Supreme Court of Ohio. NORWOOD v. McDONALD et al. age | 1 P No. 29319. Dec. 8, 1943.

West Headnotes 228 Judgment KeyCite Citing References for this Headnote 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded 228k585 Identity of Cause of Action in General 228k585(3) k. What Constitutes Distinct Causes of Action. Most Cited Cases If same facts will sustain both actions, the two actions are considered the same within rule that judgment in the former is a bar to the subsequent action, but if two actions rest upon different states of facts, or if different proofs will be required to sustain the two actions, a judgment in one is no bar to maintenance of the other. [4] KeyCite Citing References for this Headnote

Janz N. Serrano 228k950(1) k. Evidence Admissible Under Pleadings in General. Most Cited Cases In order to avail himself of defense of res judicata, defendant is required to plead and prove former adjudication relied upon to establish the defense. [7] KeyCite Citing References for this Headnote

13 Action 13I Grounds and Conditions Precedent 13k1 k. Nature and Elements of Cause of Action and Suspension of Remedies. Most Cited Cases A legal right is an interest with which the law invests a person, and for the infringement of which it gives him a remedy. [8] KeyCite Citing References for this Headnote

[1]

KeyCite Citing References for this Headnote

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(A) Judgments Conclusive in General 228k634 k. Nature and Requisites of Former Adjudication as Ground of Estoppel in General. Most Cited Cases The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. [2] KeyCite Citing References for this Headnote

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(A) Judgments Conclusive in General 228k634 k. Nature and Requisites of Former Adjudication as Ground of Estoppel in General. Most Cited Cases A point or fact which was actually and directly in issue in a former action and was there passed upon by court of competent jurisdiction may not be drawn in question in any future action between same parties or their privies, whether cause of action in the two actions be identical or different but such doctrine is based on estoppel rather than upon res judicata. [5] KeyCite Citing References for this Headnote

13 Action 13I Grounds and Conditions Precedent 13k1 k. Nature and Elements of Cause of Action and Suspension of Remedies. Most Cited Cases The investiture of a legal right arises from and depends upon operative facts and circumstances which, under the law, create the right, preserve it and assure a remedy for its infringement, and such operative facts and circumstances constitute a cause of action. [9] KeyCite Citing References for this Headnote

228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded 228k585 Identity of Cause of Action in General 228k585(1) k. Necessity in General. Most Cited Cases A judgment in a former action does not bar a subsequent action under doctrine of res judicata where cause of action prosecuted is not the same, even though each action relates to same subject matter. [3] KeyCite Citing References for this Headnote

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k716 Matters in Issue 228k720 k. Matters Actually Litigated and Determined. Most Cited Cases A claim of a litigant cannot be asserted as conclusive under doctrine of res judicata unless it was considered and determined or necessarily determined to be valid through rendition of a former judgment. [6] KeyCite Citing References for this Headnote 228 Judgment 228XXII Pleading Judgment as Estoppel or Defense 228k950 Issues, Proof, and Variance

228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded 228k585 Identity of Cause of Action in General 228k585(2) k. What Constitutes Identical Causes. Most Cited Cases A cause of action, for purpose of applying doctrine of res judicata, is the fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief. [10] KeyCite Citing References for this Headnote

228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded 228k585 Identity of Cause of Action in General 228k585(2) k. What Constitutes Identical Causes. Most Cited Cases

228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or

Janz N. Serrano Concluded 228k585 Identity of Cause of Action in General 228k585(2) k. What Constitutes Identical Causes. Most Cited Cases To determine whether a second action is based upon same P cause of action as that litigated in a former action claimed to be a age | 2 bar to the second action under doctrine of res judicata, the primary tests are identity of investitive facts creating the right of action in each case, the identity of the evidence necessary to sustain each action, and accrual of alleged rights of action at same time. [11] KeyCite Citing References for this Headnote Trial court may, on motion of defendant, order a consolidation of two or more suits pending simultaneously. Gen.Code, 11307. [14] KeyCite Citing References for this Headnote 143k3 Inconsistency of Alternative Remedies 143k3(1) k. In General. Most Cited Cases The doctrine of election of remedies is applicable only where, at time of election, there are available to litigants for assertion of a single right, two or more co-existing remedies which are repugnant to each other. [18] KeyCite Citing References for this Headnote

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k713 Scope and Extent of Estoppel in General 228k713(2) k. Matters Which Might Have Been Litigated. Most Cited Cases The rule that a judgment is conclusive not only as to what was determined in the action but as to all issues which properly might have been determined therein, is limited to cases involving a single cause of action. [15] KeyCite Citing References for this Headnote

143 Election of Remedies 143k13 Operation and Effect 143k15 k. Remedies Barred. Most Cited Cases Where a plaintiff obtains a judgment granting him one of two alternative or mutually exclusive remedies for assertion of same right or same relief, he is precluded from thereafter maintaining an action based on the other remedy under doctrine of election of remedies, but where a judgment is for the defendant in a suit based upon one of two mutually exclusive remedies, plaintiff is not precluded from thereafter maintaining an action based on the other remedy. [19] KeyCite Citing References for this Headnote

13 Action 13III Joinder, Splitting, Consolidation, and Severance 13k43 Joinder of Causes of Action Under Codes and Practice Acts 13k45 Nature and Grounds of Action in General 13k45(1) k. In General. Most Cited Cases 13 Action KeyCite Citing References for this Headnote 13III Joinder, Splitting, Consolidation, and Severance 13k53 Splitting Causes of Action 13k53(1) k. In General. Most Cited Cases Under statute, the joinder of several causes of action in one action is permissible but not mandatory. Gen.Code, 11307. [12] KeyCite Citing References for this Headnote

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k713 Scope and Extent of Estoppel in General 228k713(2) k. Matters Which Might Have Been Litigated. Most Cited Cases Where second action is upon a different claim or cause of action, judgment in first action operates as an estoppel only as to the points or questions actually litigated, and not as to other matters which might have been but were not determined therein. [16] KeyCite Citing References for this Headnote

143 Election of Remedies 143k8 Validity and Finality of Election 143k11 k. Mistake as to Remedy. Most Cited Cases Plaintiff's choice of a fancied remedy which never existed and the futile pursuit of it because of a mistake as to facts or the law, though the first action proceeds to judgment, does not preclude such plaintiff from thereafter invoking a proper remedy, in absence of facts which create an estoppel. [20] KeyCite Citing References for this Headnote

13 Action 13III Joinder, Splitting, Consolidation, and Severance 13k53 Splitting Causes of Action 13k53(1) k. In General. Most Cited Cases Although all claims of right embraced in a single cause of action must be prosecuted simultaneously, the litigant cannot be required to prosecute simultaneously all of his multiple causes of action even though they relate to same subject matter. Gen.Code, 11307. [13] KeyCite Citing References for this Headnote

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(D) Judgments in Particular Classes of Actions and Proceedings 228k747 Actions Relating to Real Property 228k747(5) k. Suit to Quiet Title. Most Cited Cases A judgment denying relief in action to establish title to land of deceased on theory of a trust was not res judicata in a subsequent ejectment action seeking to establish title on theory that plaintiff was common-law husband and only heir of deceased. [17] KeyCite Citing References for this Headnote

13 Action 13III Joinder, Splitting, Consolidation, and Severance 13k53 Splitting Causes of Action 13k53(1) k. In General. Most Cited Cases 143 Election of Remedies KeyCite Citing References for this Headnote 143k8 Validity and Finality of Election 143k12 k. Want of Jurisdiction or Ineffectiveness of Remedy. Most Cited Cases If a wrong has been inflicted and the victim is doubtful as to which of two or more remedies the facts will support, he may

13 Action 13III Joinder, Splitting, Consolidation, and Severance 13k54 Consolidation of Actions 13k56 k. Power to Consolidate. Most Cited Cases

143 Election of Remedies

pursue all of them until he recovers by means of one, and such principle is not affected by rule which prevents splitting of a single cause of action into separate causes of action. [21] KeyCite Citing References for this Headnote P 143 Election of Remedies age | 3 143k8 Validity and Finality of Election 143k12 k. Want of Jurisdiction or Ineffectiveness of Remedy. Most Cited Cases Plaintiff's attempt in prior action to establish title to land of deceased on theory of a trust was not an election of remedies, preventing him from thereafter bringing present action to establish title on theory that he was the common-law husband and only heir of deceased. **68 Syllabus by the Court. *299 1. A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them. *300 2. A judgment or decree in a former action does not bar a subsequent action where the causes of action are not the same, even though each action relates to the same subject matter. 3. A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different. 4. To determine whether a second action is based upon the same cause of action as that litigated in a former action claimed to be a bar to the second action under the doctrine of res judicata, the primary tests are the identity of investitive facts creating the right of action in each case; the identity of the evidence necessary to sustain each action; and the accrual of the alleged rights of action at the same time. 5. A legal right is an interest with which the law invests a person, and for the infringement of which it gives him a remedy. The investiture of such right arises from and depends upon operative **69 facts and circumstances which, under the law, create the right, preserve it and assure a remedy for its infringement. 6. Where a judgment is relied on by way of evidence as conclusive per se between the parties in a subsequent suit, it must appear by the record of the former suit that the particular

controversy sought to be precluded was therein actually or necessarily tried and determined. 7. To render a former judgment an absolute bar to a subsequent suit embracing the same matter in controversy, the former judgment must be specially pleaded and proved. A failure or neglect to so plead and prove such former adjudication constitutes a waiver of the defense of res judicata. 8. While all claims of right embraced in a single cause of action must be prosecuted simultaneously, a litigant cannot be required to prosecute simultaneously in a single action multiple causes of action, even though they relate to the same subject matter. 9. The rule that a judgment is conclusive, not only as to what was determined in the action but as to all issues which properly might have been determined therein, is limited to cases involving a single cause of action. 10. Where a plaintiff obtains a judgment granting him one of two alternative or mutually exclusive remedies for the assertion of the same right or the same relief, he is precluded from thereafter maintaining an action based on the other remedy; but *301 where a judgment is for the defendant in a suit based upon one of two mutually exclusive remedies, the plaintiff is not precluded from thereafter maintaining an action based on the other remedy. 11. A plaintiff's choice of a fancied remedy which never existed and the futile pursuit of it because of a mistake as to the facts or the law, though the first action proceeds to judgment, does not preclude such plaintiff from thereafter invoking a proper remedy, in the absence of facts which create an estoppel. Appeal from Court of Appeals, Hamilton County. Action by James N. Norwood against Thomas A. McDonald and another to establish plaintiff's title to certain real property as surviving spouse of former owner now deceased who died without issue. A judgment for defendants was affirmed by the Court of Appeals, 48 N.E.2d 906, and a motion to certify the record was allowed.-[Editorial Statement.] Judgment of Court of Appeals and that of the Common Pleas Court reversed, and the cause remanded. See, also, 140 Ohio St. 547, 45 N.E.2d 603. TURNER, J., and WEYGANDT, C. J., dissenting. Ada L. McDannold had at the time of her death on April 22, 1938, the fee simple title to certain real estate located in the city of Cincinnati. In this present action filed January 31, 1940, against the administrator of the estate of Ada L. McDannold and Thomas A. McDonald, an alleged heir at law of Ada L. McDannold, the plaintiff,

