Mckee v. Producers' & Refiners' Corp.

• Decision Date: 19 February 1935
• Docket Number: Case Number: 23552
• Parties: McKEE v. PRODUCERS' & REFINERS' CORPORATION et al.
• Court: Oklahoma Supreme Court

1935 OK 160

41 P.2d 466

170 Okla. 559

McKEE v. PRODUCERS' & REFINERS' CORPORATION et al.

Case Number: 23552

Supreme Court of Oklahoma

Decided: February 19, 1935

Syllabus

¶0 1. Appeal and Error -- Assignment of Error not Supported in Brief by Argument or Citation of Authorities Waived.

An assignment of error not supported in the brief by argument or citation of authorities is waived.

2. Judgment -- Res Judicata -- Identity of Parties and Subject-Matter.

It is not necessary to the application of the doctrine of res adjudicata that the parties to the second suit occupied the same relative positions in the former suit; nor does the fact that third parties were present in the former or second case prevent the doctrine from applying, provided they were proper parties and that the questions raised in the second were common to both suits.

3. Same -- Rule Permitting Successive Actions for Injuries Caused by Abatable Nuisance not Inconsistent With Estoppel by Judgment.

Rule permitting successive actions on recurring injuries caused by an abatable nuisance is a rule of the law of damages and has no relation to the question of whether a tort has in fact been committed.

4. Judgment -- Doctrines of Res Judicata and Estoppel by Judgment Distinguished.

Distinction between doctrines of res adjudicata and estoppel by judgment is that where the two causes of action are the same the first judgment is a complete bar to the second action, but where the two causes of action are different the parties are estopped by judgment to deny only those matters which are common to both suits; the former is the doctrine of res adjudicata, the latter is estoppel by judgment.

5. Same -- Second Action for Damages From Abatable Nuisance --Conclusiveness of Judgment in Former Action as to Liability of Defendant.

In a second action for damages from a continuing and abatable nuisance, the judgment in a former action for damages from the same nuisance is conclusive as to the liability or nonliability of defendant, unless it be shown that there has occurred in the alleged nuisance a material and substantial change affecting the result.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by W. R. McKee, for whom Cora McKee, executrix of the estate of W. R. McKee, deceased, was substituted, against Producers' & Refiners' Corporation and another to recover damages to land on account of an alleged nuisance. From a judgment for defendants, plaintiff appeals. Affirmed.

Yancey, Spillers & Fist and E. M. Calkin, all of Tulsa, for plaintiff in error.

West, Gibson, Sherman, Davidson & Hull, of Tulsa, and P. C. Spencer and W. H. McBrayer, both of Independence, Kan., for defendant in error Producers' & Refiners' Corporation.

J. W. Jamison, of St. Louis, Mo., Searcy & Underwood, of Tulsa, and Cruce & Satterfield and W. T. Stratton, all of Oklahoma City, for defendant in error St. Louis-San Francisco Ry. Co.

PHELPS, Justice.

¶1 W. R. McKee (husband of plaintiff in error, in whose name this action was revived) sued the Producers' & Refiners' Corporation and the St. Louis-San Francisco Railway Company (hereinafter referred to as Producers and Frisco, respectively) to recover for injury to his land, which he alleged was caused by the defendants in elevating their lands immediately adjoining plaintiff's land, thereby impounding both their own and plaintiff's surface waters thereon. At the conclusion of the evidence the court directed a verdict for the defendant Producers on the ground that the question of liability was res adjudicata. The jury returned a verdict for the defendant Frisco. The parties will be referred to as they appeared in the lower court. From the order directing a verdict for the Producers, and overruling his motion for new trial as to the Frisco, plaintiff appeals.

¶2 Plaintiff filed his first suit on November 3, 1928, in the district court of Tulsa county, against the Producers and the Prairie Oil & Gas Company. It was removed to the federal court, dismissed as to the Prairie Oil & Gas Company, and the issues tried between plaintiff and Producers, resulting in a verdict and judgment for the producers on July 11, 1929. Plaintiff appealed to the Circuit Court of Appeals, where the judgment was affirmed, same being McKee v. Producers' & Refiners' Corporation, 46 F. (2d) 36. In that action plaintiff sought damages allegedly sustained by this same elevation, or dam, occurring between November 1, 1926, and November 3, 1928. He also sought to have it enjoined as a private nuisance.

