State Ex Rel. Connellsville By-Prod. Coal Co. v. Cont'l Coal Co..

• Decision Date: 19 May 1936
• Docket Number: (No. 8189)
• Citation: 117 W.Va. 447
• Court: West Virginia Supreme Court
• Parties: State ex rel. Connellsville By-Product Coal Company v. Continental Coal Company et al.

117 W.Va. 447

State ex rel. Connellsville By-Product Coal Company

v.Continental Coal Company et al.

(No. 8189)

Supreme Court of Appeals of West Virginia.

Submitted April 8, 1936.

Decided May 19, 1936.

1. Judgment

For a second action to be a second vexation which the law will forbid, the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character, (2) the same cause of action, and (3) the same object.

2. Judgment

"A judgment concludes not only the technical fact in issue, but also every component fact necessarily involved in. its determination." Rawwolf v. Glass, 184 Pa. 237, 39 Atl. 79, 80.

3. Action

When bonds with different penalties and different sureties relate to the same matter, have the same condition, and are cumulative, the bonds may be regarded as one instrument and the several sureties as co-sureties, bound, however, only in proportion to the penalties of their respective bonds. Under Code 55-8-7, the obligee of such bonds may join all the sureties in one action.

Error to Circuit Court, Marion County.

Action by the State, on the relation of the Connellsville By-Product Coal Company, against the Continental Coal Company and another. To review an adverse judgment, relator brings error.

Affirmed.

Litz and Maxwell, Judges, dissenting.

Frank C. Ha, ymond and Frank Cox, for plaintiff in error.

Amos & Amos and E. M. Showalter, for defendants in error.

Hatcher, President:

This writ involves the judgment of the circuit court in favor of defendants, on the plea of res judicata, of defendant, Continental Coal Company.

This action is in debt, and was instituted in 1931 by the State, suing on behalf of Connellsville By-Product Coal Company against Continental Coal Company and The Fidelity and Casualty Company. The declaration alleges that in 1926, Continental Coal Company secured an injunction against the Connellsville Company and executed an injunction bond for $12,500.00 (surety not mentioned); that subsequently an additional injunction bond of $7,500*00 was executed by the two instant defendants; that later the injunction was dissolved; that the injunction caused the Connellsville Company to sustain damages amounting to $76,356.70, consisting of twenty-five separate items of damages which are listed; and that the defendants, though requested, have refused to pay the plaintiff the sum of $7,500.00.

The plea of res judicata alleges that the plaintiff herein impleaded Continental Coal Company at the November term, 1928, of the circuit court of Marion County, in a certain motion for judgment "to the damage of the plaintiff of $76,35.9.70 for not performing the very same promises, in the said declaration mentioned," and recovered in that proceeding a subsisting judgment for $12,-500.00 against Continental Coal Company. A demurrer to the plea was overruled and the plea was tried before the court. It there appeared that the notice of motion for judgment (named in the plea) was addressed by the instant plaintiff to Continental Coal Company, H. W. Showalter, G. K. Barrickman and F. E. Christopher, and that the notice alleged the granting of the injunction referred to in the instant declaration; the execution of an injunction bond of $12,500.00 (the one for that sum referred to in the declaration) by the four defendants to the notice; the dissolution of the injunction; and damages to plaintiff by the injunction of $76,355.70, composed of the same twenty-five items of damages which are listed in the instant declaration. It further appeared that each item was put in issue generally; that the major items of damages claimed by plaintiff (attorney's fees of $35,000.00 and damages to a mine of $38,921.01) were specially contested; and that a verdict and judgment for $12,500.00 was awarded plaintiff, which with costs was paid by Continental Coal Company.

The conditions of the two bonds are identical. Each bound the several obligors, in case the injunction should be dissolved, to pay all costs incurred and damages sustained by the Connellsville Company, which Continental Coal Company should fail to pay.

The common law rule nemo debet bis vexari pro una et eadem causa, no man shall be twice vexed for one and the same cause, would seem to be its own interpreter; but in order that the rule may be applied with uniform precision, the courts have agreed that certain entities must concur to make a second action a second vexation. The two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character, (2) the same cause of action, and (3) the same object. Collins v. Treat, 108 W. Va. 443, 451, 152 S. E. 205; Freeman on Judgments (5th Ed.), sec. 671; Black on Judgments (2d Ed.), sec. 610. A comparison of the two actions in question discloses that they have (1) the same plaintiff (the State suing on behalf of The Connellsville Company) and the same principal defendant (Continental Coal Company), the one suing and the other defending in each case in the same respective character; (2) the same cause of action, i. e., the failure of Continental Coal Company, upon the dissolution of the injunction, to pay the damages it had occasioned the plaintiff; and (3) the same object, i. e., recovery (pro tanto) upon the same items of damage. It has been said also that a test of a second vexation is whether the same evidence will sustain both actions.

