Ormsby v. A. B. C. Fireproof Warehouse Co.
Decision Date | 06 July 1926 |
Citation | 288 S.W. 959,221 Mo.App. 779 |
Parties | A. B. ORMSBY, APPELLANT, v. A. B. C. FIREPROOF WAREHOUSE CO., RESPONDENT. [*] |
Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.
REVERSED AND REMANDED.
Judgment reversed and remanded.
Marcy K. Brown, Jr., for appellant.
William G. Holt and J. K. Cubbison for respondent.
Trimble, P. J., absent.
The petition prays for $ 1500 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 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.
There was an appeal from the judgment in the first suit (see Ormsby v. A. B. C. Fireproof Warehouse Co., 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.
We think there is no question but that plaintiff's contention is well taken. The law in reference to a situation of this kind is well stated in Harvest King Distilling Co. v. American Express Co., 192 Mo.App. 106 110, 111, 179 S.W. 806, where the court said:
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