Womach v. City of St. Joseph

Citation201 Mo. 467,100 S.W. 443
PartiesWOMACH v. CITY OF ST. JOSEPH.
Decision Date22 February 1907
CourtUnited States State Supreme Court of Missouri

Action by William M. Womach against the city of St. Joseph. There was a judgment refusing to set aside a nonsuit, and plaintiff brings error. Reversed and remanded.

Brewster, Ferrell & Mayer and Vinton Pike, for plaintiff in error. W. B. Norris and E. M. Spencer, for defendant in error.

LAMM, J.

Plaintiff sued the city of St. Joseph for $10,000 damages, in that he had been and would be deprived of the society, companionship, and services of his wife, Louisa Womach, was compelled to lay out large sums of money in taking care of and nursing his said wife, and for medical attendance made necessary by injuries suffered by her through the negligence of defendant city, whereby her right arm was broken at the wrist, and the optic nerve of her right eye was so injured that she became totally blind in that eye, and the sight of her left eye was sympathetically injured, and she had been rendered a constant sufferer and invalid cripple for the remainder of her life. These injuries were alleged to have been caused to Mrs. Womach through the negligence of defendant city in the construction of a certain sidewalk with a negligent grade at the base of a stone wall negligently permitted to be erected and maintained. Further, that said sidewalk lay in a sunken condition, whereby, in times of snowfall, large quantities of snow were drifted and piled upon said walk and retained there, so that (given alternate freezing and thawing) said snow, by reason of the shade of the wall and the steep construction of said sidewalk, did not melt off, but became transformed into ice and ice ridges of irregular shape. Further, that said city negligently permitted a certain portion of said walk to become and remain out of repair and dangerous, in that snow and ice had been allowed to accumulate and remain in uneven, irregular, rounded and slippery masses and ridges, etc., for many weeks prior to Mrs. Womach's injuries—all of which was well known to the authorities of said city. That the duty of defendant was to remove the snow and ice from said sidewalk so that it would be reasonably safe for persons traveling thereon, etc.

Hurt on the 28th day of December, 1898, Mrs. Womach in her own right brought suit against the city for her injuries received in that accident and the pain of body and anguish of mind caused thereby. She was worsted at a jury trial, and appealed to this court, where the judgment against her was affirmed. Womach v. City of St. Joseph, 168 Mo. 236, 67 S. W. 588. By its answer in the case at bar, defendant city tendered the general issue, except admitting it was a city of the second class, pleaded the contributory negligence of Louisa Womach, and followed that with a plea to the effect that the judgment in its favor in the wife's suit was res judicata. Plaintiff attacked the latter plea by a motion to strike out, which being overruled, plaintiff excepted. At the trial following on the heels of said ruling (a jury being waived), defendant city was allowed to introduce the record of the proceedings in the wife's suit. To this offer of proof plaintiff objected, on the following grounds: (1) Because the plaintiff herein was not a party to the suit in which said record was made; (2) because the injuries for which he brings suit were injuries done to himself and in which the plaintiff in the former suit had no interest, right, or claim; (3) because the parties are not the same; (4) because the subject-matter is not the same; (5) because the issues in the two cases are not the same; (6) because the judgment in the former case is not res judicata or a bar to this suit by this plaintiff. These objections being overruled, plaintiff excepted, and the record was admitted against plaintiff, whereupon the court gave an instruction for defendant to the effect that the judgment in favor of the city in the case of Louisa Womach was binding and controlling upon Womach as a bar to his action, and he could not recover. Having objected to this declaration and saved his exception, plaintiff took a nonsuit with leave. Filing and submitting an unsuccessful motion to set that nonsuit aside, plaintiff was allowed his bill of exceptions, and brings the case here by writ of error.

