E. E. Souther Iron Co. v. Woodruff Realty Co.

• Decision Date: 03 June 1913
• Citation: 158 S.W. 69
• Parties: E. E. SOUTHER IRON CO. v. WOODRUFF REALTY CO.
• Court: Missouri Court of Appeals

158 S.W. 69

E. E. SOUTHER IRON CO. v. WOODRUFF REALTY CO.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

1. JUDGMENT (§ 707) — CONCLUSIVENESS — PERSONS CONCLUDED.

Plaintiff, an iron company, agreed to occupy a building to be erected by the defendant corporation, and to facilitate the work took out the permit in its own name and nominally assumed direction. An employé working on the building was injured, and recovered from plaintiff on the theory that it was his master; the defendant not being a party to the action. Held, that the adjudication was not conclusive as between plaintiff and defendant, so as to preclude plaintiff from recovering money paid in satisfying the judgment, for only those parties are concluded between whom the matter in issue in the second suit was adjudicated, and here defendant was not even a party and there was no controversy between it and plaintiff.

2. JUDGMENT (§ 634) — CONCLUSIVENESS — "RES JUDICATA."

"Res judicata" is a doctrine of peace, which is not to be applied to a denial of justice, or to deprive a party of a righteous defense.

3. INDEMNITY (§ 13) — IMPLIED CONTRACTS.

Where plaintiff agreed to lease a building to be erected by defendant and to facilitate the work took out the building permit in its own name making payment therefor but having no actual direction of the work, although nominally the principal, there is an implied contract on the part of defendant, the real builder, to reimburse plaintiff for the payment of money expended in satisfying judgment recovered against plaintiff by one of defendant's employés on the theory that plaintiff was the master, for defendant, having accepted the benefit of plaintiff's acts, cannot now question plaintiff's authority, and a promise to pay is implied.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by the E. E. Souther Iron Company against the Woodruff Realty Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Rodgers & Koerner, of St. Louis, for appellant. Percy Werner and Everett W. Pattison, both of St. Louis, for respondent.

REYNOLDS, P. J.

One Joseph Kirn instituted an action against the E. E. Souther Iron Company, appellant here, referred to hereafter as the Iron Company, to recover damages for personal injuries sustained by him while engaged in working upon a building which Kirn alleged was being erected by the Iron Company. Kirn recovered and the Iron Company appealed from that judgment to our court where the judgment of the circuit court was affirmed. See Kirn v. E. E. Souther Iron Company, 146 Mo. App. 451, 124 S. W. 45. It is sufficient to refer to the report of that case for the facts and matters there in issue, only adding that in that case the Iron Company contended that the building was not being erected by it but by the Woodruff Realty Company, hereafter referred to as the Realty Company, the respondent in this present case. The Realty Company did not appear and was not a party to that case. Upon the affirmance of the judgment of the circuit court in favor of Kirn by our court, the Iron Company, having paid off the judgment, instituted the present action against the Realty Company to recover from the latter the amount paid on the judgment, as well as the costs and expenditures made by the Iron Company in connection with the above referred to litigation.

As the cause was submitted to the trial court upon an agreed statement of facts, substantially following the averments of the petition, it will not be necessary to set out the petition at length. If it becomes important as to any matters before us, we will set out such parts as are necessary.