Janz N. Serrano James N. Norwood, claims that he is entitled to the possession of the real estate in question because he was the common-law husband of Ada L. McDannold, and therefore is her sole heir at law. He prays for possession of the property and for damages in the sum of $2,500 for being unlawfully kept out of possession. As a defense to the present action the defendants, in their fourth amended answer, set out the facts that on July 12, 1938, the plaintiff, Norwood, filed and prosecuted an action in which they were made defendants; that in the former action plaintiff claimed that title to the property in question was, in 1934, taken in the name of the decedent, Ada L. McDannold, and so continued until her death; that such real estate was held in trust by the decedent for herself and for the plaintiff, he having furnished the consideration for the purchase of such property; that as a result the whole *302 beneficial interest in the real estate vested, at the death of decedent, in the plaintiff, James N. Norwood; that on May 26, 1939, the trial court dismissed the plaintiff's petition in that action; that on hearing de novo on appeal to the Court of Appeals that court entered judgment for the appellees for the reason that the appellant has not established his case by that degree of proof required by law; that such judgment became final; and that such adjudication was conclusive and is res judicata as to all claims which plaintiff asserts or can assert in this present action. To this defense of res judicata, the plaintiff in this action, by reply, alleged that the sole issue in the former case, was **70 whether the decedent held the real estate in fee simple or as trustee, and that the decision therein established only that the decedent, Ada L. McDannold, did not hold title to the property as trustee, but in fee simple. The plaintiff also alleged in his reply that after the present action was instituted, to wit, on February 21, 1940, the defendants in this case filed in the Common Pleas Court an independent action against the plaintiff setting forth all of the allegations contained in their first defense herein and prayed that the plaintiff, James N. Norwood, defendant therein and plaintiff herein, be enjoined from prosecuting this action on the ground that all the rights of James Norwood in and to the real estate described were determined in such former action which became res judicata as to the claims of plaintiff in this action; that on the hearing of such injunction action the Common Pleas Court rendered judgment for Norwood, against O'Brien, administrator, and McDonald; that on appeal de novo in the Court of Appeals a like judgment was rendered on the ground that appellants are not entitled to injunction as prayed for in the petition; that such judgment became final, and that such adjudication*303 in that case constituted res judicata against the plaintiffs O'Brien and McDonald as to matters set out in their first defense in their fourth amended answer in this action. In the original action above referred to, the defendant Thomas V. McDonald, in the first defense set out in his amended answer to plaintiff's petition therein, alleged that he was the sole heir at law of the decedent Ada L. McDannold and, as such, inherited

the property in question. No reply was filed to this answer by the plaintiff, Norwood. However, the defendant Thomas A. McDonald made no prayer for affirmative relief in his amended answer and filed no cross-petition in this original or first action to establish title to the property in himself. The court did not enter any decree in his favor on that issue, but simply dismissed the petition of the plaintiff. On P appeal, the Court of Appeals in such original action, on hearing age | 4 de novo, did not enter any decree in favor of the plaintiff, Norwood, on the issue of title to the property, but again dismissed plaintiff's petition on the finding that the appellant [Norwood] has not established his case by that degree of proof required by law. Upon trial of the present action in the Common Pleas Court, a jury found the issues in favor of the plaintiff and returned a verdict for the plaintiff in the sum of $2,364.58. A motion for new trial and a motion for judgment notwithstanding the verdict were filed by the defendants. The trial court sustained the motion for judgment notwithstanding the verdict, but found it unnecessary to pass upon defendants' motion for new trial because of the judgment in their favor. On request of plaintiff, the trial court in this case made separate findings of fact and conclusions of law, finding as a conclusion of law that the plaintiff could and should have set up all claims he had for the property in question in the first action * * * and that the defendants*304 are entitled to a judgment dismissing the plaintiff's petition notwithstanding the verdict * * *. There was much testimony offered relating to the question as to whether a common-law marriage existed between the plaintiff, Norwood, and Ada L. McDannold at the time of her death, but the nature of that evidence need not be related in this statement of facts because the jury resolved that issue in favor of the plaintiff, and the trial court entered judgment in favor of the defendants notwithstanding the verdict, on the sole issue of res judicata. Upon appeal in this action to the Court of Appeals on questions of law, that court found no error prejudicial to the plaintiff and affirmed the judgment of the Common Pleas Court. The case is now in this court for review following the allowance of plaintiff's motion to certify the record. Jack Glenn Williams and Robert F. Badgley, both of Cincinnati, for appellant. H. G. Hightower and O'Brien & Beck, all of Cincinnati, for appellees. HART, Judge.

property, although the legal title was taken in the name of Ada L. McDannold and so remained until the date of her death. The appellees now claim that this present action of the appellant to establish title to the same property through inheritance from Ada L. McDannold, whom appellant claims was his common-law wife, is barred **71 by such former action under the doctrines of res judicata and election of *305 remedies. The trial court and the Court of Appeals so found. The sold issue, then, upon review, is whether the Common Pleas Court and the Court of Appeals were justified in holding that the present action is barred by the judgment in the former action under one or both of the doctrines of res judicata and election of remedies. [1] A comprehensive definition of res judicata is as follows: The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. 30 American Jurisprudence, 908, Section 161. See, also, Hinton, Adm'r, v. McNeil, 5 Ohio 509, 511, 24 Am.Dec. 315; Stein v. The Prairie Rose, 17 Ohio St. 471, 93 Am.Dec. 613; James v. Allen County, 44 Ohio St. 226, 6 N.E. 246, 58 Am.Rep. 821; State v. Cincinnati Tin & Japan Co., 66 Ohio St. 182, 64 N.E. 68. [2] If, however, the two suits do not involve the same claim, demand, and cause of action, such effect will not be ordinarily given to the prior judgment. (Italics ours.) 30 American Jurisprudence, 914, Section 172. To constitute a bar there must be identity not only of subject matter but also of the cause of action. In other words, a judgment in a former action does not bar a subsequent action where the cause of action prosecuted is not the same, even though each action relates to the same subject matter. 30 American Jurisprudence, 915; 34 Corpus Juris, 813; Restatement of Judgments, 158, 159 and 208; Cook v. Conners, 215 N.Y. 175, 109 N.E. 78, L.R.A.1916A, 1074, Ann.Cas. 1917A, 248; Winters v. Bisaillon, 153 Or. 509, 57 P.2d 1095, 104 A.L.R. 968; Stark v. Starr, 94 U.S. 477, 485, 24 L.Ed. 276, 278; *306 United Shoe Machinery Corp. v. United States, 258 U.S. 451, 458, 42 S.Ct. 363, 66 L.Ed. 708; Troxell, Adm'x, v. Delaware, L. & W. R. Co., 227 U.S. 434, 440, 33 S.Ct. 274, 57 L.Ed. 586, 590; Charles E. Harding Co. v. Harding, 352 Ill. 417, 186 N.E. 152, 88 A.L.R. 563; Newhall v. Enterprise Mining Co., 205 Mass. 585, 91 N.E. 905, 137 Am.St.Rep. 461; Rahr v. Wittmann, 147 Wis. 195, 132 N.W. 1107, 36 L.R.A.,N.S., 392; Taylor, Adm'r, v. Quinn, 68 Ohio App. 164, 39 N.E.2d 627; Cromwell v. Sac County, 94 U.S. 351, 352, 24 L.Ed. 195, 197. [3] It is to be observed that in the application of the doctrine of res judicata, if it is doubtful whether a second action is for the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. If the same facts or

Janz N. Serrano evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action. If, however, the two actions rest upon different states of facts, or if different proofs would be required to sustain the two actions, a judgment in one is no bar to the maintenance of the other. 30 American Jurisprudence, 918, Section 174. See, also, 2 Freeman on Judgments (5 Ed.), 1447, Section 687; Bell v. Merrifield, 109 N.Y. 202, 16 N.E. 55, 4 Am.St.Rep. 436; Curtiss v. Crooks, Trustee, 190 Wash. 43, 66 P.2d 1140. [4] As distinguished from what has already been said, it must be remembered that a point or fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different. But the effect of such determination goes no further, by way of barring the second action, than to settle as a finality the point or *307 fact litigated in the first action. This doctrine is based upon estoppel rather than upon res judicata. Conold v. Stern, 138 Ohio St. 352, 363, 35 N.E.2d 133, 134, 137 A.L.R. 1003; Gibson v. Solomon, 136 Ohio St. 101, 103, 104, 23 N.E.2d 996, 125 A.L.R. 903; Wright, Adm'r v. Schick, 134 Ohio St. 193, 16 N.E.2d 321, 121 A.L.R. 882; Quinn, Aud., v. State ex rel. Leroy, 118 Ohio St. 48, 160 N.E. 453; Hixson v. Ogg, 53 Ohio St. 361, 42 N.E. 32; Restatement of Judgments, 159, 175, 258, 294 and 300; Winters v. Bisaillon, supra; United Shoe Machinery Corp. v. United States, supra; Tessler v. Rothman, 232 Mich. 62, 204 N.W. 694. [5] The defendant McDonald makes some claim in argument that title to the property in question was litigated and decided in his favor in the trust action and that that issue has become res judicata and cannot be relitigated in this action. No **72 claim or right of a litigant can be asserted as conclusive under the doctrine of res judicata unless it was considered and determined or necessarily determined to be valid through the rendition of a former judgment. Where a judgment or decree is relied on by way of evidence, as conclusive per se, between the parties in a subsequent suit, it must appear by the record of the former suit, that the particular controversy sought to be precluded was therein necessarily tried and determined. Lessee of Lore v. Truman, 10 Ohio St. 45. The allegations of the amended answer of Thomas A. McDonald in the former action that he is the sole heir at law of the decedent, Ada L. McDannold, and that as her sole heir at law he is now the owner by inheritance of the premises described in plaintiff's petition, did not state operative facts but mere conclusions, were not responsive to any allegation of the petition, and were not made the basis of any prayer for relief. The prayer of his answer was that having fully answered, defendant, Thomas A. McDonald, prays *308 that the plaintiff's petition be dismissed at the plaintiff's costs. He filed no cross-petition to establish title to the property in himself,

The appellant failed, in a former action against the administrator of the estate of Ada L. McDannold and her collateral heir at law, to establish his title to the property in question under a claim that such title accrued to him through a resulting trust arising because he furnished the purchase money for the acquisition of the

offered no evidence in support of such claim, and neither the Common Pleas Court nor the Court of Appeals entered any decree in his favor on that issue, the Common Pleas Court finding that upon the issues and the evidence offered the plaintiff has failed to prove his case by clear, convincing and conclusive evidence, and therefore renders judgment for the defendants. The decree of the court was that P it is ordered, adjudged and decreed that the plaintiff's petition age | 5 be dismissed at plaintiff's costs, and that the defendants recover from the plaintiff all the costs herein expended. The judgment of the Court of Appeals was to the effect that the appellant has not established his case by that degree of proof required by law; that judgment be and the same hereby is rendered in favor of the appellees, that the petition of the appellant be and the same is hereby dismissed, and that all of the costs in the Court of Common Pleas and in this court be taxed against the appellant. [6] Furthermore, in the fourth amended answer of the defendant McDonald in this action, setting up as res judicata the claimed judgment in the former action, which he is required to do to avail himself of that defense (Meiss v. Gill, 44 Ohio St. 253, 6 N.E. 656; Clark v. Baranowski, 111 Ohio St. 436, 145 N.E. 760), he makes no allegations or claim of res judicata in his own behalf as to title to the property in question, but alleges that the judgments of the Common Pleas Court * * * and the Court of Appeals * * * on the docket of said courts are conclusive as to all claims which said plaintiff asserted, or could have asserted in said actions and are res judicata as to the allegations contained in plaintiff's petition in the above entitled [present] action. Clearly, no judgment can be claimed in favor of the *309 defendant McDonald in the original action to the effect that he was the sole heir at law of the decedent Ada L. McDannold and as such was the owner of the premises in question. The determination of that issue was not necessary in determining the validity of the cause of action of the plaintiff. The plaintiff claimed the beneficial ownership of the property because of a resulting trust. There was no claim made of title by inheritance by virtue of a common-law or other marriage, hence such issue was not considered or determined. In determining the validity of that trust, which was the sole issue before the court in the original action, it was a matter of no concern who were the heirs at law of Ada L. McDannold or as to their right of inheritance from her in case the trust failed, and not only McDonald himself, but the court so treated the matter, the former in shaping the pleadings and issues, and the latter in making no finding and entering no judgment on that issue. [7] [8] [9] In applying the law as above outlined to the facts in this case, it is necessary to determine the claimed rights of the plaintiff, aside from the procedure followed by him in their assertion. A legal right is an interest with which the law invests a person, and for the infringement of which it gives him a remedy. The investiture of such right arises from and depends upon operative facts and circumstances which, under the law, create the

right, preserve it and assure a remedy for its infringement. Such operative facts and circumstances constitute what is known as a cause of action. Although some confusion exists as to the distinction between right of action and cause of action (see Phillips' Code Pleading, 28, Section 31), for the purpose of applying the doctrine of res judicata, a cause of action may be defined as the fact or facts which establish or give rise to a right of action, the existence of which affords**73 a party a right to judicial relief. 1 American Jurisprudence, 405, Section 2. *310 Is the cause of action of the plaintiff in this action the same as that litigated in his first action? The defendants claim that it is and that res judicata is a defense to plaintiff's action. This determination must be made from an examination of the essential operative facts stated as constituting plaintiff's cause of action and the legal implications arising therefrom in each proceeding. In making this comparison, as a matter of convenience, the former action will be designated as the trust action and the present suit as the ejectment action, The issuable ultimate facts alleged and the legal implications arising therefrom as the bases of the two actions may be separately listed and stated as follows:

