Jungeblut v. Maris
| Decision Date | 06 March 1939 |
| Citation | 130 S.W.2d 681,234 Mo.App. 288 |
| Parties | ALVIN H. JUNGEBLUT, RESPONDENT, v. ALBERT J. MARIS, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Allen C. Southern, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Fred Bellemere, Eugene R. Brouse and Roy W. Rucker for appellant.
(1) Where separate causes of action grow out of the same transaction cross-actions may be maintained and neither will bar the other. 34 C. J. 867. In order for a prior judgment to be conclusive of an issue in a second suit a showing must be made that the precise question was raised and determined in the former suit. In case of uncertainty the whole subject matter in the second suit will be opened to new contention. Perry v. First National Bank, 91 S.W.2d 78, 80; Johnson v. Johnson, 56 S.W.2d 1069, 1072. (2) The plaintiff having made no showing of any negligence on the part of defendant, defendant's demurrer should have been sustained. (3) The court should have allowed defendant to file his amended answer to plaintiff's amended petition. Chap. V, Art. 6, R. S. Mo. 1929.
Calvin & Kimbrell for respondent.
(1) The trial court did not hold, that the cause of action alleged in cause No. 421523, was the same as the cause of action alleged by the respondent in the case at bar; that all issues of negligence, between the parties, in the instant case, had been adjudicated in the prior action. (2) The appellant, as plaintiff in cause No. 421523, having, by his petition therein, raised and tendered, for the determination of the jury, in said cause, the issue or issues of fact of the respondent's negligence therein; and, the respondent, as defendant, in said cause, having, by his answer therein raised and tendered, for the determination of the jury, in said cause, the issue or issues of fact of the appellant's negligence therein; and, the judgment, in said cause, having been in favor of the respondent and against the appellant; and, said judgment having become final, the trial court did not err in holding that all issues of fact of the negligence of the appellant and all issues of fact of the negligence of the respondent, as between them had been fully and finally adjudicated, by the judgment in said cause; and, did not err in holding that the only question which should be submitted to the jury, in the cause at bar, was the question as to the amount of damages which the respondent had sustained. In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662; Mo. P. Ry Co. v. Levy, 17 Mo.App. 501; 34 C. J., p. 742, sec. 1154, p. 811, sec. 1231, p. 818, sec. 1236; Browne v. Moran (Mass.), 14 N.E.2d 119; Cotton v. Walker, 164 Miss. 208, 144 So. 45; Winters v. Bisaillon, 153 Ore. 509, 57 P.2d 1095; Freitag v. Renshaw (N.J.), 157 A. 455, 9 N.J. M. 1161; Esper v. Manhattan Transit Co. (N.J.), 169 A. 823, 112 N.J. L. 186; Henderson v. United States Radiator Corp. (C. C. A. 10), 78 F.2d 674; Serpell-Winner-Jordan v. Crete Mills (C. C. A. 8), 51 F.2d 1028; Brooks v. Arkansas-Louisiana Pipe Line Co. (C. C. A. 8), 77 F.2d 965; Beck v. Hill (C. C. A. 10), 91 F.2d 75; Meyer v. Surkin, 262 Ill.App. 83. (3) In an action between the parties--plaintiff and defendant--a question or issue of fact, having been determined by a final judgment in the cause, cannot be again litigated, between the same parties, in a subsequent action; and, such question or issue of fact, having thus been once adjudicated, is, as between the parties, finally and forever determined. (4) The judgment in cause No. 421523, having been entered upon a general verdict, resolved all issues submitted to the jury, for its determination, in favor of the respondent as the prevailing party. 64 C. J., p. 1053, sec. 847; 27 Ruling Case Law, p. 843 et seq.; Winkelman v. Maddox, 119 Mo.App. 658, 95 S.W. 308; National Cash Register Company v. Kay (Mo. App.), 93 S.W.2d 260, l. c. 263; State v. Bliss (Mo.), 99 S.W.2d 71; Flournoy v. Lastrapes, 99 U.S. 406, 25 L.Ed. 406; Serpell-Winner-Jordan v. Crete Mills (C. C. A. 8), 51 F.2d 1028, 80 A. L. R. 716; Atchison, Topeka and Santa Fe Railway Co. v. Osburn, 79 Kan. 348, 100 P. 473; Fidelity and Casualty Company of New York v. Huse and Carleton, 272 Mass. 448, 172 N.E. 590, 72 A. L. R. 1143; Genard v. Hosmer (Mass.), 189 N.E. 46, 91 A. L. R. 543. (5) The testimony adduced upon the trial of the instant cause, and the admissions made thereupon, fully complied with and satisfied the legal requirement as to the necessity of identity of the parties; and, also, fully met and satisfied the legal requirement of the law as to the necessity of a decision on the merits. 