Hennessy v. Chicago, B. & Q. Ry. Co.,

• Decision Date: 25 May 1916
• Docket Number: 851
• Citation: 157 P. 698,24 Wyo. 305
• Parties: HENNESSY v. CHICAGO, B. & Q. RY. CO., ET AL
• Court: Wyoming Supreme Court

157 P. 698

24 Wyo. 305

HENNESSY v. CHICAGO, B. & Q. RY. CO., ET AL

No. 851

Supreme Court of Wyoming

May 25, 1916

ERROR to District Court, Sheridan County; HON. CARROLL H. PARMELEE Judge.

Action by William C. Hennessy against the Chicago, Burlington &amp Quincy Railway Company and another to recover damages for personal injuries. Judgment for defendants on the pleadings dismissing the action and plaintiff brings error.

The facts are stated in the opinion.

Affirmed.

F. B Reynolds, for plaintiff in error.

The judgment sustaining the demurrer in the federal court was not a decision upon the merits. This action involves new and additional facts, there being no similarity between them; only the merits of the facts set forth in a petition are admitted by a demurrer; the subject matter of the suit may possess substantial merits not set up in the petition. (Pope v. Pope, 146 S.W. 410 (Ky.); Welsh v. Sarpy County, 127 N.W. 868 (Neb.); Swing v. Karges Furniture Co., 131 S.W. 153 (Mo.); New York Mercantile Co. v. W. M. Cady Lumber Co., 63 So. 304 (La.); Goodrich v. Wallis, 129 S.W. 878; Detrich v. Deavitt, 69 At. 661 (Vt.); Alabama & V. Ry. Co. v. McCerrin, 23 So. 876 (Miss.); Maize v. Bowman, 19 S.W. 589 (Ky.); State v. Cornell, 71 N.W. 961; City of Los Angeles v. Mellus, 59 Cal. 444; Alexander v. DeKernel, 81 Ky. 345; Gould v. Evansville & C. R. Co., 91 U.S. 526; Wiggins Ferry Co. v. Ohio & M. Ry. Co., 142 U.S. 396; City of North Muskegon v. Clark, 62 F. 694; Gilmer v. Morse, 30 F. 476, 46 F. 333; State v. Roth, 1 S.W. 98 (Ark.); Terry v. Hammonds, 47 A. 32; Gallup v. Lichter, 35 P. 985 (Colo.); Florida So. Ry. Co. v. Brown, 1 So. 512 (Fla.); Lockett v. Lindsay, 1 Ida. 324; Stevens v. Dunbar, 1 Blackf. 56 (Ind.); Griffin v. Wallace, 66 Ind. 410; Detrick v. Sharrar, 95 P. 521; Kleinschmidt v. Binzel, 14 Mont. 31, 35 P. 460; Cain v. Union Central Life Ins. Co., 93 S.W. 622 (Ky.); Wilbur v. Gilmore, 21 Pick. 251; Rodman v. Michigan Central R. Co., 26 N.W. 651; Gilman v. Rives, 10 Pet. 298; Woodland v. Newhalls, 31 F. 434; 9 Enc. Plead. & Prac., pp. 621-622; 23 Cyc. 1136, 1139, 1154, 1230; Aurora v. West, 7 Wall. 82; North Muskegon v. Clark, 62 F. 694; Lindsley v. Union Silver Star Min. Co., 106 F. 468; Wilson v. Lowry, 52 P. 777 (Ariz.); Prall v. Prall, 50 So. 867; Terre Haute &c. R. Co. v. State, 65 N.E. 401; Redlands First Nat. Bank v. Goldsmith, 82 N.E. 799 (Ind.); McClung v. Hohl, 61 P. 507 (Kas.); Birch v. Funk, 2 Metcalf, 544; Thomas v. Bland, 14 S.W. 955 (Ky.); Herber's Succession, 44 So. 888; Gerrish v. Pratt, 6 Minn. 61; Swanson v. G. N. Ry. Co., 71 N.W. 1033 (Minn.); Moore v. Dunn, 41 Ohio St. 62; O'Hara v. Parker, 39 P. 1004 (Ore.); Carmony v. Hoober, 5 Pa. St. 307; Duke v. Postal Tel. Cable Co., 50 S.E. 675 (S. C.) Where a demurrer sustained on the ground of defective statement in the cause of action, the ruling is not a bar to a petition setting forth a complete statement of a cause of action.

