Muntz v. Algiers & G. St. Ry. Co.

• Decision Date: 15 January 1906
• Docket Number: 15,858
• Citation: 40 So. 688,116 La. 236
• Parties: MUNTZ v. ALGIERS & G. ST. RY. CO. et al
• Court: Louisiana Supreme Court

40 So. 688

116 La. 236

MUNTZ v. ALGIERS & G. ST. RY. CO. et al

No. 15,858

Supreme Court of Louisiana

January 15, 1906

Rehearing Denied February 26, 1906.

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Action by George Muntz against the Algiers & Gretna Street Railway Company and others. Judgment for plaintiff, and defendants appeal. Reversed, and suit dismissed.

Frank Edward Rainold (McCloskey & Benedict, of counsel), for appellant Algiers & G. Ry. Co. Alfred Elias Billings and Rufus Edward Foster, for other appellants.

P. F. &amp W. J. Hennessey, for appellee.

OPINION

NICHOLLS J.

Statement of the Case.

This case, under differing situations, has been before us three times; first appearing as Muntz v. A. & G. Ry. Co. et al., reported in 111 La. 423, 35 So. 624, 64 L.R.A. 222, 100 Am. St. Rep. 495, next as Muntz v. The Algiers & Gretna Ry. Co., 114 La. 437, 38 So. 410, and lastly as Muntz v. Jefferson Ry. Co. et al., 114 La. 860, 38 So. 586.

In the first suit the plaintiff sued the Algiers & Gretna Railway Company and the Jefferson Railway Company in solido in the civil district court for the parish of Orleans, seeking to recover the sum of $ 15,000 in damages for the death of his minor daughter, who, he alleged, was knocked down and run over by a car through the fault and negligence of the driver of the car then being run and operated by the employes of the Jefferson Railway Company. The latter company excepted to the jurisdiction of the civil district court on the ground that the accident occurred in the parish of Jefferson, the domicile of the company. The exception was sustained, and the suit, as to exceptor, was dismissed. Thereafter the plaintiff brought the same suit on the same cause of action for the same amount against the Jefferson Railway Company in the district court for the parish of Jefferson.

That case was finally brought to trial there on the merits, and judgment rendered therein in favor of the defendant. That judgment became final, not having been appealed. In the original suit, the Algiers & Gretna Company excepted that it was not responsible for the accident on the ground that it had leased out its road, that the accident occurred while the road was being operated by the lessee, and that it was not itself responsible for the acts of negligence of the lessee or its employes. That particular issue was tried by consent. The exception was sustained by the civil district court, and plaintiff's suit dismissed. Plaintiff appealed, and on appeal the judgment was reversed and the case remanded. The syllabus of the case on appeal declared "that a railroad corporation was liable for injuries caused by the wrongful or negligent operation of the cars upon its road, whether operated by itself or another corporation to which it had leased it."

On the remanding of the case the Algiers & Gretna Company filed a general denial. It set up de novo on the merits that, if there was liability to the plaintiff in the premises, it was not itself liable for it, as the injury would have been occasioned in fact by the fault and negligence of the lessee. It set out the fact of the lease by it of the road, and of the lessee having by contract bound itself to run said road entirely at its own expense and to pay all damages which might be occasioned by the running on said road or by the condition of the tracks, and defend all suits that might be brought against said railroad. It asserted its right to call the lessee in warranty. It prayed that it be made a party to the suit as warrantor, and, in the event judgment should be rendered against it, it prayed for a corresponding judgment against the lessee.

Shortly after this the Algiers & Gretna Company, reciting the fact that the suit of the plaintiff in the district court for Jefferson against the Jefferson Railway Company had been sent to trial and had terminated in a final judgment in favor of that defendant and against the plaintiff, pleaded that judgment as res judicata and as an absolute bar to the prosecution of the claim of the plaintiff against itself. The exception of res judicata pleaded by defendant was overruled.

The lessee excepted to plaintiff's demand and to the right of the defendant to call it in warranty, and pleaded as res judicata the final judgment in its favor and against the plaintiff which had been rendered by the district court of Jefferson parish. The court sustained the lessee's exception of no cause of action to plaintiff's petition and to the call in warranty, and the call in warranty was, as to the lessee, dismissed. The Algiers & Gretna Company appealed. On appeal, this court decreed that the exception of no cause of action should have been overruled, and remanded the cause for further proceedings.

The lessees appeared and answered plaintiff's demand and defendant's call in warranty. They pleaded the general issue. They denied that either they or the Algiers & Gretna Railway Company were liable and (contingently) pleaded contributory negligence on the part of the child who was killed. They recited the final judgment rendered in their favor and against the plaintiff by the district court of Jefferson in the suit against themselves, and pleaded the same as res judicata and a judicial estoppel as to all claims of plaintiff against them or the Algiers & Gretna Company, which it declared was in privity with it by reason of the contract of warranty entered into. The case went to trial in the civil district court.

In his charge to the jury the district judge said:

"It has been held by the Supreme Court in this same case that the Algiers & Gretna Company are responsible if by any fault of the employes of their lessee, the Jefferson Railway Company this damage was occasioned. That has been decided. It has also been decided by the Supreme Court in this very case that the lessees are liable in warranty for any damages which may have occurred under the same conditions. Therefore I charge you, gentlemen of the jury, that if you find that a suit has been instituted by this plaintiff, father of the child, in the court of the parish of Jefferson, against the Jefferson Railway Company, and that the judgment in that case is now final in defendant's favor, your duty is to stop your investigation and to go no further, but to return a verdict in favor of the defendant. It would be an idle piece of business to disregard that judgment, whether right or wrong if it now be final. You have no appellate powers over that court and I have no appellate powers over the district court of the parish of Jefferson. If any error was committed by the judge of that parish, an appeal should have been taken to the Supreme Court of the state to have those errors corrected. If you find that a judgment has been rendered by that court, a judgment which is now final upon this very controversy, your duty is to end your investigations right there and return your verdict in favor of the defendant. I will read you the law upon that subject. It is article No. 2286 of the Civil Code. 'The authority of the thing adjudged' -- we call it in law 'res judicata'; it is the Latin of that term -- 'takes place only with respect to what was the object of that judgment. The thing demanded must be the same.' You take that record to your jury room, and you must be satisfied from it that the thing demanded in that case, in the district court, in the parish of Jefferson is the same as the demand made here. The thing demanded must be the same. The demand must be founded on the same cause for action. The cause of action here is the negligence of this Jefferson Company in running over this child and taking its...