The case at bar is stripped of all extraneous issues. The bone of contention is sharp and narrow. Plaintiff admits "the petitions in both cases were founded upon the same accident, and the same issues in regard to defendant's liability and negligence were common to both." So, too, the issue of the wife's contributory negligence is a factor common to both. Therefore on this record the sole question is this: If a wife sue to recover damages for injuries done by negligence to her body and for the pain of body and anguish of mind flowing therefrom, and if she be cast on trial, does the judgment in her suit, as a matter of law, bar the husband's recovery in his suit against the same defendant for the damages personal to himself and arising out of the same event?

1. The line of demarkation between what is res judicata and what is not does not always run true in case-made law. Moreover, it is manifest that, when a case lies hard by the line of cleavage between what is and what is not res judicata, it may be a nice question to determine on which side of the line the case falls. The question presented is one of first impression in this court. In its consideration it will be well enough to recur to first principles, and at the thresh-hold point out (and assume) the rudimentary proposition that suits for damages sounding in tort are not proceedings in rem, or proceedings quasi in rem, wherein the status of a thing may be fixed once for all and made binding on all the world. 2 Black on Judgments (2d Ed.) § 795, and supra. It follows, therefore, that, in solving the problem in hand, it will not do to use the same spacious application of the doctrine of res judicata made in proceedings in rem or quasi in rem, but a narrower compass must be fetched to set bounds to the field of legitimate discussion.

2. As postulates to reason from, it may not be amiss to remind ourselves of the basic principles upon which estoppel by record is built, and marshal those rules, definitions, and legal principles to which we must refer the problem to be solved. Thus: This being an action strictly in personam, the rule is that, given the same subject-matter, then all parties and privies are bound by the judgment entered. The general rule deduced from the decided cases is thus announced by Mr. Herman (Herm. on Estop. & Res. Jud. § 102): "The essential conditions upon which the plea of res judicata becomes applicable are the identity of the thing demanded, the identity of the cause of demand, and of the parties in the character in which they are litigants." The philosophy of the matter may be put in this way: It concerns the state that there be an end to lawsuits. "Interest reipublicæ ut sit finis litium." Coke, Litt. 303. Or as put by Broom: It is for the general welfare that a period be put to litigation. Broom, Max. 331-343. Res judicata is estoppel by record, and this rule of conclusiveness is an inflexible principle of law having its foundation in the foregoing maxim. 1 Herm. Estop. & Jud. § 100. Says Broom: (Broom Leg. Max. [8th Ed.] * 331): "It is for the public good that there be an end to litigation; and, if there be any one principal of law settled beyond all question, it is this: That whenever a cause of action, in the language of the law, `transit in rem judicatum,' and the judgment thereupon remains in full force and unreversed, the original cause of action is merged, and gone forever. A plea of res judicata must show either an actual merger, or that the same point has already been decided between the same parties; that the plaintiff had an opportunity of recovering, and but for his own fault might have recovered in the original suit, that which he seeks to recover in the second action." And again (*343): "This latter maxim has [i. e., the maxim `interest reipublicæ,' etc.], as may readily be supposed, a wide application; it in fact embraces the whole doctrine of estoppels, which is obviously founded in common sense and sound policy, since, if facts once solemnly affirmed to be true were to be again denied whenever the affirmant saw his opportunity, there would never be an end to litigation and confusion."

So that it is hornbook law that, as the state may not put the same defendant twice in jeopardy for the same crime, no more may the individual A. vex B. twice in court on a cause of action once adjudicated. "Nemo debet bis vexari pro eadem causa." Not only so, but if A. sue B., and the cause proceeds to final judgment, then not only are A. and B. bound by the judgment, but, for like and obvious reasons, all persons in privity with either A. or B. are bound also. It is said that: "In the law of estoppel one person becomes privy of another, first, by succeeding to the position of that other as regards the subject of the estoppel, and, second, by holding in subordination to that other." Biglow on Estoppel (5th Ed.) p. 142. The same careful writer lays down another general proposition of appreciable value in the consideration of the matter in hand, and that is: "But it should be noticed that the ground of privity is property, and not personal, relation. To make a man a privy to an action, he must have acquired an interest in the subject-matter of the action either by inheritance, succession, or purchase from a...

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