on the building. Some four or five days after the roof had been installed by Hathcock, and on a Sunday, the roof collapsed and fell into the store.

Thereafter A and P filed a suit in the United States District Court for the Middle District of Alabama, in Dothan, against Hathcock and Mitchell as co-defendants.

In the complaint as amended in the Federal court, A and P alleged among other things, that:

'The defendants, B. E. Hathcock d/b/a Hathcock Roofing Company and D. D. Mitchell, deceased, during the month of March 1959, so negligently repaired the roof of said building as to cause the roof of said building to cave in on March 22, 1959.

'As a proximate result of the negligence as aforesaid of defendants B. E. Hathcock d/b/a Hathcock Roofing Company and D. D. Mitchell, deceased, plaintiff suffered the following damages * * *.'

The pretrial hearing order entered in the Federal District Court was received in evidence. This order reveals that both appellant and appellee here, who were co-defendants in the Federal Court, pleaded the general issue.

We excerpt the following from the charge in that case which was received in evidence in the proceedings here being reviewed:

'Now, the defendant Mitchell comes into court, and they say, 'We did own the building up there, we had leased it to the A & P Tea Company, we were under a duty to furnish a place for A & P Tea Company, but we didn't breach any duty that we owed A & P, and we are not guilty of any negligence.' By the testimony they, in effect, admit that A & P is entitled to recover, but Mitchell says that A & P should recover from Hathcock, because, 'Since we were not guilty of any negligence, and since Hathcock Roofing Company failed to make a proper inspection, or an inspection that was required under proper circumstances, and that proximately contributed to the injuries of A & P, then it is Hathcock that was negligent and not Mitchell.'

'Hathcock comes in, and they, in effect, say that, 'Well, A & P is entitled to recover, but they are not entitled to recover from us; we were not guilty of any negligence, we didn't fail to do anything that we should have done, we didn't do anything that we should not have done.' 'The damages to A & P,' says Hathcock, 'was proximately caused by the negligence of Mitchell in the construction of this building, which faulty construction was unknown to us, and which, after exercise of the diligence that we should have exercised, we say was still unknown to us.'

'And there are the theories of your case; there are the contentions of each defendant in this case.'

In the Federal case the jury returned a verdict in favor of the plaintiff against Mitchell and assessed damages at $12,000. Pursuant to this verdict, the court entered a judgment in favor of the plaintiff against Mitchell for the amount found by the jury as damages. The court further adjudged that the plaintiff take nothing by its complaint against Hathcock.

Thereafter Mitchell filed suit against Hathcock in the Circuit Court of Coffee County. This cause went to the jury on two counts, as amended, that is Counts 6 and 9.

Count 6 alleged negligence on the part of Hathcock in the inspection of the overhead structure of the building in question, the repairs thereto, and the installations of the bonded roof. It further alleged that said roof and overhead structure collapsed as a proximate consequence of said negligence and that Mitchell was damaged in the amount sued for.

Count 9 is identical with Count 6 except as to an additional claim of special damages of $12,000, plus interest thereon from 7 June 1960, which Mitchell averred was required to be paid A and P for damages to its goods and equipment as a result of the collapse of the roof.

This claim of special damages resulted from the judgment obtained against Mitchell in the suit in the Federal court.

Demurrers to Counts 6 and 9 being overruled, the defendant Hathcock thereafter filed a number of pleas to both counts.

Pleas 1 and 2 in each instance were pleas of the general issue. Plea 3 in each instance averred contributory negligence on the part of Mitchell in that damage to the building was occasioned by the negligent construction or superintending of construction of said building by persons who were not registered as general contractors by the Board of Registration for General Contractors of the State of Alabama, as required by Title 46, Section 65 et seq., Code of Alabama 1940, and that said building when constructed cost over $10,000.