¶3 The petition in the present action, filed November 5, 1930, contains substantially the same allegations, except that it (1) does not ask for injunction, and (2) seeks damages sustained between May 1, 1928, and November 5, 1930. During the trial plaintiff's attorney stated that on account of the statute of limitations he sought no damages accruing prior to November 5, 1928.

¶4 As against the defendant Frisco, plaintiff complains that the action of the trial court in sustaining the Producers' motion for a directed verdict "naturally influenced the jury against the plaintiff and in favor of the Frisco, thereby prejudicing plaintiff's rights." Plaintiff waived this assignment by failing to support it with argument or citation of authorities. Harrelson et al. v. Brown et al., 131 Okl. 267, 268 P. 731; Nolan v. Schaetzel et al., 145 Okl. 231, 292 P. 353; Mills v. Lester, decided October 23, 1934, 169 Okl. ---, 37 P. (2d) 261, not yet reported [in State report].

¶5 In questioning the correctness of the directed verdict, plaintiff brings to our attention the following principles: (1) If a nuisance is continuing and abatable, the plaintiff may bring successive actions, recovering in each the damages suffered between the dates of the actions; (2) to sustain a plea of res adjudicata there must be the same subject-matter, the same parties, the same issues relating to the same subject-matter, and the capacity of the parties must be the same as to the subject-matter and the issues, and the burden of establishing these facts rests upon the party who alleges a former adjudication.

¶6 Both of these principles have repeatedly been approved by this court. The point here is that this is a proper case for the application of No. 2, which renders impossible the application of No. 1. No. 1 is predicated on the existence of a nuisance. If no nuisance exists, then no right to bring successive actions exists. If it has been judicially determined that no nuisance exists, then, in successive actions thereon between the same parties in the same situation, it doesn't exist, unless plaintiff proves some such material and substantial change in the physical characteristics of the alleged nuisance as to make a liability out of what formerly was adjudged to not be a liability. Similarly, if the former action had determined the existence of a nuisance, and the evidence in the present action reflected no material and substantial change in the physical characteristics of the adjudged nuisance, then that dispute would be out of the case and under proper pleadings it would be incumbent upon the plaintiff to prove only his damages. So the rule works both ways, subject to great care in its application. 15 R. C. L. 956; Woodworth v. Town of Hennessey, 32 Okl. 267, 122 P. 224.

¶7 Plaintiff contends that the principle of res adjudicata requiring identity of parties is not satisfied in this case, because the Frisco was not a party to the former suit. But the principle is not applied here in behalf of the Frisco; it is applied as between the plaintiff and Producers, both of whom were parties to the former suit. We have held that even though the parties to the present suit were not in antagonistic positions in the former suit, that fact will not deprive the former judgment of its force and effect, provided they were proper parties to the first suit and that the questions now raised were or could have been asserted therein. City of El Reno v. Cleveland-Trinidad Paving Co., 25 Okl. 648, 107 P. 163, 27 L. R. A. (N. S.) 650; Woodworth v. Town of Hennessey, 32 Okl. 267, 122 P. 224, 226.

¶8 Plaintiff also contends that, since the present action is for the recovery of damages sustained between the dates of the prior suit and the present one, the instant case constitutes a different cause of action and for that further reason the doctrine of res adjudicata is not applicable. We see no difference except in the relief demanded; further, it is immaterial in this case whether the causes of action are different, the properly applicable principle being estoppel by judgment rather than that of res adjudicata.

¶9 The facts upon which the plaintiff relied to establish the liability of the defendant Producers were the same as in the former suit, the pleadings were substantially identical, and both the pleadings and the evidence reflect that plaintiff proceeded from the outset on the theory that he could relitigate the question of defendant's liability. In fact, the petition as drawn reached back into the period of time covered by the petition in the former case, in that in this case plaintiff sought damages accruing since May 1, 1928, whereas the petition in the former case was filed on November 3, 1928, a fact indicating that plaintiff did not rely on any change in the physical characteristics of the alleged nuisance as taking the instant case away from the operation of the former judgment. Nor did the plaintiff, in the trial of the case, offer any evidence tending to show a material and substantial change in the nature of the embankment, dam, or elevation occurring since the filing of the petition in the first suit. In the rule...