Sutton v. Hunziker

• Decision Date: 07 July 1954
• Docket Number: No. 8050,8050
• Citation: Sutton v. Hunziker, 272 P.2d 1012, 75 Idaho 395 (Idaho 1954)
• Parties: SUTTON v. HUNZIKER et al.
• Court: Idaho Supreme Court

Page 1012

272 P.2d 1012

75 Idaho 395

SUTTON v. HUNZIKER et al.

No. 8050.

Supreme Court of Idaho.

July 7, 1954.

McNaughton & Sanderson, Coeur d'Alene, Bandelin, Bandelin & Ponack, Sandpoint, for appellants.

J. H. Felton and William J. Jones, Lewiston, Stephen Bistline, Sandpoint, for respondent.

Whitla & Knudson, Coeur d'Alene, amicus curiae.

PORTER, Chief Justice.

Prior to 1946, respondent built and developed a resort on Priest Lake in Bonner County. In the fall of 1946 and spring of 1947, Northern Lights, Inc., a corporation, constructed a power line from Paul Jones Beach on Priest Lake to the resort of respondent for the purpose of supplying electricity to respondent and other patrons. The line was connected with respondent's store and extended to cabins beyond the store. It was an overhead power line.

In the year 1947, respondent commenced to build an airport on his resort with a runway lying between his store and the cabins. Respondent thereafter demanded that the overhead power line be taken down between the store and the cabins as it interfered with his airport. It was discovered that the road along which such line was built was a private road and that Northern Lights, Inc., did not have a right of way. Respondent offered an easement for an underground right of way but refused to pay any of the expense of changing the line. The company demanded an easement for an unrestricted right of way and refused to put the line underground unless respondent paid the expense thereof.

After considerable ineffectual negotiation, the Board of Directors of Northern Lights, Inc., on May 16, 1950, passed a resolution in effect directing its manager to cut off the electric service to respondent's resort unless respondent executed an unrestricted easement for a power line across his property. Respondent refused to execute such easement, and in accordance with such resolution, the manager of the company, on or about July 1, 1950, cut off the lights and power serving respondent's resort. Thereafter, respondent applied for and was granted an alternative writ of mandamus requiring the company to reconnect the electricity to respondent's resort and to furnish the same service as had been theretofore furnished. After hearing, such writ of mandamus was made permanent. No appeal was taken and the company complied with the writ.

This action was commenced November 6, 1950, to recover the damages which respondent claims to have sustained by the disconnection of his electricity. Trial of the cause resulted in a verdict by the jury for compensatory damages in the sum of $4,092 and exemplary damages in the sum of $571.43 against each defendant. From the judgment entered on such verdict appeal has been taken to this court.

By their answers in this cause, appellants set out as an affirmative defense that the judgment entered in the original mandamus action was res adjudicata on the issues involved in this action, and constituted a bar to same. The court sustained the motion of respondent to strike out such affirmative defenses. Northern Lights, Inc., was originally one of the defendants named in this action, but before trial, respondent dismissed the action as against such company. The rulings of the trial court that the judgment in the mandamus action was not res adjudicata as to the issues in this action are assigned by appellant as prejudicial error. Whether the plea of res adjudicata was a good defense on behalf of Northern Lights, Inc., is a moot question and need not be discussed.

The mandamus action sought relief against the therein named defendant, Northern Lights, Inc., in that it sought a writ of mandate to compel the company to restore light and power service to respondent. It named the nine directors and manager as defendants in their representative capacity. No relief was sought against them. While some of the alleged damages resulting from the disconnection of the electric service were mentioned in the complaint by way of recital, no damages were prayed for; such issue was not presented to the court; and no damages were mentioned or allowed in the judgment. The present action is not against Northern Lights, Inc., nor against its directors and manager in their representative capacity. It is an action against six of the nine directors of the corporation and its manager, individually, for compensatory damages arising from the disconnection of respondent's electric service, and for punitive damages.

In order for a judgment in one action to be res adjudicata in a subsequent suit there must be identity of parties or their privies. In 50 C.J.S., Judgments, § 601, p. 25, it is said:

'In order that a former judgment may become a bar to the maintenance of a present suit, it must have been rendered in an action between the same parties, or between those in privity with them.'

In Collard v. Universal Automobile Ins. Co., 55 Idaho 560, at page 568, 45 P.2d 288, at page 291, we said:

'In order to make a judgment obtained in one action conclusive in another, it must appear that the former was rendered in an action between the same parties, or between those in privity with parties to the former action.'

See, generally, Mays v. District Court, 34 Idaho 200, 200 P. 115; Evans v. Davidson, 57 Idaho 548, 67 P.2d 83; Ada County v. Bottolfsen, 61 Idaho 64, 97 P.2d 599; Adams v. Nampa & Meridian Irr. Dist., 73 Idaho 521, 254 P.2d 407.

It is apparent that the defendants in this action are not identical with the defendants in the mandamus action. In the mandamus action these defendants were only parties in their representative capacity. Here each is being sued as an individual upon an alleged individual liability. In 30 Am.Jur., Judgments, par. 224, pp. 956-7, it is set out as follows:

'In order that parties for or against whom the doctrine of res judicata is sought to be applied may be regarded as the same in both actions, the general rule is that they must be parties to both actions in the same capacity or quality. Under this rule, a party acting in one right can be neither benefited nor injured by a judgment for or against him when acting in some other right. Thus, where a person brings an action or is sued in his individual right, a judgment rendered for or against him is not operative under the doctrine of res judicata in a subsequent action brought by or against the same person in a representative capacity. Similarly, a judgment rendered in an action in which one of the parties appears in a representative capacity is not operative under the doctrine of res judicata in a subsequent action involving the same party in his individual right.'

The judgment entered in the mandamus action is not res adjudicata in this action and is not a bar to the prosecution of same.

During the trial of the cause the court repeatedly ruled that Northern Lights, Inc., was a public utility and bound to furnish electricity to any member of the public properly applying therefor. Appellants urge that these rulings of the court were erroneous. They contend that Northern Lights, Inc., is not a public utility and is only required to serve its duly elected members.

Northern Lights, Inc., is a non-profit cooperative association organized under the provisions of Title 30, Chapter 10, I.C. It has no capital stock but is composed of members whose interests in the association are represented by membership certificates. It was organized for the purpose of furnishing electric service to its members in pursuance of the objects of the Rural Electrification Administration created by acts of Congress. Article II of its constitution states the purposes for which it was formed; and Section (a) thereof reads in part as follows:

'To generate, manufacture, purchase, acquire and accumulate electric energy for its members only and to transmit, distribute, furnish, sell and dispose of such electric energy to its members only, * * *.' (Emphasis supplied.)

Our public utilities law is contained in Title 61, I.C. Section 61-104 I.C., reads as follows:

'The term 'corporation' when used in this act includes a corporation, a company, an association and a joint stock association, but does not include a municipal corporation, or mutual nonprofit or cooperative gas, electrical, water or telephone corporation or any other public utility organized and operated for service at cost and not for profit, whether inside or outside the limits of incorporated cities, towns or villages.'

Section 61-119, I.C., defines an electrical corporation and does not, in terms, exclude a non-profit cooperative association. However, Section 61-119, I.C., was put in its present form by an amendment contained in Chapter 2, 1915 Session Laws. Prior to 1917, Section 61-104, I.C., did not...