Plea 4 in each instance averred contributory negligence on the part of Mitchell in negligently failing to have the plans and specifications of said building made by an architect registered by the Board of Registration for Architects of the State of Alabama as required by Title 46, Section 8 et seq., Code of Alabama 1940, and that said building when constructed cost over $10,000.

Plea 5 in each instance alleged negligence on the part of Mitchell in that the overhead and supporting structure of said building was negligently constructed.

Plea 6 as originally filed averred that this cause was res judicata and that Mitchell was estopped to prosecute this action on account of the institution on 3 September 1959 by the A & P Tea Company, an Arizona Corporation, the tenant in said building, of an action against Mitchell and Hathcock in the United States District Court, Middle District of Alabama, Southern Division, wherein A & P Tea Company was the plaintiff and Mitchell and Hathcock were defendants.

It was further averred that the defendants, Mitchell and Hathcock, in said action in the United States District Court were identical with the parties in the action in the present suit, and that Mitchell's alleged cause of action in the present suit was identical with the facts as alleged in the action in the United States District Court; that the evidence in support of the allegations in the present cause would be substantially identical to that adduced at the trial of the action in the United States District Court before Judge Frank M. Johnson and a Jury; that at the close of the evidence in the trial in the United States District Court, the jury rendered a verdict finding the issues in favor of A & P Tea Company and against Mitchell, and assessed damages at $12,000; that thereafter the United States District Court entered a judgment in favor of A & P Tea Company against Mitchell for $12,000, and also entered a judgment for Hathcock as against A & P Tea Company; that said final judgment was res judicata and in bar of Mitchell's right to maintain this action and that Mitchell was estopped to prosecute this action; that said judgment in the United States District Court has not been set aside, modified, or reversed, and that the same remains in full force and effect.

Pleas 10 and 11 again averred and set forth the judgment of the United States District Court as aforesaid as res judicata in bar of this action, and in bar of recovery of the special damages of $12,000 plus interest as claimed by Mitchell in Count 9.

Demurrers were filed by Mitchell to each of said pleas except Pleas 1 and 2, the pleas of the general issue. The demurrers to Plea 5, which alleged contributory negligence on the part of Mitchell in negligently constructing the overhead supporting structure of said building, were overruled.

Demurrers were sustained to the remaining pleas.

Thereafter, Hathcock filed Plea A in answer to the appellee's claim for special damages of $12,000 as contained in Count 9. The judgment of the United States District Court was again pleaded as res judicata in bar of Mitchell's right to recover said special damages and it was further averred that Mitchell was estopped to prosecute the claim therefor. As exhibit to said plea, a copy of the complaint filed in the United States District Court by the A & P Tea Company was attached. Mitchell refiled their demurrers to Plea A and these demurrers were sustained by the trial court.

Mitchell's amendment to Counts 6 and 9, wherein the claim for loss in rentals was stricken, was filed immediately prior to the trial of this cause in the court below. This necessitated the refiling of all prior demurrers, pleas, and demurrers to said pleas. The rulings of the court below were in accord in each instance with the rulings previously entered. In the interest of brevity these rulings are not again here set forth.

The rule of res judicata applies in those cases where the suits are the same, the identical point is directly in issue, and judgment has been rendered in the first suit on that point. Gilbreath v. Jones, 66 Ala. 129; Ryan et al. v. Young, 147 Ala. 660, 41 So. 945. Where the issues in the first suit were broad enough to comprehend all that was involved in the issues of the second suit, the test is not what the parties actually litigated, but what they might or ought to have litigated. Savage v. Savage, 246 Ala. 389, 20 So.2d 784.

At the threshold of our considerations we are confronted with the court's rulings in connection with the pleas of res judicata as these...

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    ...the employee, the latter's incompetence, unfitness or dangerous characteristics proximately caused the injury. Hathcock v. Mitchell, 277 Ala. 586, 173 So.2d 576, 584 (1965). We now expressly recognize the tort of negligent hiring or retention of an incompetent, unfit or dangerous employee a......
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