By the agreed statement it is admitted, among other things, that one Albert G. Souther, since deceased, Frank E. Codding and William M. Scudder undertook to organize a corporation to acquire title to ground and construct thereon office and factory buildings which, "when completed, would be occupied by (the Iron Company) as tenant of the proposed corporation"; that the proposed corporation was duly incorporated according to the laws of this state under the name of Woodruff Realty Company July 27th, 1907, and thereupon Souther, Codding and Scudder were elected as its executive officers for the ensuing year, which offices they filled until the month of July, 1908, when Souther died, and that during all of that time they were the executive officers of the Iron Company; that in the months of May, June and July, 1907, Souther and Codding, "acting for said proposed corporation," arranged for the purchase of ground in St. Louis County "and employed one Charles B. McCormack to superintend the construction of buildings thereon"; that in order to legally construct the proposed buildings, a permit from the assessor of St. Louis County was necessary and the Realty Company being at that time unincorporated, the Iron Company, "for the accommodation and benefit of said proposed corporation, consented" that the permit be issued in the name of the Iron Company; that on the 9th of July, the assessor of the county issued the permit in the name of the Iron Company and thereupon the work of construction was begun in that month and continued until about March, 1908, when the building was completed. It is further agreed that McCormack and a foreman under him, "acting for the defendant herein, had charge of and superintended the construction of the buildings," and that the Iron Company at various times during the work of construction and prior to the month of February, 1908, "for and on behalf of" the Realty Company, paid wages of workmen engaged therein and that in the month of January, 1908, plaintiff, the Iron Company; moved its offices and factory to the premises mentioned and took possession of a portion thereof as the tenant of the defendant Realty Company. The institution by Kirn of the action above referred to against the Iron Company; the rendition of the judgment for $1,335 and costs; the appeal; the affirmation of the judgment and that in defending the action the Iron Company had necessarily been required to pay out and did pay out the sum of $388.13 for attorney's fees and expenses, which sum it is admitted was reasonable in the premises; that on the 12th of January, 1910, plaintiff here satisfied the Kirn judgment, in so doing paying out the sum of $1,520.21, being the amount of the judgment with interest and costs, and that Codding, Souther and Scudder had actual notice of the Kirn suit and of all the proceedings therein, are all admitted. It was further agreed that the entire record of the Kirn cause, including the bill of exceptions setting out the testimony and the instructions, as well as the briefs of counsel in that cause in our court, should be considered in evidence, "with the exception and understanding that any conflict in the testimony and the fact involved therein may be determined by the court in the present case upon a reading of all the testimony so conflicting." It was further stipulated that on the 29th of July, 1907, the Realty Company acquired title to the ground on which the buildings were constructed and that "said work of construction was, in all its stages, in the sole charge of the defendant herein (Realty Company) its officers, servants and agents, and plaintiff (the Iron Company) never and, nor did any person for it ever have, any control over said McCormack, said foreman, or said Kirn, or either of them, or said work of construction or any part of same; that all the services rendered by plaintiff (the Iron Company) herein for the benefit of defendant (the Realty Company) herein, as aforesaid, were gratuitous." Judgment was demanded in the petition for $1,908.34, with interest from the 12th of January, 1910, and for costs.

The answer, after a general denial, pleads the judgment in favor of Kirn and against the Iron Company before mentioned in bar of the present action as against it, averring that in that action the cause was submitted to the jury on the identical issue raised by the amended petition in this cause; that instructions were given by the trial court both on behalf of Kirn, the plaintiff in that suit, and the Iron Company, defendant therein, upon the issue of whether the party liable for the injury to said Kirn was the Iron Company or the Realty Company; that an instruction was given on behalf of the plaintiff Kirn, to the effect that if the jury in that cause believed from the evidence that Kirn and the foreman over him, by whose negligence he alleged that he had been injured, were employed by the defendant in that cause, the Iron Company, plaintiff here, and if the jury believed that Kirn was injured by the negligence of the foreman, their verdict should be for Kirn, and that an instruction was given in behalf of the defendant in that cause, plaintiff here, to the effect that if the jury should find and believe that the building about which Kirn was working at the time of his injuries, was being erected for and under contract with the Woodruff Realty Company, the defendant in this cause, then their verdict must be in favor of the Iron Company, defendant in that cause and plaintiff here. (These facts are covered by the agreed statement.) The defendant further answering avers that the verdict of the jury in that cause, under the pleadings in the cause and under the above mentioned instructions, was a finding that Kirn and his foreman were in the employ of the Iron Company and not of the Realty Company and that the building about which Kirn was working at the time of his injuries was being erected for and under contract with the Iron Company, and not for and under contract with the Realty Company, defendant herein. "Wherefore this defendant says that the matter in issue in this cause has been in the said former action fully and conclusively adjudicated against plaintiff herein."

A general denial by way of reply was filed to this.

As stated, the cause...