Janz N. Serrano 1. Action to recover possession of specific property claimed to be wrongfully withheld from plaintiff. 2. Legal title in fee simple in Ada L. McDannold at time of her death (admitted). 3. No claim that any consideration for acquisition of property by Ada L. McDannold was paid by plaintiff. 4. Alleged right or interest, if any, of both plaintiff and Thomas A. McDonald vested upon the death of Ada L. McDannold. 5. Marriage of Plaintiff and Ada L. McDannold, the vital issue. Right of inheritance is wholly dependent upon the existence of a marital relationship. 6. Claim to property subject to claims of creditors of Ada L. McDannold, and subject to inheritance taxes. 7. Law action triable to jury and appealable only on questions of law. *311 [10] From the above analysis it is clear that the plaintiff's claims do not constitute a single but two distinct causes of action. This fact is established by the application of all the tests by which this question may be determined. The chief tests are found in the answer which must be given to such questions as: Do the two suits involve the same claim or demand? Even though there be identity of subject matter, is there identity of cause of action, that is, identity in the investitive facts which create the right of action asserted in each proceeding or suit? Is the same evidence necessary to sustain each cause of action? Did the claims or rights of action asserted by the plaintiff in both actions vest or accrue at the same time? In each instance the answer, from the facts in this case, must be in the negative. Whether different proofs are required to sustain the two actions is said to be the best and most accurate test in determining whether the former action is a bar. 23 Ohio Jurisprudence, 973, Section 743; 2 Freeman on Judgments (5 Ed.), 1447, Section 687. In fact, it has been held to be an infallible test. Bittner v. West Virginia-Pittsburgh Coal Co., 4 Cir., 15 F.2d 652; Hodge v. Shaw, 85 Iowa 137, 52 N.W. 8, 39 Am.St.Rep. 290; Jacobs v. Jacobs, 92 Or. 255, 180 P. 515; Curtiss v. Crooks, Trustee, supra. Furthermore, the right or interest of the plaintiff, if any, in the property under the claim made in the trust action accrued during the lifetime of Ada L. McDannold and clearly could not be extinguished by her death. On the other hand, if the right under a claim of trust never existed, then the claim of an inheritable interest in the property arose upon, but not before, the death of Ada L. McDannold, conceding that the marriage is established and the jury so found in this present action. These claimed rights of the plaintiff

Trust Action 1. Action to establish a resulting trust in property in favor of plaintiff. 2. Legal title in Ada L. McDannold and equitable title in plaintiff up to time of her death. 3. Claim that consideration for acquisition of property by Ada L. McDannold was paid by plaintiff. 4. Alleged right or interest of plaintiff vested in lifetime of Ada L. McDannold. 5. Marriage of plaintiff and Ada L. McDannold not an issue, although evidence of marriage was offered which tended to rebut presumption of resulting trust and to support presumption of gift. Question of existence of resulting trust is not dependent upon any marital relationship. 6. Claim to property free from claims of creditors of Ada L. McDannold and from inheritance taxes. 7. Equitable action triable to court and appealable on questions of both law and fact.

Ejectment Action

could not both exist at the same time and, therefore, could not together constitute a single cause of action. And this is true *312 even though there be some evidential facts which support both claims. [12] [13] The joinder of several causes of P [11] age | 6 action in one action is permissible but not mandatory. Section 11307, General Code; Phillips' Code Pleading, Section 320. While all claims of right embraced in a single cause of action must be prosecuted simultaneously, a litigant cannot be required to prosecute simultaneously all of his multiple**74 causes of action even though they relate to the same subject matter. However, the court may, on motion of the defendant, order a consolidation of two or more suits pending simultaneously. 1 Ohio Jurisprudence, 383, Section 41. One may always bring a separate suit on each separate cause of action, even if joinder of the separate causes is permissible. 1 Ohio Jurisprudence, 383, Section 41; Simon v. Union Trust Co., 126 Ohio St. 346, 185 N.E. 425; Wharton v. Pollock, 49 Ohio App. 443, 445, 197 N.E. 379. [14] [15] The rule that a judgment is conclusive, not only as to what was determined in an action but as to all issues of fact which properly might have been determined therein, is limited to cases involving a single cause of action. 30 American Jurisprudence, 925, Section 180; 23 Ohio Jurisprudence, 979, Section 748; Restatement of Judgments, 158, 159 and 208; Babcock & Co. v. Camp, 12 Ohio St. 11; Cincinnati, W. & B. R. Co. v. Hoffhines, 46 Ohio St. 643, 22 N.E. 871; Hixson v. Ogg, supra; Rempe & Son v. Ravens, 68 Ohio St. 113, 67 N.E. 282; Sauer v. Downing, 109 Ohio St. 120, 142 N.E. 29; 2 Freeman on Judgments (5 Ed.), 1421, 1422, Sections 674, 675; Newhall v. Enterprise Mining Co., supra; Cromwell v. Sac County, supra. Of course, one cannot split a single cause of action (Ewing v. McNairy & Clafflin, 20 Ohio St. 315; James v. Allen County, supra), but when the second action is upon a different claim, or demand, or cause of action, the judgment in the first suit operates as an estoppel only as to the points or questions actually*313 litigated and determined, and not as to other matters which might have been but were not litigated and determined therein. 23 Ohio Jurisprudence, 981, Section 749; Restatement of Judgments, 159, 258, 294 and 300. [16] From these principles, supported by ample authority, we must conclude that the judgment in favor of the defendants and against the plaintiff in the former action or trust case is conclusive as to the nonexistence of a trust under which the plaintiff claimed a beneficial interest in the property; but it is not a bar as to the existence of an inheritable right in the plaintiff to the property as the heir-at-law of Ada L. McDannold, the issue squarely made in this action. The latter issue was not made, was not under consideration, was not litigated and was not determined in the trust action. That issue is made for the first time in this action and should be here

determined. Res judicata, based upon the trust action, is no defense in this action. In fact, the trial court, in passing upon the motion for judgment notwithstanding the verdict, recognized the fact that the claim made by the plaintiff in this case, namely, an inheritable right to the property in question through a common-law marriage with Ada L. McDannold, was not considered or passed on in the trust action. The court in its opinion rendered in passing on the motion for judgment said: In the trial of the trust case some evidence as to Norwood being the commonlaw husband was introduced to support the claim of the plaintiff, Norwood, that the relation of trustee and cestui que trust existed. The defendants produced some witnesses whose testimony tended to show that the relationship of husband and wife did not, in fact, exist. This matter, however, was not the issue made by the pleadings before the court but was incidental and collateral to said issue. The court is therefore of the opinion that the issue *314 made up by the pleadings in the [present] ejectment suit as to the relationship of plaintiff and the deceased was not actually considered as being included as an issue in the trust case. If this matter is to be held as res judicata it must be on the theory that the matters involved in the ejectment suit might have and could have been included and decided in the trust case. * * * The court is of the opinion that the plaintiff in the original suit could have set forth both claims, namely, that he was entitled to the property by virtue of a trust and that he was entitled to the property by virtue of his being the surviving commonlaw husband. He might have pleading these two causes of action in the alternative. It is true he may have been compelled to elect upon which cause of action he would proceed, and succeed or fail upon that cause which he relied upon as the stronger and be bound by that decision as to the other cause of action. It is not the policy of the law to permit a party to blow hot and cold, and to file a suit based upon certain facts and then when defeated allege other facts which would nullify the effect of the former claim. The trial court, as disclosed by the opinion above quoted, took the position that while the claim or cause of action litigated in the second action was not litigated or **75 considered in the first action, it could have been and should have been so litigated, and that because this was not done the claim made in the present action is barred. The court failed to recognize that the rule which it applied can apply only where there is a single cause of action involved in both suits. Since there were two entirely separate and distinct causes of action involved in this litigation, the plaintiff was not required to prosecute them in one action. On the contrary, the plaintiff was entitled to pursue what appeared to him to be his most advantageous remedy, and, even though he was *315 unsuccessful in that, he had a right, as shown in the course of this opinion, to

Janz N. Serrano pursue another less advantageous but nonetheless valid and appropriate remedy which he is pursuing in this action. Slight attention need be given to the effect of the judgment against the defendants in the injunction suit in which they sought to enjoin the prosecution of the present action. The court dismissed the petition for the reason that the plaintiffs in that action, appellees here, had an adequate remedy at law in that res judicata, which was the basis of the action for injunctive relief, could be pleaded as a defense and determined in this case. The court, therefore, made no decision as to the merits of the plea of res judicata, but on the contrary, held that it should not be considered at all in that case. [17] The appellees also claim that the appellant is concluded, through the application of the doctrine of election of remedies, as to all his rights claimed in this action by the adverse result to him in the former trust action. The doctrine of election of remedies is applicable only where, at the time of election, there are available to the litigant for the assertion of a single right, two or more coexisting remedies which are repugnant to and inconsistent with each other. Frederickson v. Nye, 110 Ohio St. 459, 144 N.E. 299, 35 A.L.R. 1163; 18 American Jurisprudence, 134, Section 11. [18] If a plaintiff obtains a judgment granting him one of two alternative or mutually exclusive remedies for the assertion of the same right or the same relief, he is precluded from thereafter maintaining an action for the other remedy. Restatement of Judgments, Section 64. But, where a judgment is for the defendant in a suit based upon one of two mutually exclusive remedies, the plaintiff is not precluded from thereafter maintaining an action for the other remedy. Restatement*316 of Judgments, Section 65, comment k. For example, where the plaintiff in his individual capacity is not entitled to maintain an action to recover damages for causing death in an action based upon a federal statute, but is entitled in such capacity to maintain an action to recover such damages for such injury in an action based upon a state statute, the fact that the plaintiff brought an action based upon the state statute and judgment was given for the defendant on the ground that a fellow workman was negligent does not preclude the plaintiff from thereafter maintaining, under the federal statute, an action in a representative capacity for the same injury. Troxell v. Delaware, L. & W. R. Co., supra. The plaintiff in this case had but one of two possible remedies. He could claim title to the property by reason of the trust if the trust existed, or he could claim title by inheritance if the marriage existed. Both bases of title could not coexist. If he had title through the trust, there was nothing to inherit even though Ada L. McDannold was his wife at the time of her death. If, however, there was no trust, then he could inherit the property as the heir-at-law of Ada L. McDannold. The existence or nonexistence of a valid trust in his favor, a substantive right, depended upon the juridical effect of the evidence which could be determined definitely only through an

action for that purpose. Until such action was prosecuted he was unable to determine to which one of two possible remedies he was entitled. [19] On this subject, 15 Ohio Jurisprudence, 252, Section 30, and P 18 American Jurisprudence, 147, Section 24, say It is a wellage | 7 established rule that the choice of a fancied remedy which never existed, and the futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed them to be, or the law applicable to the facts is found to be other than supposed, though the first action proceeds to judgment,*317 does not preclude the plaintiff from thereafter invoking the proper remedy, in the absence of facts which create an estoppel. Approved by Judge Jones in Conrad, Adm'x, v. Youghiogheny & Ohio Coal Co., 107 Ohio St. 387, 140 N.E. 482, 36 A.L.R. 1288. See, also, **76 Schultz v. Brunhoff Mfg. Co., 22 Ohio App. 220, 153 N.E. 924; Bedinger v. Stevie, 27 O. C. D. 393. [20] If a wrong has been inflicted and the victim is doubtful as to which of two or more remedies the facts will support, he may pursue all of them until he recovers by means of one. And this principle is not affected by the rule which prevents the splitting of a single cause of action into separate causes of action. 15 Ohio Jurisprudence, 253, Section 31. See Wessel v. Shank, Adm'r, 57 Ohio App. 35, 11 N.E.2d 275; Taylor, Adm'r, v. Quinn, 68 Ohio App. 164, 39 N.E.2d 627. This rule or doctrine is well illustrated by the case of Conrad, Adm'x, v. Youghiogheny & Ohio Coal Co., supra. In that case the plaintiff brought suit for the death of her decedent, charging negligence under the common law. The injury causing decedent's death was alleged to have been sustained while he was riding in one of the cars of the defendant, employer of the decedent, after the termination of his day's employment, and while not in the course of his employment. In the second defense of the answer the defendant alleged that it had complied with the Workmen's Compensation Act; that the plaintiff had theretofore made claim to the Industrial Commission on account of the death of her decedent from injuries claimed to have been received in the course of his employment; that her claim had been denied, whereupon she had appealed to the Common Pleas Court, which dismissed such appeal; and that in filing her application for compensation she had made her election and was, therefore, estopped from asserting her action for damages. The *318 reply alleged that the Industrial Commission had refused to make an award upon the ground that at the time plaintiff's decedent met his death he was not engaged as an employee of the defendant. At this stage of the case, the defendant's motion for judgment on the pleadings was sustained on the ground that the plaintiff, in unsuccessfully prosecuting her claim for compensation, had waived her option to sue for damages. This court on review held that on the motion for judgment on the pleadings, the fact must be conceded, as alleged in the amended

