Montgomery v. Taylor-Green Gas Co., Inc.

• Decision Date: 19 December 1947
• Citation: 306 Ky. 256,206 S.W.2d 919
• Parties: MONTGOMERY v. TAYLOR-GREEN GAS CO., Inc. INDIANA LUMBERMENS MUT. INS. CO. v. SAME. CORBIN v. SAME.
• Court: Kentucky Court of Appeals

206 S.W.2d 919

306 Ky. 256

MONTGOMERY v. TAYLOR-GREEN GAS CO., Inc.

INDIANA LUMBERMENS MUT. INS. CO. v. SAME.

CORBIN v. SAME.

Court of Appeals of Kentucky

December 19, 1947

Appeal from Circuit Court, Taylor County; W. H. Spragens, Judge.

Actions by H. H. Montgomery, by the Indiana Lumbermens Mutual Insurance Company, and by Raymond Corbin against the Taylor-Green Gas Company, Inc., to recover for property damages as result of a gas explosion. From adverse judgments the defendant appeals.

Judgments affirmed.

Abel Harding, of Campbellsville, Vernon Shuffett, of Greensburg, G. J. Rice, of Campbellsville, for appellant.

Fred Faulkner and George O. Bertram, both of Campbellsville, for appellees.

SIMS Chief Justice.

These three cases were tried together and by agreement have been consolidated on appeal and this opinion will dispose of all of them. They arose out of the same explosion which resulted in the case of Taylor-Green Gas Company v. Newcomb, 302 Ky. 564, 195 S.W.2d 307. The facts are fully stated in the Newcomb opinion and we will not repeat them here. However, it will be necessary to make some slight reference to the evidence in this opinion where it differs from that heard on the trial of the Newcomb case. Taylor-Green Gas Company will be referred to hereinafter as the Company.

Newcomb recovered judgment against the Company for $13,675 for personal injuries, which we affirmed in 302 Ky. 564, 195 S.W.2d 307. Previous to the three instant cases coming on for trial, appellants filed replies averring that the issue in the Newcomb case was whether or not the explosion was caused by the Company's negligence in so installing a meter that gas leaked therefrom in such quantities that it ignited and exploded; that the jury in the Newcomb case found the explosion resulted from such negligence on the part of the Company and the judgment entered on that verdict was affirmed in 302 Ky. 564, 195 S.W.2d 307; that appellants' claims for damages arose out of this same explosion and the question of the negligence of the Company is now res judicata and it is estopped to deny its negligence.

The trial judge sustained general demurrers to these pleas of res judicata and the correctness of that ruling is in reality the only question presented on these appeals although it is briefed from several different angles.

The evidence introduced on the trial of the three instant cases appears to be stronger in favor of the Company than that heard on the trial of the Newcomb case in that several witnesses testified they saw the meter tested after the explosion, which test showed it did not leak. Several other witnesses testified that after the explosion a piece of the gas pipe belonging to Montgomery, the owner of the building was removed from under the floor of the structure and it was old, full of holes and was in a dangerous condition.

It is not difficult to conceive how this evidence could influence the jury to tip the scales in favor of the Company and return a different verdict from that found in the Newcomb case. Be that as it may, the rule is that a judgment may not successfully be pleaded as res judicata, or as an estoppel where there is no identity, or at least privity, of parties in the same antagonistic relation. An estoppel must be mutual and cannot apply as against a stranger to a judgment, since one's rights cannot be determined without an opportunity to present his side of the controversy. Sim v. Bishop, 177 Ky. 279, 197 S.W. 625. The opinion of the trial judge, Hon. W. H. Spragens, of the Eleventh District, is so comprehensive and clear that instead of discussing the question further we will adopt what he wrote.

'The grounds for a new trial in this case include the insistence by plaintiffs' counsel that they were entitled to the application of the doctrine of res judicata by reason of the judgment in the Newcomb case, 302 Ky. 564, 195 S.W.2d 307, for personal injuries received as the result of the explosion in question here. This insistence is based on the opinion in Blue Valley Creamery Co. v. Cronimus, 270 Ky. 496, 110 S.W.2d 286. While I am not disposed to criticize that opinion, I am not inclined to extend the principle announced there to the facts of this case.

'The opinion in the Cronimus case, as well as the opinion in the later case of Sherwood v. Huber & Huber Motor Co., 286 Ky. 775, 151 S.W.2d 1007, 135 A.L.R. 263, recognizes the requirement of identity of parties as well as subject matter and mutuality of estoppel by the judgment. The Cronimus case holds that the requirement as to identity of parties may be extended to include persons in privity with the actual parties under certain conditions. There can be no reasonable contention that Raymond Corbin was in privity with Newcomb. I am unable to find anything in the reply and pleas of res judicata showing such relationship between the other plaintiffs and Newcomb. I think it is necessary for both the pleadings and proof to disclose this but if it is sufficient to establish it by evidence alone, I am unable to find anything in...