Stuck v. Town of Beech Grove

• Decision Date: 25 October 1928
• Docket Number: No. 25227.,25227.
• Parties: STUCK et al. v. TOWN OF BEECH GROVE et al.
• Court: Indiana Supreme Court

201 Ind. 66

163 N.E. 483

STUCK et al.

v.TOWN OF BEECH GROVE et al.

No. 25227.

Supreme Court of Indiana.

Oct. 25, 1928.

Appeal from Shelby Circuit Court; H. C. Morrison, Judge.

Suit by Frank Stuck and another against the Town of Beech Grove and others. Judgment for defendants, and plaintiffs appeal. Reversed, with directions.T. Ernest Maholm, of Indianapolis, Cheney & Tolen, of Shelbyville, and Grier M. Shotwell, Fred Bates Johnson, and Earl B. Barnes, all of Indianapolis, for appellants.

Chas. E. Cox, of Indianapolis, for appellees.

MARTIN, J.

Appellants, who are partners doing business as the South Side Motor Coach Company, and who hold a certificate of public convenience and necessity issued by the Public Service Commission of Indiana authorizing them to operate busses over certain routes in Indianapolis and its suburb Beech Grove, including Main street in that suburb, brought this action in the Marion superior court, to enjoin appellees from enforcing two ordinances of the town of Beech Grove, one of which prohibited busses from receiving or discharging passengers at any point on any street upon which was located street car tracks (Main street being the only street within such description) and the other which prohibited busses from operating over any streets except Albany street and Bethel avenue and First street between Albany and Bethel.

Appellees, against whom a temporary injunction was issued, answered in two paragraphs, former adjudication and denial. The cause was taken on a change of venue to the Shelby circuit court, which upon trial found for appellees on all issues. Error is assigned in overruling appellant's motion for a new trial, in which appellants contended that the decision was not sustained by sufficient evidence, was contrary to law, and that the court erred in refusing to admit evidence of facts tending to establish that the ordinances were unreasonable.

It was alleged and proved that Beech Grove has between 3,000 and 3,500 inhabitants, has no police officers other than a town marshal, has only one improved street in good condition running east and west entirely through the town (Main street), which is 60 feet wide between curbs and on which is operated a single track interurban railway, 13 or 14 years old, which runs to Indianapolis, that all the business houses in the town are located on Main street, and that appellants operate inclosed Mack busses, which will carry 25 passengers.

Appellants offered to prove, and the trial court refused to admit in evidence, testimony that Albany street has no berm on either side of its concrete paving; that the pavement thereon is broken and rough and contains chuck holes dangerous to the safety of automobile passengers; that Main street is the only east and west street suitable for carrying automobile traffic; that there are 340 residences south of Main street and 129 residences north of it; that all business rooms on Main street (about 20) are between First and Eighth avenues, these being scattered, and that there are between 40 and 50 vacant lots between said streets; that the street car traffic consists of one car, one way or the other, each 23 minutes, and that the busses ran each 15 minutes during the day and each 30 minutes during the evening; that most of the traffic on Main street occurs in the morning and evening when employees of the Big Four Railroad shops go to and return from work; that neither traffic policemen nor mechanical traffic control devices are in use in the town; that no congestion of traffic ever occurs; that many trucks hauling heavier loads than appellants' busses over Main street are permitted to use the streets freely; that the street or interurban railroad operates busses over Main street using Ford trucks carrying 18 to 20 passengers each, and that the street or interurban cars are very small, old, unpainted and in poor condition, and that the track is rough.

[1] On the issue of former adjudication, appellees introduced a certified copy of the proceedings in a prior suit between the same parties in the Marion superior court, in which the court sustained the appellees' demurrer to the appellants' complaint, and, on appellants' refusal to plead over, rendered judgment against them. An appeal (No. 25230) taken from such judgment is affirmed concurrently with the decision herein. Frank Stuck et al. v. Town of Beech Grove et al. (Ind. Sup. 1928) 163 N. E. 487.