petition, that the deceased was killed after the fermination of his day's employment, and while not in the course of his employment, and further held that the question before the court was whether the plaintiff was concluded by an estoppel of record evidenced by the finding of the commission against her. On giving answer to that question, this court held that if the finding had been in favor of the applicant, or if the latter had accepted compensation under the act, she would have been estopped from instituting her suit for damages, but that since the sole ground of rejection of her claim for compensation by the commission was that the deceased was not in the employ of the defendant or killed in the course of employment, she could maintain her action for damages against the employer, as at common law. The fact that she had failed in pursuing a mistaken remedy as disclosed by the allegations of the answer and reply, did not preclude her from pursuing the only remedy which was, in fact, available to her. Judge Jones in the course of his opinion in the case just referred to, says: This principle is supported by Lessee of Lore v. Truman, 10 Ohio St. 45. There the jurisdiction of a court of equity had been sought by the plaintiff, and it was held that a dismissal for want of equitable jurisdiction would not estop the plaintiff from *319 seeking relief in a court of law touching the matters relied upon in his equitable suit * * *. Judge Jones further says in the course of his opinion: The following is the syllabus in Water, Light & Gas Co. v. Hutchinson, 8 Cir., 160 F. 41, 90 C.C.A. 547, 19 L.R.A.,N.S., 219: The fact that a party through mistake attempts to exercise a right to which he is not entitled or has made choice of a supposed remedy which never existed, and pursued it until the court adjudged that it never existed, does not preclude him from afterwards pursuing a remedy for relief, to which in law and good conscience he is entitled. To the same effect are Harrill v. Davis, 8 Cir., 168 F. 187, 94 C.C.A. 47, 22 L.R.A.,N.S., 1153; Rankin v. Tygard, 8 Cir., 198 F. 795, 119 C.C.A. 591; Standard Oil Co. of Kentucky v. Hawkins, 7 Cir., 74 F. 395, 20 C.C.A. 468, 33 L.R.A. 739; Zimmerman v. Robinson & Co., 128 Iowa 72, 102 N.W. 814, 5 Ann.Cas. 960; Cramer v. Moore, 36 Ohio St. 347; Porter v. Wagner, 36 Ohio St. 471; Courtney v. Courtney, 149 Iowa 645, 129 N.W. 52; Henry v. Herrington, 193 N.Y. 218, 86 N.E. 29, 20 L.R.A.,N.S., 249; **77 Schenck v. State Line Telephone Co., 238 N.Y. 308, 144 N.E. 592, 593, 35 A.L.R. 1149. The case of Austin v. First Trust & Savings Bank, 343 Ill. 406, 175 N.E. 554, shows a strong analogy to the case at bar. In that case the plaintiff, who was also the plaintiff in error, first claimed title to certain personal property as a gift causa mortis through written instruments executed by his wife. Failing in this, he then claimed title to the same property through the same written instruments as codicils to the last will and testament of his wife. Under his first

Janz N. Serrano contention he claimed title passed to him in the form of a conditional gift; under the second, he claimed title passed to him under a will upon her death. An order denying *320 the probate of the two instruments as codicils was affirmed by the Appellate Court, 256 Ill.App. 236, and plaintiff appealed to the Supreme Court. In its opinion, 343 Ill. at page 410, 175 N.E. at page 556, the Supreme Court said: It is claimed by defendant in error that, whenever the law supplies to a party two or more methods of redress in a given case, based upon inconsistent theories, however those methods may differ either in form or form of procedure or in the personality of the parties to the several proceedings, the party is put to his election, and his choice of either is a bar to his resort to the other, and, the plaintiff in error having elected to attempt to establish a gift causa mortis in the citation proceeding by reason of the instruments of June 29, 1922, by such election he is estopped and barred from now having them probated as codicils to the will. * * * The rule of law contended for by defendant in error does not apply to the facts of his case. Plaintiff in error did not have the choice of two remedies. In fact, he did not have two remedies. The fact that he may have mistakenly believed that he had a remedy in the citation proceedings and could establish a gift causa mortis does not constitute such an election of remedies as would bar him in the present suit from claiming that the instruments * * * were codicils to the will. Even the institution of a suit will not be held such a decisive act as to constitute a waiver of rights which would be inconsistent with the maintenance of such suit if the court in which the first action is brought has no jurisdiction to try the cause, if the cause of action is prematurely brought and is defeated for that reason, if the suitor has in his first action mistaken his remedies and is defeated on that ground, or if an action is commenced in ignorance of material facts which proffer an alternative remedy, the knowledge of which is essential to an intelligent choice of procedure. *321 Chicago Terminal Transfer R. Co. v. Winslow, 216 Ill. 166, 74 N.E. 815; Garrett v. John V. Farwell Co., 199 Ill. 436, 65 N.E. 361. In Kelly v. Curtis (In re Broffee's Estate), 206 Mich. 107, 172 N.W. 541, it was held that a party claiming title under an instrument is not estopped, on the doctrine of election of remedies, from propounding the instrument as a will by the fact that he had ineffectually claimed that it was a deed when defending an action in ejectment, such doctrine not applying to a case of mistaken remedy. * * * Plaintiff in error is not now estopped from presenting the instruments of June 29, 1922, for probate as codicils to the will of Mrs. Austin by not filing them with the will in 1922, or by reason of his mistaken use of them in his attempt to establish a gift causa mortis, and his mistake as to the effect of such instruments will be treated as analogous to if not identical with, a mistake of fact. (Italics ours.) The case of Weeks v. Edwards, Adm'x, 176 Mass. 453, 57 N.E. 701, was an action to establish a resulting trust in a tract of land in Falmouth, Massachusetts, formerly held in fee simple by the father

of the plaintiff and the defendants, on the ground that the plaintiff had given the father half of the purchase price of the property with the understanding that the latter would buy the land for both. The defendants pleaded that before bringing this action the plaintiff brought an action to partition the property in which he alleged that his interest in the land was one-fifth, which was his share by descent. The defendants answered admitting plaintiff's one-fifth P age | 8 interest. While the partition action was pending, plaintiff moved to dismiss the proceedings but the court continued the action without prejudice to await final action in the later case. The Superior Court held that the partition proceeding was no bar to the action to establish a trust. Chief Justice Holmes, speaking for the court, said: The ruling was right. The ground taken by the defendants*322 is that the partition proceedings are inconsistent with this bill in equity; that if they had gone to judgment they would be a bar; and that, therefore, the pendency of them equally is **78 a bar. It is unnecessary to say all that might be said in answer to this argument. It is enough that the proceedings are not inconsistent. Those for partition go on the legal title. The plaintiff has a legal title to one-fifth. It is consistent with this that he should have an equitable right to a larger share. The assertion of the equitable right is not inconsistent with a wish to have what he is admitted to own set off to him. All that can be said is that when asserting an equitable title a man would not be so likely to ask for a partition before as after the equitable rights were disposed of, and either adjudicated against, or turned into legal rights by conveyances. This the plaintiff recognized, and it is not his fault that the partition proceedings still are in court. But there is no logical inconsistency in his asserting his admitted legal rights and his controverted equitable rights at the same time. * * * Williams v. Van Tuyl, 2 Ohio St. 336, 338. * * * The case is not argued for the defendants as one of election, and plainly is not one. The plaintiff is not called upon to choose between his legal and his equitable title. He has a right to assert his equitable title in addition to that which he has by the common law. There is not even occasion to require the plaintiff to elect between remedies, as when he has vexed the defendant with two suits for the same cause. Sandford v. Wright, 164 Mass. 85, 87, 41 N.E. 120; Connihan v. Thompson, 111 Mass. 270, 272. [21] Here the plaintiff had but one remedy, not two remedies as to which election might be required. By his first Action it was determined that he did not have a remedy by way of a resulting trust, because the evidence would not sustain it. The result in that action does not bar this suit in which he pursues a different remedy found by the jury to be valid. *323 For reasons already stated and upon the authorities cited and discussed, the judgment of the Court of Appeals and that of the Common Pleas Court are reversed, and the cause is remanded to the Common Pleas Court for further proceedings according to law.

Judgment reversed, and cause remanded.

Janz N. Serrano Appellant gambled and lost. The judgment of the Court of Appeals should be affirmed.

MATTHIAS, ZIMMERMAN, and WILLIAMS, JJ., concur.

WEYGANDT, C. J., concurs in the foregoing dissenting opinion. Ohio 1943 NORWOOD v. McDONALD 142 Ohio St. 299, 52 N.E.2d 67, 27 O.O. 240 END OF DOCUMENT

WEYGANDT, C. J., and TURNER, J., dissent.

BELL, J., not participating.

TURNER, Judge (dissenting).

We dissent because we are of the opinion that appeallant had but one cause of action growing out of a single right of action. The right of action claimed by appellant in both the trust and ejectment cases was his primary right to recover the fee simple title to certain real estate. Under appellant's claimed facts he had two remedies-one equitable and one legal. He could have asked for relief under both theories in a single cause of action. He elected to proceed in chancery alone thereby abandoning his legal remedy in the event that his equitable cause was entertained. The fact that he lost in chancery does not change the situation, although had the court refused to entertain his petition for equitable relief there would have been no election for the simple reason that he had no equitable cause to try. Again, had appellant brought his action to declare a trust during the lifetime of Ada L. McDannold and lost and then after her death had brought his action in ejectment on the theory that the title had descended to him as surviving spouse, there would have been no inconsistency and no occasion for the application of the doctrines of election, estoppel or res judicata. After the death of Ada L. McDannold, plaintiff had two remedies for the vindication of his single claimed *324 right but not two causes of action. The recovery sought in both cases was the fee simple title to the same real estate. The excuse given in argument for the procedure was that appellant sought through the trust case to avoid the inheritance and estate taxes. Such claim necessarily admits that there was a deliberate and not an accidental election.

Supreme Court of the United States CROMWELL v. COUNTY OF SAC. age | 9 P October Term, 1876 **1 ERROR to the Circuit Court of the United States for the District of Iowa. The action was on certain bonds and coupons thereto attached, issued by the county of Sac, in the State of Iowa. The facts are sufficiently stated in the opinion of the court. The defendant obtained judgment, and the plaintiff brought the case here.

228k619 k. Defenses Which Might Have Been Urged in Former Action. Most Cited Cases A judgment bars not only every defense actually raised or set up in the action, but every other defense which might have been urged therein. KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(A) Judgments Conclusive in General 228k652 k. Judgment by Default. Most Cited Cases A judgment by default only admits for the purpose of the action the legality of the demand or claim in suit and it does not make the allegations of the declaration or complaint evidence in an action upon a different claim. KeyCite Citing References for this Headnote

Janz N. Serrano Where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined, and only upon such matters is the judgment conclusive in another action. KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k713 Scope and Extent of Estoppel in General 228k713(1) k. In General. Most Cited Cases If defenses were not presented in prior action and established by competent evidence, the allegation of their existence in subsequent action is of no legal consequence, and the judgment of the prior action is as conclusive, so far as subsequent proceedings at law are concerned, as though the defenses never existed. KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k715 Identity of Issues, in General 228k715(2) k. What Constitutes Identity of Issues. Most Cited Cases Although a second suit between the same parties is on a different claim, the prior judgment constitutes an estoppel as to matters actually put in issue, or points controverted, on the determination of which the finding or verdict was rendered. KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k716 Matters in Issue 228k721 k. Indebtedness or Liability. Most Cited Cases A judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it is alleged in a subsequent action that perfect defenses actually exist, of which no proof was offered, such as forgery, want of consideration or payment.

West Headnotes

KeyCite Citing References for this Headnote 228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded 228k608 Distinct Causes of Action from Same Act or Transaction 228k609 k. In General. Most Cited Cases In an action against a county on interest coupons originally attached to bonds issued by the county for the erection of a court house, the bonds were void, as against the county, in the hands of parties who did not acquire them before maturity for value; and, inasmuch as plaintiff in that action had not proved that he had given such value, it was adjudged that he was not entitled to recover. Held, that the judgment did not estop plaintiff, holding other bonds of the same series, and other coupons attached to the same bonds as the coupons in the original action, from showing, in a second action against the county, that he acquired such other bonds and coupons for value before maturity. KeyCite Citing References for this Headnote 228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded 228k616 Defenses Concluded

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k713 Scope and Extent of Estoppel in General 228k713(1) k. In General. Most Cited Cases The difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action on the same claim or demand and its effect as an estoppel in another action between the same parties on a different claim or cause of action is that the judgment, if rendered on the merits, constitutes an absolute bar to a subsequent action on the same claim or demand, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also as to any other admissible matter which might have been offered for that purpose; but, as respects an action afterwards brought between the same parties on a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, on the determination of which the finding or verdict was rendered. KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k713 Scope and Extent of Estoppel in General 228k713(1) k. In General. Most Cited Cases

KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded P 228k734 Matters Not in Issue age | 10 228k735 k. In General. Most Cited Cases A point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action. KeyCite Citing References for this Headnote 228 Judgment 228XXIII Evidence of Judgment as Estoppel or Defense 228k951 Evidence as to Judgment in General 228k951(2) k. Admissibility in General. Most Cited Cases In action on bonds issued by county and on interest coupons attached to bonds, evidence showing that prior action upon certain earlier maturing coupons on the same bonds was brought for the sole use and benefit of the present plaintiff was admissible. *351 Mr. John N. Rogers for the plaintiff in error. Mr. Galusha Parsons, contra. **2 1. The difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action, stated. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. 2. In an action against a county in Iowa upon certain interest coupons originally attached to bonds issued by the county for the erection of a court-house, it was found and determined that the bonds were void as against the county in the hands of parties who did not acquire them before maturity for value; and, inasmuch as the plaintiff in that action had not proved that he had given such value, it was adjudged that he was not entitled to recover. Held, that

the judgment did not estop the plaintiff, holding other bonds of the same series, and other coupons attached to the same bonds as the coupons in the original action, from showing, in a second action against the county, that he acquired such other bonds and coupons for value before maturity. 3. The finding in one action that the plaintiff therein is the holder and owner of certain coupons in suit does not estop the defendant from showing, in another action, that such plaintiff prosecuted the first action for the use and benefit of the plaintiff in the second action. The finding only establishes the fact that such plaintiff held the legal title to the coupons, which was sufficient for the purpose of the action, and was not inconsistent with an equitable and beneficial interest in another.