GaMaher v. Moundsville, 34 W. Va. 730, 734, 12 S. E. 859, 26 Am. St. Rep. 942; Paper Co. v. Purdy, 136 App. Div. 189, 120 N. Y. S. 342; Freeman, supra, sec. 687; 34 C. J., subject Judgments, sec. 1226; 15 R. C. L., idem, sec. 439. Identity of evidence herein is conceded by plaintiff. We are mindful that the sums demanded in the two actions are different; but that difference is not material on the question of res judicata since both demands arise from the same alleged damages, a mine exhaustively worked in the first action. Brady v. Parish, 26 La. Ann. 320; New Orleans v. Bank, 167 U. S. 371, 396, 17 S. Ct. 905, 42 L. Ed. 202; Freeman, supra, sec. 683. Neither is the difference in the personnel of the defendants, who are secondarily liable, of importance. "It is not necessary that precisely the same parties were plaintiffs and defendants in the two suits; provided the same subject in controversy, between two or more of the parties, plaintiffs and defendants to the two suits, respectively, has been in the former suit directly in issue and decided." Western Co. v. Cannel Co., 10 W. Va. 250. Accord: Thompson v. Roberts, 24 Howard (U. S.) 233, 241, 16 L. Ed. 648; Jones, Comm. on Ev. (2d Ed.), sec. 1810; 15 R. C. L., subject Judgments, sec. 485. In such case, when a prior adjudication has exempted from further vexation the defendant primarily liable for damages, the benefit of that exemption is extended to a co-defendant secondarily liable., Sawyer V. Norfolk, 136 Va. 66, 116 S. E. 245; Eccles v. Casket Co., 152 Iowa 164, 130 N. WT. 113, Van Fleet, Former Adjudication, sec. 572.

Against the concurring identities, plaintiff takes the following position:

"The two bonds in question are cumulative, covering the same damages, and each bond was liable for the costs and damages incurred, but the sureties thereon being different, two actions were necessary to recover the respective penalties of the bonds. * * * The issue in the first action was upon a different bond, made at a different time by different parties with the penalty in a different amount. No other issue or cause of action arose in the first case. No evidence as to any other bond was or could be considered by the jury. No liability and costs or damages beyond the penalty of the first bond was or could have been considered by the jury and no such liability beyond the penalty of the first bond could have been determined by the jury. No greater sum than $12,500.00 could have been found or considered by the jury in the first action. The jury did not find that there were not costs and damages in excess of $12,500.00, for no such function was legally in the power of the jury." The defendants respond:

'The plea of res judicata does not challenge the right to institute and maintain separate actions. What it does challenge is the right, even under separate or successive bonds, to recover twice for the same identical damages. If the plaintiff in his second suit had stipulated any item of damage which had not been the subject of adjudication in the former suit, there would be no question as to his right to recover on the second bond. But when he has elected to set out in his declaration and bill of particulars the identical items upon which he had recovered judgment, and been paid in the former case, he is estopped by the plea of res judicata, not because successive actions cannot be maintained on successive bonds, but because he cannot recover twice for the same items of damage. * * * All the items were before the jury in the former trial; evidence was submitted in support of each and every item claimed; who can now say what are those items which constituted the basis of the jury's verdict? Who can say but that the jury in passing upon the evidence found the amount of the verdict was the full amount which the plaintiff was entitled to recover?"

We are of opinion that defendant's answer is well made. The position of plaintiff, summarized, is that the cause of each action is the bond; that the two actions differ because the two bonds differ in penalties and sureties; and that joinder of the several sureties in one action is not permissible, making separate actions necessary. That position is unsound, (a) The cause of each action (as already stated) is the failure of Continental Coal Company, upon the dissolution of the injunction, to pay the damages it had occasioned the plaintiff, (b) The differences in the bonds do not make the actions different. The bonds relate to the same matter, have the same condition, and are cumulative. Every surety is...