34 C. J., p. 576, sec. 1165, p. 774, sec. 1193; Missouri Pacific R. Co. v. American Surety Co., 291 Mo. 92, 236 S.W. 657; Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 10 L.R.A. (N. S.), 140; Danciger v. American Express Company, 192 Mo.App. 106, 179 S.W. 806; Wilson and Company, Inc., v. Hartford Fire Insurance Co., 300 Mo. 1, 254 S.W. 266; Johnson v. United Ry. Co., 243 Mo. 278, 147 S.W. 1077; Couch v. Harp, 201 Mo. 457, 100 S.W. 9; Swing v. Karges Furniture Co., 150 Mo.App. 574, 131 S.W. 153. (6) The cause, No. 421523, having been brought to trial upon the pleadings of the parties thereto in which the issues involved therein were definitely alleged and defined; and, said cause having been heard and tried upon the evidence submitted, pro and con, by the parties thereto; and, the same having been decided by the verdict of the jury therein, the judgment rendered thereon, and in pursuance thereof, was a judgment upon the merits. 34 C. J., p. 775, sec. 1194. (7) The pleadings on behalf of the parties in cause No. 421523, and the instructions of the court which were given therein, clearly showed what issues were submitted and determined in said cause. However, it must be presumed that the evidence introduced upon the trial of said cause, was within the pleadings, and was sufficient to warrant the court in submitting the cause upon the instructions given therein. (8) The court did not err in refusing to sustain the defendant's demurrer offered at the close of all the testimony, neither did it err in refusing to instruct the jury that, under the pleadings, the law and the evidence, the plaintiff was not entitled to recover. (9) Neither did the court err in refusing to permit the defendant to file an amended answer to the plaintiff's amended petition in this cause. (10) The record in the case at bar embodying the specific allegations of negligence in the pleadings of the respective parties in Maris v. Jungeblut, and the instructions given by the respective parties upon the issues of negligence raised by the pleadings, affirmatively, and with precision, shows the issues of negligence litigated and determined in the prior action.
Plaintiff's petition alleged that on April 17, 1933, while in the exercise of the highest degree of care he drove his automobile in a southerly direction upon Brooklyn Avenue, a north and south street in the city of Kansas City, Missouri, and into and across Thirty-eighth Street, an east and west street in said city; that at the same time defendant carelessly and negligently drove his automobile in a westerly direction upon said Thirty-eighth street and in close proximity to the intersection of Brooklyn Avenue, in consequence of which the automobiles collided and injured plaintiff. The petition further alleged numerous specific acts of negligence on the part of defendant, among which was the violation of an ordinance of Kansas City. Other allegations in the petition concerning the legal effect of a judgment rendered in a cause, hereinafter called the former action, in which the present defendant was plaintiff and the present plaintiff was defendant, will be stated in our discussion of the single question brought here on this appeal, namely, whether or not the judgment in the former action was res judicata of all issues of negligence of the parties in the case at bar.
The answer, filed in due time, was a general denial.
Trial to court and jury resulted in verdict and judgment for plaintiff for $ 5,000. The defendant has appealed.
The defendant in the present suit, after the jury was empaneled and before evidence was heard, tendered and requested leave to file an amended answer, which stated a general denial and that plaintiff was guilty of contributory negligence. When the request was made the defendant admitted the pleadings, verdict and judgment in the former action were correctly pleaded in plaintiff's petition in the instant cause. While the court was considering the request the defendant offered in evidence the instruction given to the jury in the former action. The request was denied upon the ground that the issues of negligence of the plaintiff and the negligence of the defendant were adjudicated in the former action and that such issues were at rest. Thereupon plaintiff introduced evidence showing the injuries suffered by him in the collision, but did not offer any evidence tending to show that he exercised the highest degree of care or that defendant was negligent.
The defendant at the close of the evidence requested the court to direct verdict in his favor. The request was refused. Of course the defendant was entitled to the verdict unless the judgment in the former action was res judicata of all issues of fact concerning the negligence of the parties hereto.
The petition in the former action alleged the collision occurred upon the intersection of 38th street and Brooklyn Avenue and charged the collision was caused by the negligence of the defendant, in that he failed and neglected to keep a lookout for automobiles passing upon said intersection; negligently...
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