[2][3] In the complaint in that case, the alleged fact of the unreasonableness of the Beech Grove ordinances was not sufficiently pleaded, and the theory of appellants' complaint there was that the ordinances were void for the reason that they encroached on the jurisdiction of the Public Service Commission. An adjudication upon a demurrer operates a res adjudicata, the same as a judgment rendered after the trial of issues joined by a court or jury, Nickless v. Pearson (1891) 126 Ind. 477, 486, 26 N. E. 478;La Porte v. Organ (1892) 5 Ind. App. 369, 370, 371, 32 N. E. 342;Franke v. Franke (1896) 15 Ind. App. 529, 544, 546, 43 N. E. 468; but, where additional facts are pleaded in the subsequent complaint, bringing different questions of fact or law before the court, the judgment in the first action is no bar or estoppel by record to the second, Griffin v. Wallace (1879) 66 Ind. 410, 417, 420;De Sollar v. Hanscome (1895) 158 U. S. 216, 15 S. Ct. 816, 39 L. Ed. 956;Southern Pacific Co. v. Bogert (1919) 250 U. S. 483, 39 S. Ct. 533, 63 L. Ed. 1009; and see Royal Insurance Co. v. Stewart (1921) 190 Ind. 444, 452, 129 N. E. 853. In Troxell v. D., L. & W. R. Co. (1913) 227 U. S. 434, 440, 33 S. Ct. 274, 276, 57 L. Ed. 586, the court said:

“Where the second suit is upon the same cause of action set up in the first suit, an estoppel by judgment arises in respect to every matter offered or received in evidence or which might have been offered to sustain or defeat the claim in controversy; but where the second suit is upon a different claim or demand, the prior judgment operates as an estoppel only as to matters in issue or points controverted and actually determined in the original suit.”

[4][5] A judgment is not a bar to a second action unless it is founded on a substantially identical cause of action, Bougher v. Scobey (1863) 21 Ind. 365;Athearn v. Brannan (1847) 8 Blackf. 440; and, if the evidence necessary to sustain the second suit could not have produced a different result in the first suit, the first judgment is no bar to recovery in the second suit, although it is for the same cause of action. 34 C. J. 805, 806; Indianapolis, etc., R. Co. v. Clark (1863) 21 Ind. 150;Kirkpatrick v. Stingley (1850) 2 Ind. 269. It follows that the trial court erred in deciding this issue against appellants.

[6][7] After the passage of the first ordinance, appellants herein made application against the town of Beech Grove to the Public Service Commission of Indiana to have that ordinance set aside, canceled, and declared invalid, on the ground that the board of trustees of the town were without authority to adopt the ordinance, and that the ordinance was unreasonable, unjust, and discriminatory. Such petition the Public Service Commission considered as an appeal under section 110, c. 76, Acts 1913, Shively-Spencer Act (section 12783, Burns' 1926), as to the reasonableness of the ordinance. After hearing evidence, the commission rendered a written opinion concluding “that the ordinance is not unreasonable and is not invalid on that account,” and denied the prayer of the appellants. South Side Motor Coach Company v. Town of Beech Grove, Order No. 572M, approved November 27, 1925, Public Service Commission of Indiana.

Section 110, c. 76, Acts 1913 (section 12783, Burns' 1926), under which the commission assumed to act, provides, in part, that:

“Every municipal council shall have power, (a) to determine by contract, ordinance or otherwise, the quality and character of each kind of product or service to be furnished or rendered by any public utility furnishing any product or service within said municipality and all other terms and conditions, not inconsistent with this act, upon which such public utility may be permitted to occupy the streets, highways or other public property within such municipality, and such contract, ordinance or other determination of such municipality shall be in force and prima facie reasonable. Upon complaint made by such public utility *** the commission shall set a hearing, *** and if it shall find such contract, ordinance or other determination to be unreasonable, such contract, ordinance or other determination shall be void. ***”

We do not decide the question as to whether the General Assembly can legally provide for an “appeal” from a legislative act of a municipality to the Public Service Commission; such decision not being necessary for the determination of the issues herein.

The ordinance here involved does not relate to the quality or character of the service, and could not under that classification come within the provisions of section 110.

Neither do we believe that it relates to the terms and conditions upon which the utility is permitted to use the streets, but, if it did relate to such terms and conditions, we hold that section 110 does not apply, for the reason that the grant to the Public Service Commission of the power to control motor vehicle common carriers (unlike the grant to utilities generally) expressly provides that it shall not deprive public authorities (municipalities) of any of their jurisdiction over the public highways, and such jurisdiction, having never been taken away from municipalities, cannot be held to have been granted back to them by section 110. In City of Vincennes v. Vincennes Traction Co (1918) 187 Ind. 498, 120 N. E. 27, and in Public Service Commission v City of Indianapolis (1922) 193 Ind. 37, 47, 137 N. E. 705, it was said that chapter 76, Acts 1913 (sections 12672-12807, Burns' 1926), the...