Janz N. Serrano as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defences actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defences were not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law *353 are concerned, as though the defences never existed. The language, therefore, which is so often used, that a judgment estops not only as to every ground of recovery or defence actually presented in the action, but also as to every ground which might have been presented, is strictly accurate, when applied to the demand or claim in controversy. Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action. The difference in the operation of a judgment in the two classes of cases mentioned is seen through all the leading adjudications upon the doctrine of estoppel. Thus, in the case of Outram v. Morewood, 3 East, 346, the defendants were held estopped from averring title to a mine, in an action of trespass for digging out coal from it, because, in a previous action for a similar trespass, they had set up the same title, and it had been determined against them. In commenting upon a decision cited in that case, Lord Ellenborough, in his elaborate opinion, said: It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury; but the estoppel precludes parties and privies from contending to the contrary of that point or matter of fact, which, having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them. And in the *354 case of Gardner v. Buckbee, 3 Cowen, 120, it was held by the Supreme Court of New York that a verdict and judgment in the Marine Court of the city of New York, upon one of two notes given upon a sale of a vessel, that the sale was fraudulent, the vessel being at the time unseaworthy, were conclusive upon the question of the character of the sale in an action upon the other note between the same parties in the Court of Common Pleas. The rule laid down in the celebrated opinion in the case of the Duchess of Kingston was cited, and followed: That the judgment of a court of concurrent jurisdiction

MR. JUSTICE FIELD delivered the opinion of the court.

This was an action on four bonds of the county of Sac, in *352 the State of Iowa, each for $1,000, and four coupons for interest, attached to them, each for $100. The bonds were issued in 1860, and were made payable to bearer, in the city of New York, in the years 1868, 1869, 1870, and 1871, respectively, with annual interest at the rate of ten per cent a year. To defeat this action, the defendant relied upon the estoppel of a judgment rendered in favor of the county in a prior action brought by one Samuel C. Smith upon certain earlier maturing coupons on the same bonds, accompanied with proof that the plaintiff Cromwell was at the time the owner of the coupons in that action, and that the action was prosecuted for his sole use and benefit. **3 The questions presented for our determination relate to the operation of this judgment as an estoppel against the prosecution of the present action, and the admissibility of the evidence to connect the present plaintiff with the former action as a real party in interest. In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive

directly upon the point is as a plea a bar, or as evidence conclusive between the same parties upon the same matter directly in question in another court. **4 These cases, usually cited in support of the doctrine that the determination of a question directly involved in one action is conclusive as to that question in a second suit between the same P age | 11 parties upon a different cause of action, negative the proposition that the estoppel can extend beyond the point actually litigated and determined. The argument in these cases, that a particular point was necessarily involved in the finding in the original action, proceeded upon the theory that, if not thus involved, the judgment would be inoperative as an estoppel. In the case of Miles v. Caldwell, reported in the 2d of Wallace, a judgment in ejectment in Missouri, where actions of that kind stand, with respect to the operation of a recovery therein, as a bar or estoppel, in the same position as other actions, was held by this court conclusive, in a subsequent suit in equity between the parties respecting the title, upon the question of the satisfaction of the mortgage under which the plaintiff claimed title to the premises in the ejectment, and the question as to the fraudulent character of the mortgage under which the defendant claimed, because these questions had been submitted to the jury in that action, and had been passed upon by them. The court held, after full consideration, that in cases of tort, equally as in those arising upon contract, where the form of the issue was so vague as not to show the questions of fact submitted to the jury, it was competent to prove by parol testimony what question or questions of fact were thus submitted and necessarily passed upon by them; and *355 by inevitable implication also held that, in the absence of proof in such cases, the verdict and judgment were inconclusive, except as to the particular trespass alleged, whatever possible questions might have been raised and determined. But it is not necessary to take this doctrine as a matter of inference from these cases. The precise point has been adjudged in numerous instances. It was so adjudged by this court in the case of The Washington, Alexandria, & Georgetown Steam Packet Co. v. Sickles, reported in the 24th of Howard. In that case, an action was brought upon a special parol contract for the use of Sickles's cut-off for saving fuel in the working of steam-engines, by which the plaintiffs, who had a patent for the cut-off, were to attach one of their machines to the engine of the defendants' boat, and were to receive for its use three-fourths of the saving of fuel thus produced, the payments to be made from time to time when demanded. To ascertain the saving of fuel an experiment was to be made in a specified manner, and the result taken as the rate of saving during the continuance of the contract. The plaintiffs in their declaration averred that the experiment had been made, at the rate of saving ascertained, and that the cut-off had been used on the boat until the commencement of the suit. In a prior action against the same defendant for an instalment due, where the declaration set forth the same contract in two counts, the first of which was similar to the counts in the second action, and also the common counts, the plaintiffs had obtained verdict and judgment; and it was insisted

that the defendant was estopped by the verdict and judgment produced from proving that there was no such contract as that declared upon, or that no saving of fuel had been obtained, or that the experiment was not made pursuant to the contract, or that the verdict was rendered upon all the issues, and not upon the first count specially. The Circuit Court assented to these views, and excluded the testimony offered by the defendants to prove those facts. But this court reversed the decision, and held that the defendants were not thus estopped. **5 The record produced by the plaintiffs, said the court, showed that the first suit was brought apparently upon the same contract as the second, and that the existence and validity *356 of that contract might have been litigated. But the verdict might have been rendered upon the entire declaration, and without special reference to the first count. It was competent to the defendants to show the state of facts that existed at the trial, with a view to ascertain what was the matter decided upon by the verdict of the jury. It may have been that there was no contest in reference to the fairness of the experiment, or to its sufficiency to ascertain the premium to be paid for the use of the machine at the first trial, or it may have been that the plaintiffs abandoned their special counts and recovered their verdict upon the general counts. The judgment rendered in that suit, while it remains in force, and for the purpose of maintaining its validity, is conclusive of all the facts properly pleaded by the plaintiffs; but when it is presented as testimony in another suit, the inquiry is competent whether the same issue has been tried and settled by it. It is not believed that there are any cases going to the extent that because in the prior action a different question from that actually determined might have arisen and been litigated, therefore e such possible question is to be considered as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions. On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action Various considerations, other than the actual merits, may govern a party in bringing forward grounds of recovery or defence in one action, which may not exist in another action upon a different demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own situation at the time. A party acting upon considerations like these ought not to be precluded from contesting in a subsequent action other demands arising out of the same transaction. A judgment by default only admits for the purpose of the action the legality of the demand or claim in suit: it does not make the allegations of the declaration or complaint evidence in an action upon a different claim. The declaration *357 may contain different statements of the cause of action in different counts. It could hardly be pretended that a

Janz N. Serrano judgment by default in such a case would make the several statements evidence in any other proceeding. Boyleau v. Rutlin, 2 Exch. 665, 681; Hughes v. Alexander, 5 Duer, 493. **6 The case of Howlett v. Tarte, 10 C. B. N. S. 813, supports this view. That was an action for rent, under a building agreement. The defendant pleaded a subsequent agreement, changing the tenancy into one from year to year, and its determination by notice to quit before the time for which the rent sued for was alleged to have accrued. The plaintiff replied that he had recovered a judgment in a former action against the defendant for rent under the same agreement, which had accrued after the alleged determination of the tenancy, in which action the defendant did not set up the defence pleaded in the second action. On demurrer, the replication, after full argument, was held bad. In deciding the case, Mr. Justice Willes said: It is quite right that a defendant should be estopped from setting up in the same action a defence which he might have pleaded, but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action. . . . I think we should do wrong to favor the introduction of this new device into the law. Mr. Justice Byles said: It is plain that there is no authority for saying that the defendant is precluded from setting up this defence. Mr. Justice Keating said: This is an attempt on the part of the plaintiff to extend the doctrine of estoppel far beyond what any of the authorities warrant. The language of the Vice-Chancellor, in the case of Henderson v. Henderson, 3 Hare, 100, 115, is sometimes cited as expressing a different opinion; but, upon examining the facts of that case, it will appear that the language used in no respect conflicts with the doctrine we have stated. In that case, a bill had been filed in the Supreme Court of Newfoundland, by the next of kin of an intestate, against A. and others, for an account of an estate and of certain partnership transactions. A decree was rendered against A., upon which the next of kin brought actions in England. A. then filed a bill there against the next *358 of kin and personal representative of the intestate, stating that the intestate's estate was indebted to him, and alleging various errors and irregularities in the proceedings in the Supreme Court of the island, and praying that the estate of the intestate might be administered, the partnership accounts taken, and the amount of the debt due to him ascertained and paid. A demurrer to the bill was allowed for want of equity, on the ground that the whole of the matters were in question between the parties, and might properly have been the subject of adjudication in the suit before that court. It was with reference to the necessity of having the subject of particular litigation, as a whole, at once before the court, and not by piecemeal, that the ViceChancellor said:-In trying this question, I believe I state the rule of court correctly, that when a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court

requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in controversy, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of the case. The P plea of res adjudicata applies, except in special cases, not only age | 12 to the points upon which the court was required by the parties to form an opinion, and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. **7 There is nothing in this language, applied to the facts of the case, which gives support to the doctrine that, whenever in one action a party might have brought forward a particular ground of recovery or defence, and neglected to do so, he is, in a subsequent suit between the same parties upon a different cause of action, precluded from availing himself of such ground. If, now, we consider the main question presented for our determination by the light of the views thus expressed and the authorities cited, its solution will not be difficult. It appears from the findings in the original action of Smith, that the county of Sac, by a vote of its people, authorized the issue of *359 bonds to the amount of $10,000, for the erection of a court-house; that bonds to that amount were issued by the county judge, and delivered to one Meserey, with whom he had made a contract for the erection of the court-house; that immediately upon receipt of the bonds the contractor gave one of them as a gratuity to the county judge; and that the court-house was never constructed by the contractor, or by any other person pursuant to the contract. It also appears that the plaintiff had become, before their maturity, the holder of twentyfive coupons, which had been attached to the bonds; but there was no finding that he had ever given any value for them. The court below held, upon these findings, that the bonds were void as against the county, and gave judgment accordingly. The case coming here on writ of error, this court held that the facts disclosed by the findings were sufficient evidence of fraud and illegality in the inception of the bonds to call upon the holder to show that he had given value for the coupons; and, not having done so, the judgment was affirmed. Reading the record of the lower court by the opinion and judgment of this court, it must be considered that the matters adjudged in that case were these: that the bonds were void as against the county in the hands of parties who did not acquire them before maturity and give value for them, and that the plaintiff, not having proved that he gave such value, was not entitled to recover upon the coupons. Whatever illegality or fraud there was in the issue and delivery to the contractor of the bonds affected equally the coupons for interest attached to them. The finding and judgment upon the invalidity of the bonds, as against the county, must be held to estop the plaintiff here from averring to the contrary. But as the bonds were negotiable instruments, and their issue was authorized by a vote of the county, and they recite on their face a compliance

with the law providing for their issue, they would be held as valid obligations against the county in the hands of a bona fide holder taking them for value before maturity, according to repeated decisions of this court upon the character of such obligations. If, therefore, the plaintiff received the bond and coupons in suit before maturity for value, as he offered to prove, he should have been permitted to show that fact. There was *360 nothing adjudged in the former action in the finding that the plaintiff had not made such proof in that case which can preclude the present plaintiff from making such proof here. The fact that a party may not have shown that he gave value for one bond or coupon is not even presumptive, much less conclusive, evidence that he may not have given value for another and different bond or coupon. The exclusion of the evidence offered by the plaintiff was erroneous, and for the ruling of the court in that respect the judgment must be reversed and a new trial had. **8 Upon the second question presented, we think the court below ruled correctly. Evidence showing that the action of Smith was brought for the sole use and benefit of the present plaintiff was, in our judgment, admissible. The finding that Smith was the holder and owner of the coupons in suit went only to this extent, that he held the legal title to them, which was sufficient for the purpose of the action, and was not inconsistent with an equitable and beneficial interest in another. Judgment reversed, and cause remanded for a new trial.