E. T. Clark and Burgess & Kutcher, for defendants in error.

The cause of action pleaded in the federal court is the same cause of action set forth in the petition here; the judgment of the federal court is res adjudicata and the action in the state court is barred; the servant assumes the risk from and is guilty of negligence in over-straining himself by lifting and pushing heavy objects. (Stenbog v. Minnesota Trans. Ry. Co., 121 N.W. 903, (Minn.); Ferguson v. Phoenix Cotton Mills, 61 S.W. 63, (Tenn.); Worlds v. Georgia Ry Co., 25 S.E. 46, (Georgia); Leitner v. Grieb, 77 S.W. 764, (Mo.); Roberts v. Indianopolis Ry. Co., 64 N.E. 217, (Ind.); Roberts v. Indianapolis St. Ry. Co., 64 N.E. 217.) The demurrer was not sustained in the federal court for omissions of essential facts, but upon a full statement of facts disclosing that no cause of action existed in favor of plaintiff and against defendants under the law; hence the authorities cited by plaintiff with reference to the effect of the ruling of the federal court on the demurrer to plaintiff's amended petition were not in point. The judgment rendered in federal court on the demurrer is conclusive. (25 Cyc. 1152 and cases cited.) The judgment on a demurrer involving a question of substance and not one of form is a complete bar to a subsequent suit on the same claim or demand. (Price v. Bonnifield, 2 Wyo. 280; 25 Cyc. 1170; 2 Black on Judgments, Sec. 506; Herman on Estoppel and Res Judicata, Vol. 1, Sec. 242; Freeman on Judgments, Sec. 249.) A cause of action for personal injury cannot be split; all of the grounds of negligence contributing to the injury are part of but one distinct cause of action. (3 Bates Pl. and Pr., p. 2283; 1 Pl. & Pr. 563; 564 (Note 1); 1 Corpus Juris, p. 1116.) A plaintiff cannot split up his cause of action and experiment with different parts in different courts and thus defeat the bar of a former judgment by setting up additional grounds in subsequent petitions. (Price v. Bonnifield, 2 Wyo. 80; Graham v. Culver, 3 Wyo. 639; Colum v. Webster Mfg. Co., 43 L. R. A. 195; Alley v. Nott, 28 L.Ed. (U.S.) 491; Northern P. Ry. Co. v. Slaght, 51 L.Ed. (U.S.) 738; U. S. v. Cal. & Or. Land Co., 48 L.Ed. (U.S.) 476; Brennan v. Berlin &c. Co., 42 A. 625 (Conn.); Trainor v. Mverick L. & F. Co., 139 N.W. 666 (Neb.); Lamb v. McConkey, 40 N.W. 77 (Iowa); Gregory v. Woodworth, 77 N.W. 837 (Iowa); Wapello &c. Bank v. Cotton, 122 N.W. 149 (Iowa); Brechlin v. Night Hawk M. Co., 94 P. 928 (Wash.); Straw v. Ill. Central Ry. Co., 18 So. 847 (Miss.); Ruckman v. Union Ry., 78 P. 748 (Or.); Reckless v. Pearson, 26 N.E. 478 (Ind.); Lockart v. Leads, 76 P. 312 (N. M.); McLaughlin v. Doane, 19 P. 853 (Kan.); Martin v. Roney, 41 O. St. 141 (Ohio); Schroers v. Fisk, 16 P. 285 (Colo.); Breeze Co. Trans. v. Haley, 18 P. 551 (Colo.); Smith v. Cowell, 92 P. 20 (Colo.); Anderson v. West Co. St. R. Co., 65 N.E. 717 (Ill.); Ordway v. Boston Ry. Co., 45 A. 243 (N. H.); Porter v. Fraleigh, 49 N.E. 863 (Ind.); Greene v. Central &c. Ry. Co., 38 N.E. 360 (Ga.); Shaw v. Laurel &c. Ry. Co., 45 So. 878 (Miss.); Wecthersby v. Pearl &c. Co., 41 So. 65 (Miss.); Prince v. Gosnell, 149 P. 1162 (Okl.) The case at bar is clearly an attempt to escape the legal consequences of a petition in the federal court showing that no cause of action ever existed in favor of plaintiff; the decision of the federal court was founded on the ultimate facts as pleaded by plaintiff and not upon omissions or defects of the pleadings, plaintiff having stood on his petition in the federal court, a judgment was entered on his res judicata. It is immaterial whether the judgment is right or wrong so long as it is unreversed. (Price v. Bonnifield, 2 Wyo. 80.) The joinder of Murphy as a defendant in this case does not alter the situation, as he is a servant of the company and stands in privity with it; the rule is that a judgment exonerating the master also inures to the benefit of the servant. (24 E. & Am. Ency. Law (2nd Ed.) 752; 23 Cyc. 1265.)

F. B. Reynolds, in reply.

The federal court merely held that the facts there pleaded did not constitute actionable negligence; that court did not have before it the question as to the defective turntable, insufficient lighting facilities and the neglect of the employer to warn plaintiff of danger; these matters were not adjudicated there. Price v. Bonnifield is not in point; the facts in that case are unlike the case at bar. Graham v. Culver also differs on the facts in that the judgment covered all issues in the case. An examination of the facts involved in Colum v. Webster Mfg. Co. and Northern P. Ry. Co. v. Slaght are not similar to the case at bar; there is a distinction between the effect of a judgment as a bar against the prosecution of a second action for the same claim or demand. (Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; New Orleans v. Citizens Bank, 167 U.S. 397, 42 L.Ed. 210, 17 S.Ct. 905; Southern P. R. Co. v. United States, 166 U.S. 1, 42 L.Ed. 355, 18 S.Ct. 18; Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 50 L.Ed. 477, 26 S.Ct. 252; Deposit Bank v. Frankfort, 191 U.S. 499, 48 L.Ed. 276, 24 S.Ct. 154.) Appellant is sustained by Gould v. Evansville &c. R. Co., 91 U.S. 526; Wiggins Ferry Co. v. Ohio & M. Co., 142 U.S. 396. A careful review of the cases cited by defendants in error will show that in all of them the facts are dissimilar to the facts in the case at bar; merely because a petition may not state facts sufficient to constitute a cause of action, is no reason for assuming that a cause of action does not exist, which, if properly expressed, will withstand objection by demurrer; hence, merely because the federal court found that the petition there did not state a cause of action it does not follow that a cause of action may not be expressed and being so expressed is sufficient to support a trial upon the merits of the subject matter.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error brought this action against the defendants in error to recover damages on account of a personal injury alleged to have been caused by the negligence of defendants. The defendants pleaded former adjudication, and it was stipulated by and between the parties that the questions whether or not the cause of action set forth in the second amended petition in the former action is the same as the cause of action set forth in the petition in this case, and whether or not the judgment in the former case was on the merits, should be submitted to the court and should be determined upon a consideration of the petition in the present case, the second amended petition in the former case the demurrer thereto and the judgment rendered upon sustaining said demurrer. The matters were submitted to the court upon the motions of defendants for...