Ormsby v. A.B.C. Fireproof Warehouse Co.

• Decision Date: 06 July 1926
• Docket Number: No. 15715.,15715.
• Citation: 288 S.W. 959
• Parties: ORMSBY v. A. B. C. FIREPROOF WAREHOUSE CO.
• Court: Missouri Court of Appeals

288 S.W. 959

ORMSBY v. A. B. C. FIREPROOF WAREHOUSE CO.

No. 15715.

Kansas City Court of Appeals. Missouri.

July 6, 1926.

Rehearing Denied July 22, 1926.

Certiorari Denied December 14, 1926.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by A. B. Ormsby against the A. B. C. Fireproof Warehouse Company. Judgment for defendant on the pleadings, and plaintiff appeals. Reversed and remanded.

Marcy K. Brown, Jr., of Kansas City, for appellant.

Holt & Cubbison, of Kansas City, for respondent.

BLAND, S.

This is an appeal by plaintiff from the action of the court in sustaining defendant's motion for judgment upon the pleadings. The petition alleges that on and prior to October 25, 1920, plaintiff was the owner and in possession of an automobile and on that day delivered the same to the defendant to be forwarded from Kansas City, Mo., to Los Angeles, Cal.; "that said defendant on said date, for hire, accepted said property and agreed to forward same, as aforesaid, according to plaintiff's instructions"; that on or about October 26, 1920, defendant placed said property in an inclosed freight box car belonging to the Atchison, Topeka & Santa Fe Railway Company, for the purpose of loading it for transportation, and thereafter and on the same day said property was damaged by fire in said box car through the negligence of the defendant, its agents, and employees, while they were preparing the property for shipment; that on October 26, 1920, "* * * and after said property had been damaged by fire, he was the owner of and entitled to the possession of said described property in its damaged condition; and that he has made demand upon defendant for the salvage remaining of said property after said fire, and that defendant has failed and refused to comply with said demand."

The petition prays for $1,500 damages, which was alleged to be the reasonable market value of the damaged property immediately after the fire.

The answer consists of a general denial, and it alleges that plaintiff had carried insurance and that plaintiff had been paid by the insurance company for all loss and damage sustained by reason of the automobile and equipment having been damaged by fire, as alleged in the petition, and in consideration thereof had assigned to such insurance company his claim for such damages and agreed that the insurance company should be subrogated to all rights of action against the defendant for said loss and damage, and that plaintiff had been fully compensated by the insurance company for such loss, and that plaintiff was not the real party in interest in this action.

The answer further alleged in paragraph 4 thereof that on December 4, 1920, plaintiff instituted a suit against the defendant and the railway company, alleging that he delivered to the defendant herein the automobile to be forwarded from Kansas City, Mo., to Los Angeles, Cal., and that defendant herein accepted said property and undertook to deliver the same to the railway company, to be carried by the latter from Kansas City to Los Angeles; that plaintiff alleged that the defendant herein placed said property in an inclosed box car belonging to the railway company for the purpose of loading said property for transportation, and that thereafter, on the 26th day of October, 1920, said property was damaged by fire in said box car through the negligence of the defendant herein, its agents, and employees while they were employed in preparing said property for shipment; that plaintiff alleged that by reason of said fire plaintiff's property was damaged, and he sustained a loss in the sum of $6,858.50, for which sum he asked judgment against the defendants therein; that the defendants therein filed their answer to plaintiff's petition; that the cause coming on for trial, judgment was rendered against the defendants in the sum of $2,200 for the loss and damage sustained by plaintiff, which judgment was paid by the defendant herein; that, "all controversies then existing between said plaintiff and said defendant, by reason of said fire and loss and damage sustained by said plaintiff thereby to his said automobile and equipment, were fully paid and discharged."

The reply admits the matters set up in paragraph 4 of defendant's answer relating to the filing of the former suit and recovery of a judgment in the sum of $2,200 against the defendants in that suit, but alleges that:

"* * * Plaintiff denies that all controversies then existing between said plaintiff and said defendant, by reason of said fire and loss and damage sustained by said plaintiff thereby to his said automobile and equipment, were fully paid and discharged, but that the verdict and judgment in said cause No. 154716 represented only the damage to plaintiff's automobile by subtracting the reasonable market value of said automobile after the damage and after the fire from the reasonable market value of said automobile immediately before the fire.

"Further replying, plaintiff states that said automobile after the fire had a salvage value, as alleged in plaintiff's petition, and that, as alleged in plaintiff's petition, it was the duty of defendant to return to plaintiff said damaged property in its damaged condition, which defendant failed and refused and neglected to do, as alleged in plaintiff's petition herein."

There was an appeal from the judgment in the first suit (see Ormsby v. A. B. C. Fireproof Warehouse Co., 214 Mo. App. 336, 253 S. W. 491).

Plaintiff insists that the court erred in sustaining defendant's motion for judgment on the pleadings. Defendant's argument against this contention is based wholly upon the theory that the judgment in the former suit was res adjudicata of the matters covered by the present suit; that plaintiff is merely attempting to recover more damages in this suit for the same injury that he sued for in the former suit; that he cannot harass the defendant by bringing successive actions for the recovery of damages that he could have recovered in the first suit. Plaintiff claims that the former judgment was for damages to the bailed property, whereas the present suit is for conversion of the same property in its damaged condition, and that the two actions are different; that the instant suit is grounded upon a different wrong or tort; that different issues are presented in the two cases; that the issues in this case could not have been litigated in the former action; that the subject-matter of the two actions is entirely different; that the two torts occurred at different times, the one involved herein occurring subsequently to the one involved in the former suit; that different defenses are involved in the two actions in that no defense in the first suit could be urged in the subsequent one; that different proof is required in the two actions; that the measure of damages in the two is radically different; that for these reasons the judgment in the former suit is not res adjudicata of the matters involved in the present suit....