Janz N. Serrano before their maturity, and that he paid value for the same at the time of the transfer; that the bonds and coupons were issued by the county under and by virtue of a legal and competent authority, and that the same are valid and legal claims against the corporation. **8 Most of the allegations of the declaration were denied in the answer; but the defendants did not specifically deny that the plaintiff paid value for the coupons at the time he became the holder and owner. Special findings of the facts were made by the court, from which it appears that the question whether a court-house should be built, and whether a tax sufficient to liquidate the expense should be levied, were duly submitted to the voters of the county; that the propositions were adopted at a special election held for the purpose; that the county judge made the contract for the erection of the court-house; and that he duly executed the ten bonds in question, and delivered the same to the contractor, in pursuance of the contract. Proof of a satisfactory character was exhibited that the contract between the judge and the contractor was made in the county where the judge resided: but the court found that the bonds were signed, sealed, and delivered by the judge during his temporary absence in another county; and the findings show that the plaintiff became the owner and holder of the coupons before maturity and after the proceedings were correctly entered in the minute-book; nor is it found that the plaintiff had any notice whatever of the supposed irregularities. **9 Evidence of fraud in the inception of the contract is entirely wanting, except what may be inferred from the unexplained fact that the contractor gave one of the bonds, as a gratuity, to the county judge as soon as he delivered the same to the contractor. Beyond all doubt, the contractor proved to be unworthy, as he never performed his contract, or paid back the consideration. Judgment was rendered for the defendants in the court below; and the majority of this court affirmed the judgment, *362 holding that the evidence showed that the bonds were fraudulent in their inception, and that the plaintiff could not recover, inasmuch as he did not prove affirmatively that he paid value for the bonds. **9 Authorities are not necessary to show that the transferee of a negotiable instrument made payable to bearer, subsequent to its date, holds it clothed with the presumption that it was negotiated to him at the time of its execution, in the usual course of business and for value, and without notice of any equities between the prior parties to the instrument. Goodman v. Harvey, 4 A. & E. 870; Goodman v. Simonds, 20 How. 365; Noxon v. De Wolf, 10 Gray, 346; Ranger v. Cary, 1 Met. 373. Coupons are written contracts for the payment of a definite sum of money on a given day, and, being drawn and executed in a

MR. JUSTICE CLIFFORD dissenting.

**8 Ten bonds, each for the sum of $1,000, were issued by the county for the purpose of erecting a court-house in the county seat of the county; and it appears that the bonds were made payable to bearer, one each succeeding year, till the whole were paid, with interest at the rate of ten per cent per annum. Four of the bonds are the subject of the present controversy, and the defence is the estoppel of a prior judgment in favor of the county in a suit brought to collect certain of the interest warrants annexed to the bonds. Sufficient appears to show that the bonds were in due form, and that they contain the recital that they were issued by the county, in accordance with the vote of the legal voters thereof, at a special election holden on the day therein mentioned, pursuant to a proclamation made by the county judge, according to the statute of the State in such case made and provided. Annexed to the bonds were the coupons for the payment of the annual interest, and the plaintiff in the prior suit, being *361 the holder of twenty-five of the coupons, instituted the suit to recover the amount, and he alleged in his declaration that he was the holder and owner of the same; that he received the coupons in good faith

given mode, for the very purpose that they may be separated from the bonds, it is held that they are negotiable, and that a suit may be maintained on them without the necessity of producing the bonds to which they were attached. Knox County v. Aspinwall, 21 How. 544; White v. Railroad, 21 id. 575; Aurora v. West, 7 Wall. 105; Murray v. Lardner, 2 id. 121. P Possession of the instrument is plenary evidence of title age | 13 until other evidence is produced to control it, the holder being entitled to the same privileges and immunities as an indorsee of a bill of exchange or promissory note payable to bearer or indorsed in blank. He is not subject to any equities as between the promisor and original payee, nor to the set-off of any debt, legal or equitable, which the latter may owe to the former. Pettee v. Prout, 3 Gray, 503. Title and possession are one and inseparable to clothe the instrument with the prima facie presumption that it was indorsed at the date of its execution, and that the holder paid value for it, and received it in good faith in the usual course of business, without notice of any prior equities. Evidence to show that he paid value for the instrument is unnecessary in the opening of his case; but the defendant may, if he can, give evidence that the consideration was illegal, that the instrument was fraudulent in its inception, or that it had been lost or stolen *363 before it was negotiated to the plaintiff; and, if the defendant proves such a defence, it will follow that it must prevail, unless the plaintiff proves that he gave value for the instrument in the usual course of business, in which event he is still entitled to recover. Fitch v. Jones, 5 El. & Bl. 238; Smith v. Braine, 16 Q. B. 243; Hall v. Featherstone, 3 Hurls. & Nor. 287. **10 Applying that rule to the case as it was first presented, it would seem that the plaintiff should have prevailed, as it is clear that the defendant did not give any sufficient evidence to show that the consideration of the instruments was illegal, or that they were fraudulent in their inception, or that they had been lost or stolen before the plaintiff became the holder of the same, without notice of any prior equities. Suffice it to remark, in this connection, that these views were urged against the former judgment; but they did not prevail, and the judgment was rendered for the defendant, which is unreversed and in full force. Suit is now brought upon the bonds to which those coupons were attached, and the sole question of any importance is whether the judgment in the former case is a bar to the present suit. Nothing can be more certain in legal decision than the proposition that the title to the bonds and coupons are the same, as the coupons were annexed to the bonds when the bonds were executed and delivered to the original holder, in pursuance of the contract for building the court-house; and it is equally certain, that if it could be proved in defence that the consideration was illegal, or that the instruments were fraudulent in their inception, or that they

had been lost or stolen before they were negotiated to the holder, the defence would apply to the bonds as well as the coupons. Before proceeding to examine the legal question, it should be remarked that the former suit was prosecuted in the name of a different plaintiff; but the theory of the present defendants is that the present plaintiff was the real owner of the coupons in that action, and that the action was prosecuted for his sole use and benefit. Testimony to prove that theory was offered in the court below, and the majority of the court now hold that evidence to prove that proposition was properly admitted. Assume that to be so, and it follows that the parties, in legal *364 contemplation, are the same; nor can it be denied that the cause of action, within the meaning of that requirement, as expounded and defined by decided cases of the highest authority, is the same as that in the former action, the rule being that the legal effect of the former judgment as a bar is not impaired, because the subject-matter of the second suit is different, provided the second suit involves the same title and depends upon the same question. Outram v. Morewood, 3 East, 346. **10 Holders of negotiable securities, as well as every other plaintiff litigant, are entitled to a full trial upon the merits of the cause of action; but if in such a trial judgment be rendered for the defendant, whether it be upon the verdict of a jury or upon a demurrer to a sufficient declaration, or to a material pleading involving the whole merits, the plaintiff can never after maintain against the same defendant or his privies any similar or concurrent action for the same cause, upon the same grounds as those disclosed in the first declaration, for the reason that the judgment, under such circumstances, determines the merits of the controversy, and a final judgment deciding the right must put an end to the dispute, else the litigation would be endless. Rex v. Kingston, 20 State Trials, 588; Kitchen v. Campbell, 2 W. Bl. 831; Clearwater v. Meredith, 1 Wall. 43; Ricardo v. Garcias, 12 Cl. & Fin. 400. **11 Allegations of an essential character may be omitted in the first declaration and be supplied in the second, in which event the judgment on demurrer in the first suit is not a bar to the second, for the reason that the merits of the cause as disclosed in the second declaration were not heard and decided in the first action. Gilman v. Rives, 10 Pet. 298; Richardson v. Barton, 24 How. 188; Aurora City v. West, 7 Wall. 90. Where the parties and the cause of action are the same, the prima facie presumption is that the questions presented for decision were the same, unless it appears that the merits of the controversy were not involved in the issue, the rule in such a case being that where every objection urged in the second suit was open to the party within the legitimate scope of the pleadings in the first suit, and that the whole defence might have been presented in that trial, the matter must be considered as having passed in rem judicatam, and the former judgment *365 in such a case is

Janz N. Serrano conclusive between the parties. Outram v. Morewood, 3 East, 358; Greathead v. Broomley, 7 Term, 452. **11 Except in special cases, the plea of res judicata applies not only to points upon which the court was actually required to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of the issue, and which the parties, exercising reasonable diligence, might have brought forward at the time. 2 Taylor, Evid. sect. 1513. Other text-writers of high authority substantially concur in that view; as, for example, Mr. Greenleaf says that the rule should apply only to that which was directly in issue, and not to every thing which was incidentally brought into controversy during the trial; and the reason given for that limitation is worthy of notice, which is, that the evidence must correspond with the allegations, and be confined to the point in issue; and he remarks that it is only to the material allegations of one party that the other can be called to answer, for to such alone can testimony be regularly adduced, and upon such an issue only is judgment to be rendered. Pursuant to those suggestions, he states his conclusion as follows: A record, therefore, is not held conclusive as to the truth of any allegations which were not material nor traversable, but as to things material and traversable it is conclusive and final. Unless the court, in rendering the former judgment, was called upon to determine the merits, the judgment is never a complete bar; and it is safe to add, that, if the trial went off on a technical defect, or because the debt was not yet due, or because the court had not jurisdiction, or because of a temporary disability of the plaintiff or the like, the judgment will be no bar to a future action. 1 Greenl. Evid. sect. 330. **12 Since the resolution in Ferrer's Case, 6 Coke, 7, the general principle has always been conceded, that, when one is barred in any action, real or personal, by judgment or demurrer, confession or verdict, he is barred as to that or a similar action of the like nature for the same thing for ever. Demurrer for want of equity in such a case is allowed in chancery, because the whole matter in controversy is open in the first suit. Contrary to that rule, a party brought a second bill of complaint, *366 and the Vice-Chancellor, in disposing of the case, expressed himself as follows:-**12 Where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because the party has, from negligence, omitted part of his case. And he added that the plea of res judicata applies, except in special cases, not only to points upon

age | 14

which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. Henderson v. Henderson, 3 Hare, Ch. 115; Bagot v. Williams, 3 B. & C. 241; Roberts v. Heine, 27 Ala. 678; Safford v. Clark, 2 Bing. 382; Miller v. Covert, 1 Wend. 487. P When a fact has been once determined in the course of a judicial proceeding, say the Supreme Court of Massachusetts, and final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done; and they proceed to say that the estoppel is not confined to the judgment, but extends to all facts involved in it, as necessary steps, or the groundwork upon which it must have been founded. Burlen v. Shannon, 99 Mass. 203; Queen v. Hartington, 4 El. & Bl. 794; Gilbert v. Thompson, 9 Cush. 349. Extended explanations upon the subject of estoppel by a prior judgment were made by this court nearly twenty years ago, by a judge very competent to perform that duty. Steam Packet Company v. Sickles, 24 How. 342. Such a judgment, he said, in order that it may operate as an estoppel, must have been made by a court of competent jurisdiction upon the same subjectmatter between the same parties for the same purpose. He then proceeded to describe the cause of action in that case, *367 which, as he stated, was a sum of money, being a part of the consideration or price for the use of a valuable machine for which the plaintiffs had a patent; that the sum demanded was the complement of a whole, of which the sum demanded in the declaration in the former suit is the other part. Both declarations contained similar special counts; and the court remarked, that a decision in the one suit on those counts in favor of the plaintiffs necessarily included and virtually determined the sufficiency of the declaration to sustain the title of the plaintiffs, and showed that the record was admissible in evidence. **13 Different views were entertained by the defendants, and they submitted the proposition that a judgment was not admissible in evidence as an estoppel, unless the record showed that the very point it is sought to estop was distinctly presented by an issue, and that it was expressly found by the jury; but the court remarked, that such a rule would be impracticable, as it would restrict the operation of res judicata within too narrow bounds, and the court decided that it was not necessary as between parties and privies that the record should show that matter of the estoppel was directly in issue, but only that the said matter in controversy might have been litigated, and that extrinsic evidence would be admitted to prove that the particular question was material and was in fact contested, and that it was referred to the decision of the jury. Attempt was made in that case to maintain the proposition that the judgment in the first suit could not be held to be an

