Sawyer v. City Of Norfolk

• Decision Date: 15 March 1923
• Citation: 116 S.E. 245
• Parties: SAWYER . v. CITY OF NORFOLK et al.
• Court: Virginia Supreme Court

116 S.E. 245

SAWYER .

v.CITY OF NORFOLK et al.

Supreme Court of Appeals of Virginia.

March 15, 1923.

Error to Circuit Court of City of Norfolk.

Action by G. J. Sawyer against the City of Norfolk and the Furitan Restaurant. A judgment was entered, dismissing as to the City, and in favor of the Puritan Restaurant,

and plaintiff brings error. Affirmed..

John N Sebreli, Jr., of Norfolk, for plaintiff In error.

R. W. Peatross and Jas. G. Martin, both of Norfolk, for defendants in error.

PRENTIS, J. The plaintiff in error, G. J. Sawyer, sued the city of Norfolk and a copartnership trading as Puritan Restaurant. The city of Norfolk demurred to the notice, and tiled a plea in bar of the action. The questions thereby raised were determined in favor of the city, and it was dismissed as a defendant. Thereupon the case was submitted upon the merits to the judge of the trial court, who, after hearing the evidence, entered a judgment in favor of the defendant, the Puritan Restaurant.

[1 j The plaintiff in substance alleged that, while walking along Granby street in the city of Norfolk, a screen door at the entrance of the place of business of the Puritan Restaurant was opened violently by some one emerging from the restaurant; that these doors extended 23 inches over the sidewalk; and that he was thereby thrown to the ground and seriously injured. The defendants took issue upon all of the allegations of the complaint, and introduced evidence in direct conflict with the unsupported testimony of the plaintiff, and upon the issues of fact thus raised the judgment was entered. It may be remarked in passing that this conclusion is not surprising, when it is remembered that his fall took place upon one of the most frequented streets in the city of Norfolk, and that no one else was introduced to show that the door struck him, or that any one saw him fall. It is evident, then, that this court cannot disturb the judgment in favor of the Puritan Restaurant, for it is amply supported by the evidence. Code, § 6363.

The other errors assigned relate to the city of Norfolk, and the judgment of the court in sustaining its demurrer and plea in bar. This raises quite an interesting question, of first impression in this state, as to the effect of that clause in the charter of the city which provides:

"That no action shall be maintained against the said city for an injury to any person or property alleged to have been sustained by reason of the negligence of the city, or of an officer', agent or employee thereof, unless a written statement, verified by the oath of the claimant, his agent or attorney, of the nature of the claim and of the time and place at which the injury is alleged to have occurred or been received, shall have been filed with the city attorney of the said city within thirty days after such cause of action shall have accrued."

As there is another case on the docket of this court which involves an analogous question, and in view of the fact that in no event, since this case has been decided upon its merits against the plaintiff", can there be a recovery, the question has become immaterial here, and we prefer to defer its consideration until the other case referred to has been submitted.

[21 The precise effect of a judgment on the merits, in favor of a party charged withnegligence, on the liability of a codefendant for the same act of negligence, appears never to have been raised in this jurisdiction. It is closely related to the question of res adjudicata, and is governed by the same principle. Where there has been litigation which has in fact determined the point in controversy, and there has been a final judgment, that judgment is conclusive. Where the subject-matter is identical, and the evidence is of necessity the...