estoppel, unless it was shown by the record that the very point in controversy was distinctly presented by an issue, and that it was explicitly found by the jury; but the court held otherwise, and expressly overruled the proposition, although the defence of estoppel failed for other reasons. Two notes, in another case, were given by the purchaser of a vessel to the vendor of the same, and payment of the first note being refused, the payee sued the maker; and the maker, at the trial, set up as a defence that the vessel was rotten and unseaworthy at the time of sale, and that those facts were known to the plaintiff. They went to trial, and the verdict and judgment were for the defendant. Subsequently the plaintiff sued *368 the other note, and the defendant set up the judgment in the other case as a bar to the suit; and the Supreme Court of New York sustained the defence, holding that the former judgment, whether pleaded as an estoppel or given in evidence under the general issue, was conclusive that the sale was fraudulent, and that the plaintiff could not recover in the second action. Gardner v. Buckbee, 3 Cow. 127. **13 Certain sums of money, in a later case, were paid by a surety on two bonds given by an importer, in which the plaintiff and defendant were sureties. They were jointly liable; but the plaintiff paid the whole amount, and brought suit against the other surety for contribution. Service was made; and the defendant appeared and set up the defence that he had been released, with the consent of the plaintiff, before the payment was made; and the court sustained the defence upon demurrer, and gave judgment for the defendant. Moneys were also paid by the same surety to discharge the liability under the second bond. Contribution being refused, the plaintiff brought a second suit, and the defendant set up the former judgment as a bar; and the court sustained the defence, it appearing that both bonds were given at the same time upon the same consideration, and as part of one and the same transaction. Bouchard v. Dias, 3 Den. 243. **14 Neither of the second suits in the two preceding cases were for the same cause of action as the first, but the defence was sustained as in Outram v. Morewood, 3 East, 358, because the suit was founded upon the same title. Cases of that kind are quite numerous, and they show to a demonstration that a judgment may be a bar if the same title is involved, even though the cause of action may be founded on a different instrument, or for a different trespass upon the same premises. Conclusive support to that proposition is found in repeated decisions, of which the following are striking examples: Burt v. Sternburgh, 4 Cow. 563; Whittaker v. Jackson, 2 Hurlst.& Colt. 931; Strutt v. Bovingdon, 5 Esp. 59.

Janz N. Serrano In order to make a judgment conclusive, it is not necessary, said Mr. Justice Bigelow, that the cause of action should be the same in the first suit as that in which the judgment is pleaded *369 or given in evidence, but it is essential that the issue should be the same. The judgment is then coextensive with the issue on which it is founded, and is conclusive only so far as the same fact or title is again in dispute. Merriam v. Whittemore, 5 Gray, 317. **14 Decided cases in that State to the same effect are numerous, the highest court of the State holding that it is well settled that a judgment in a former suit between the same parties is a bar to a subsequent action only when the point or question in issue is the same in both; that the judgment is conclusive in relation to all matters in the suit which were put in issue, but has no effect upon questions not involved in the issue, and which were neither open to inquiry nor the subjects of litigation. Norton v. Huxley, 13 id. 290. Damages were claimed by the plaintiff for the loss of his shop by fire communicated to it by the defendants' locomotive engine, and he recovered judgment for the injury. He subsequently brought a second suit, for the loss of his dwelling-house and shed by fire, it appearing that the house and shed took fire from the shop. Process being served, the defendants appeared and set up the former judgment as a bar. The court sustained the defence, holding that the plaintiff did not show any right to maintain another action merely by proving his omission to produce upon the trial all the evidence which was admissible in his behalf, and that having chosen to submit his case upon the evidence introduced, he was bound to abide by the verdict and judgment in the first suit. Trask v. Railroad, 2 Allen, 332. Where a party took a bill of sale of property from the owner, and the same was subsequently attached by an officer at the suit of the creditors of the former owner, and the purchaser under the bill of sale having converted part of the property to his own use was sued by the officer, and the latter recovered judgment upon the ground that the bill of sale was fraudulent and void as to the creditors, it was held that the judgment was a bar to a subsequent suit of replevin commenced by the grantee in the bill of sale for the residue of the property in the hands of the officer. Doty v. Brown, 4 Comst. 75. **15 Beyond question, the bar is not defeated because the subjectmatter *370 of the second suit is different from the first, if it be founded on the same title; and the Supreme Court of Pennsylvania have held, in accordance with that view, that a judgment in trespass upon a traverse of liberum tenementum estops the party against whom it has been rendered, and his privies, from afterward controverting the title to the same freehold in a subsequent action of trespass. Stevens v. Hughes, 31 Penn. St. 385; Hatch v. Garza, 22 Tex. 187; Clark v. Sammons, 12 Iowa, 370.

Janz N. Serrano **15 Tested by these several considerations, it is clear that a former judgment is a bar in all cases where the matters put in issue in the first suit were the same as the matters in issue in the second suit. Ricardo v. Garcias, 12 Cl. & Fin. 401; Beloit v. Morgan, 7 Wall. 623. It results from these authorities that an adjudication by a competent tribunal is conclusive, not only in the proceeding in which it is pronounced, but in every other where the right or title is P age | 15 the same, although the cause of action may be different. 2 Smith, Lead. Cas. (7th Am. ed.) 788, 789; Bigelow on Estoppel (2d ed.), 45; Aurora City v. West, 7 Wall. 96; Outram v. Morewood, 3 East, 346; Gould v. Railroad Company, 91 U. S. 526. Grant that, and still it is suggested that the plaintiff in the suit on the coupons did not introduce evidence to prove that he paid value for the bonds with the coupons; but the answer to that is, that he might have done so. He alleged in the declaration that he paid value, and consequently he might have given evidence to prove it, which shows that the question was directly involved in the issue between the parties. Doubtless the plaintiff neglected to give evidence in that behalf, for the reason that he and his counsel were of the opinion that the evidence introduced by the defendants was not sufficient to repel the prima facie presumption, arising from his possession of the instruments, that he paid value for the transfer, and I am still of that opinion; but the remedy of the plaintiff, if surprised, was to except to the ruling, or to submit a motion for new trial. Suggestions of that sort are now too late, nor are they sufficient to modify the effect of the judgment. When once finally rendered, the judgment must be considered conclusive, else litigation *371 will be endless. Litigants sometimes prefer not to bring forward their whole case or defence, in order to enjoy the opportunity to bring up a reserve in case of defeat in the first contest; but a rule which would sanction that practice would be against public policy, as it would enable a party to protract the litigation as long as he could find means or credit to compel the attendance of witnesses and to secure the services of counsel. U.S.,1876 Cromwell v. County of Sac. 94 U.S. 351, 4 Otto 351, 1876 WL 19560 (U.S.Iowa), 24 L.Ed. 195 END OF DOCUMENT

EDMUND V. SAWYER et al., Plaintiffs and Appellants, v. FIRST CITY FINANCIAL CORPORATION, LTD., et al., Defendants and Respondents. P Civ. No. 24043. Court of Appeal, Fourth District, Division 1, California. Oct 8, 1981.

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SUMMARY

The trial court granted summary judgment in favor of all defendants in an action for fraud, conspiracy and intentional interference with contractual relation. The action was brought by the sellers of certain real property against the purchasers and encumbrancers of the land who sought to develop it, the bank which was the development lender, and certain bank officers, in order to recover damages (following foreclosure by the bank) for the unpaid balance of the note secured by deed of trust in the sale to the purchasers. Summary judgment was denied to the bank and bank officers on the basis of the res judicata effect of a prior suit by the sellers, against the same defendants, to recover the balance of the unpaid note but based upon contractual theories. Judgment in such prior suit had been rendered in favor of the purchasers, with a written release removing the bank from the case before such prior trial. However, summary judgment was granted as to the bank only upon the ground of the written release. In a separate and later motion for summary judgment by the purchasers and encumbrancers, in which the bank officers joined and which was heard before a diffferent judge, the trial court ruled in favor of all defendants on the ground of res judicata and, as to the bank officers, on the basis of the written release. The sellers had sought to consolidate their tort action with the previously filed contract action, and had moved for continuance of the prior action in order to do so, but defendants had successfully opposed the motion, arguing the differences in the issues as well as the fact the matter had been scheduled for trial nine days later. (Superior Court of San Diego County, No. 409803, Douglas R. Woodworth and Franklin B. Orfield, Judges.) The Court of Appeal affirmed the judgment of dismissal as to the bank and bank officers on the basis of the release, but reversed the judgment of dismissal of all other parties, due to the inapplicability of the res judicata defense. The court held res judicata was not available as to any defendants, since the attempted second litigation did not involve a violation of the same primary right of the sellers' first action, and thus such did not constitute a splitting of their cause of action. In so ruling, the court held the first action was solely on the contract and was based upon the note, deed

of trust, and loan and development agreement. Although the second suit had as its object collection of the same promissory note, the basis of the claim was completely different, rested upon a completely separate set of facts, and highlighted other conduct of the parties alleged to be tortious. However, the court also held the moving parties were not estopped from denying the separate nature of the two causes of action, although the purchasers had opposed the motion for continuance, considering the matter had been ready for trial, had been delayed previously, and should not have been delayed further. The court also held it was not an abuse of discretion to grant summary judgment to the bank due to the written release, since the scope of the release was very broad, and since the trial court was warranted in determining that the bank had not engaged in any tortious activities against the sellers after the date of the release. However, the court held the release also applied to the bank officers, since the only logical interpretation of the release was that the parties intended not only to release the bank, but to insulate its employees against claims relating to the same transaction. (Opinion by Froehlich, J.,FN* with Staniforth, Acting P. J., concurring. Separate concurring opinion by Wiener, J.) FN* Assigned by the Chairperson of the Judicial Council.

Janz N. Serrano before such prior trial. However, the attempted second litigation did not involve the violation of the same primary right as the sellers' first action, and thus such did not constitute a splitting of their cause of action. The first action was solely on the contract and was based upon the note, deed of trust, and loan and development agreement. Although the second suit had as its object the collection of the same promissory note, the basis of the claim was completely different, resting upon a completely separate set of facts and highlighting other conduct of the parties alleged to be tortious. [See Cal.Jur.3d, Actions, 70-74; Am.Jur.2d, Actions, 127 et seq.] (3) Actions and Special Proceedings 19--Splitting Causes of Action-- Waiver and Estoppel--Opposition to Consolidation of Cases. In an action for fraud, conspiracy and intentional interference with contractual relation, brought by the sellers of certain real property against the purchasers and encumbrancers of the land who sought to develop it, the bank which was the development lender, and certain bank officers, in order to recover damages (following foreclosure by the bank) for the unpaid balance of the note secured by deed of trust in the sale to the purchasers, the trial court did not err in refusing to estop defendants from denying the separate nature of such action and a prior action. Plaintiffs had previously brought an action against the same defendants to recover the balance of the unpaid note, but based upon contractual theories. Judgment in such prior suit had been rendered in favor of the purchasers, with a written release removing the bank from the case before trial. Although the purchasers had opposed a motion for continuance in the prior action, which would have allowed the sellers to bring a motion for consolidation of the two matters, the record revealed the first matter had been ready for trial, had been delayed previously, and should not have been delayed further. Moreover, no express argument had been made, nor had consideration been given, as to the question of the res judicata effect of the trial with respect to the subsequent and pending lawsuit. (4) Compromise, Settlement, and Release 9--Compromise and Release-- Construction, Operation, and Effect--Scope of Release. In an action for fraud, conspiracy and intentional interference with contractual relation, brought by the sellers of certain real property against the purchasers and encumbrancers of the land who sought to develop it, the bank which was the development lender, and certain bank officers, in order to recover damages (following foreclosure by the bank) for the unpaid balance of the note secured by deed of trust in the sale to the purchasers, the trial court did not abuse its discretion in granting summary judgment to the bank upon the basis of a written release. The release had been executed by the sellers in favor of the bank in a prior action to recover the unpaid balance of the note from the same defendants, but based upon contractual theories. The scope of release was very broad, and thus the trial court was warranted in determining the bank did not engage in tortious activities against

HEADNOTES

Classified to California Digest of Official Reports

(1) Actions and Special Proceedings 18--Splitting Causes of Action--Final Judgment--Bar to Further Litigation. A valid final judgment on the merits in favor of a defendant serves as a complete bar to further litigation on the same cause of action. (2) Actions and Special Proceedings 18--Splitting Causes of Action--Res Judicata--Action on Contract Followed by Tort Action-Separate Primary Rights. In an action for fraud, conspiracy and intentional interference with contractual relation, brought by the sellers of certain real property against the purchasers and encumbrancers of the land who sought to develop it, the bank which was the development lender, and certain bank officers, to recover damages (following foreclosure by the bank) for the unpaid balance of the note secured by deed of trust in the sale to the purchasers, the trial court erred in granting summary judgment as to all defendants on the basis of res judicata. A prior suit by the sellers against the same defendants, to recover the balance of the unpaid note but based upon contractual theories, resulted in judgment in favor of the purchasers, with a written release removing the bank from the case

the sellers after the date of such release. However, the court erred in refusing to grant summary judgment to the bank officers, based upon the release, since the only logical interpretation of the release was the parties intended not only to release the bank, but to insulate its employees against claims relating to the same transaction (which was the basis of the sellers' tort action). Furthermore, it was necessary the case be dismissed as to the bank P age | 17 officers, although they did not raise such issue on appeal, since another judge had later granted their motion for summary judgment, based upon the release. Even if such had constituted a pocedural error, once the final judgment had been rendered all issues in the case were then on appeal. (5) Discovery and Depositions 34--Protections Against Improper Discovery--Privileges--Attorney-client Privilege--Discretion of Trial Court. In an action for fraud, conspiracy and intentional interference with contractual relation, brought by the sellers of certain real property against the purchasers and encumbrancers of the land who sought to develop it, the bank which was the development lender, and certain bank officers, in order to recover damages (following foreclosure by the bank) for the unpaid balance of the note secured by deed of trust in the sale to the purchasers, the trial court did not err in denying the sellers' motion to compel additional answers to certain written interrogatories and questions at depositions in which the attorney-client privilege was asserted. It could not be concluded that such constituted an abuse of discretion. Although facts involved in a lawsuit are not insulated from discovery simply because they have been communicated to counsel, the trial court has broad discretion in ruling on motions to compel discovery and such exercise of discretion will not be reversed unless it has been manifestly abused and the facts justifying discovery are clear. COUNSEL Weissman, Johns & Gamer and Peter P. Gamer for Plaintiffs and Appellants. Seltzer, Caplan, Wilkins & McMahon, Gerald L. McMahon, James B. Person, Orrick, Herrington & Sutcliffe, William L. Riley, George A. Yuhas, Platt, Tebbetts & Peterson, Harold F. Tebbetts, Linda E. Boelhauf and Sanford R. Demain for Defendants and Respondents. FROELICH, J.FN*

Sawyer I and Sawyer II. Each case arises from the same general factual background. *395

Factual Background The principal parties to both cases are the plaintiffs Sawyer, owners and sellers of land; the defendants First City Financial Corporation, Ltd. (First City) and its subsidiaries, purchasers and encumbrancers of the land who sought to develop it; and Toronto Dominion Bank of California, the development lender to First City's subsidiary. The broad brush of facts is that in May of 1974 the Sawyers sold 32 acres of land in La Jolla, California, to the subsidiary of First City-F. C. Financial Associates, Ltd.-for $1,180,000 consisting of $510,000 in cash and a note secured by deed of trust in the sum of $670,000. Concurrently with the sale, F. C. Financial Associates committed to borrow $1.8 million in the form of a development loan from Toronto Dominion Bank. This loan was guaranteed by First City and was secured by a first deed of trust on the realty, the Sawyers specifically subordinating their deed of trust to the new encumbrance. The Sawyers as part of the sales documents specifically waived any deficiency judgment with respect to their note and deed of trust, with the result that after the sales and refinancing escrows closed their sole resource for collection of their $670,000 note was foreclosure on their deed of trust, now subordinate to a $1.8 million first deed of trust to the Bank. Early in 1975, F. C. Financial Associates discontinued payments on the note to Toronto Dominion Bank, asserting that it could not proceed further with development of the land because the construction bids it had received were excessively high. Total amounts owed on the note at that time approximated $900,000. Toronto Dominion Bank commenced nonjudicial foreclosure proceedings on April 1, 1975, and purchased the land at foreclosure sale in September 1975, for its bid of $650,000. The land was ultimately transferred in December 1976 to Lexington Properties, Inc., a corporation owned by one Richard Ehrlich, for a purchase price of some $800,000. The Sawyers contend in pleadings and other documentation that at the time of the foreclosure sale Toronto Dominion Bank had agreed to resell the realty to First City for a price equal to the bank's total investment in it, but that this transfer was delayed until the sale to Ehrlich and his corporation could be arranged, so that neither First City nor its subsidiary again appeared as record titleholder. Ehrlich and his corporation obtained development funds for the property from a corporation called Lomitas Properties, Inc., which is a corporation owned and controlled *396 by the majority stockholders, directors and officers of First City, and which derived its funds from First City.

Janz N. Serrano Appellant's view of the facts, therefore, is that the Sawyers were induced to take a nonrecourse note for more than half the consideration involved in the sale of their land, the security for which note was made subject to a large development loan. The development borrower then defaulted on the note and arranged with the development lender to foreclose, to buy in at the foreclosure sale, and to resell to the development borrower for the amount of the foreclosure sales price plus the balance of the loan guarantee. The practical effect of this transaction, it is alleged, was to wipe out the obligation to the Sawyers and permit First City to proceed with sale or development of the land without having to pay $650,000 of the purchase price. In order to avoid airing the mechanics of the transaction, the agreement between the Toronto Dominion Bank and First City was kept secret, and the resale to First City was not recorded, the ultimate purchaser being a puppet of First City set up in an apparently independent corporation, borrowing funds from a new and anonymous lending company, but actually deriving development funds indirectly from First City. We are alert to caution that the above construction of the facts from and after the foreclosure sale is that alleged by the plaintiffs, who seek the opportunity of proving same in a full-scale evidentiary trial.

Legal Proceedings Sawyer I Sawyer I was commenced in July of 1975. The defendants were F. C. Financial Associates, its parent First City, and, later, another subsidiary of First City (all sometimes called herein Financial); and Toronto Dominion Bank of California (Bank). The several causes of action all were based upon contractual theories. Reference was made to the land acquisition and development loan agreement executed between Financial and Bank, which provided for the construction of a planned residential development in accordance with an existing permit. The Sawyers alleged that they were third party beneficiaries of that agreement and had been damaged by the failure of Financial to perform in accordance with it. The breach is alleged not only as a simple breach of contract, but as a breach by the defendants of a contractual duty of good faith and fair dealing. A separate cause of action asks for declaratory relief with respect to the contractual commitments; and a *397 final cause of action seeks judicial foreclosure of the Sawyer note. The monetary relief prayed for was the amount of the note ($674,500) plus attorney fees. The case was tried in February of 1978. By stipulation the issues were severed for trial and dispositive issues were presented to a judge, sitting without jury. The judgment rendered in March of 1978, focused upon the issue of the validity of the waiver by Sawyers of their right to a deficiency judgment. This waiver was found to be effective and judgment was rendered in favor of all

FN* Assigned by the Chairperson of the Judicial Council. Plaintiffs appeal from adverse summary judgment rulings in favor of all defendants. An understanding of the litigation requires an analysis of two separate cases involving essentially the same parties, of which the present appeal relates specifically to the second. For reference purposes these two cases will be called

defendants on all causes of action. Following affirmance on appeal, the judgment became final in December of 1979.

Sawyer II age | 18 P Sawyer II was filed in January of 1978. Entitled Complaint for Damages Based Upon Conspiracy and Fraud, it joined as defendants all of the parties named in Sawyer I and in addition the ultimate purchaser Ehrlich and his corporation, Lexington Properties; the new financier of the development, Lomitas Properties; and a number of officers and directors of the Financial companies and the Bank. Three of the causes of action of this new lawsuit are based upon an alleged conspiracy among the defendants to cause a default in the Bank's note and trust deed, hold a sham sale, and take other action for the purpose of eliminating the obligation to the Sawyers. The only essential difference in the three causes of action is the date of commencement of the alleged conspiracy-one alleging the evil motives from the very start of the land acquisition transaction, a second alleging commencement of the conspiracy when Financial defaulted on its note payments, and a third alleging commencement of the conspiracy at the time of the foreclosure sale. The fourth cause of action uses the same factual allegations as the basis for a claim of intentional interference with contractual relation (Financial's note obligation to the Sawyers). Damages alleged are the same as in Sawyer I except that additional punitive damages are sought. The procedural history of Sawyer II is detailed as follows: 1. Promptly upon filing Sawyer II, counsel sought to consolidate with Sawyer I, and moved for a continuance of the trial of Sawyer I. This motion was opposed by the defendants, who objected because the issues and causes of action of Sawyer II were different from those of Sawyer *398 I, and also because the case, then pending for two and one-half years, was scheduled for trial nine days later. The court denied a motion to continue the trial of Sawyer I, and it was tried without consolidation with Sawyer II. 2. In January of 1980, the Bank and its officers moved for summary judgment in Sawyer II upon the ground of the res judicata effect of Sawyer I, and also upon the basis of a written release which had been executed in favor of the Bank in Sawyer I-removing the Bank from the case before its trial. The Honorable Douglas Woodworth denied the motion based upon res judicata, but granted the motion as to the Bank only, upon the ground of the written waiver. The bank officers moved for reconsideration on the theory that the waiver should be construed to cover them as well as the Bank, and this motion was taken under submission by the judge in March of 1980. On July 24, 1980, Judge Woodworth denied the motions by written minute order.

3. In May of 1980, a separate motion for summary judgment was filed by the Financial corporations on the ground that Sawyer I was res judicata to the issues of Sawyer II-that the plaintiffs had split their cause of action by attempting to relitigate the same issues in a second lawsuit. The bank officers (whose motion for reconsideration was then pending before Judge Woodworth) joined in this motion, and it was set for hearing before the Honorable Franklin B. Orfield. On July 25, 1980, Judge Orfield ruled in favor of all defendants on the ground of res judicata and the enforceability of the Bank's written release in Sawyer I.

The Appeal Appellants appeal from the summary judgments of both Judge Woodworth (dismissing the Bank) and Judge Orfield (dismissing all parties), and also from a discovery ruling (described infra.). Many bases of appeal are urged: The central and most important issue, however, is the question of res judicata. As reviewed in 3 Witkin, California Procedure (2d ed. 1971) Pleading, section 32 et seq., page 1715, a single cause of action cannot be split and made the subject of several suits. If a primary right is so split, determination of the issues in the first suit will be res judicata to the attempt to relitigate them in the second suit. Where the plaintiff has several causes of action, however, even though they may arise from the same factual setting, and even though they might have been joined in one suit under permissive joinder provisions, *399 the plaintiff is privileged to bring separate actions based upon each separate cause.

Janz N. Serrano from personal injury has been construed as to embrace all theories of tort which might have given rise to the injury. In Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636 [134 P.2d 242], the plaintiff was injured in a meat packing house. His first cause of action was based upon alleged negligence of the packing house in permitting third parties to come upon the premises and operate equipment. A defense judgment was then held to bar a second suit based upon an entirely different factual theory of negligence-that the defendant itself had negligently operated the equipment. In Slater v. Blackwood, supra., 15 Cal.3d 791, a defense judgment in a suit based upon violation of the guest statute (intoxication or willful misconduct) was held to bar a second suit (after the guest statute was held unconstitutional) based upon allegations of ordinary negligence. Other examples of torts resulting in easily conceptualized types of damages have been settled, one way or the other, by precedent. While one act of tortious conduct might well be deemed to violate only one primary right-the right to be free from the particular unlawful conduct-the resultant (1) injury to person and (2) damage to property *400 have been deemed creative of separate causes of action. On the other hand, one course of wrongful conduct which damages several pieces of property traditionally gives rise to only one cause of action. (See 3 Witkin, supra., at pp. 1720-1721, and cases cited therein.) Other classes of litigation, however, with perhaps less historical or precedential background, are not so well defined in terms of deciding how many primary rights derive from a single factual transaction. The tort in Agarwal v. Johnson (1979) 25 Cal.3d 932 [160 Cal.Rptr. 141, 603 P.2d 58], was unfair treatment of a minority race employee by an employer. Plaintiff's first action was in federal court for back wages under the authority of the federal Civil Rights Act. The state Supreme Court determined this was no bar to a second suit in superior court for general and punitive damages for defamation and intentional infliction of emotional distress. Although the same set of facts is presented in each claim, one primary right is created by the federal statute prohibiting discriminatory employment practices; and the second primary right is grounded in state common law. Also, the harm suffered was deemed separable-damages for lost wages in the federal action, and damages for injury to reputation and peace of mind in the state case. Compare Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441 [164 Cal.Rptr. 913], where the actionable facts consisted of an unlawful arrest of the plaintiff and his abuse in confinement. His first action in federal court under the authority of the Civil Rights Act was held to be a bar to a subsequent suit in state court for negligence, assault and battery. The court found that the primary rights giving rise to the state common law tort action were the same as those reflected in the Civil Rights Act, and that the civil rights action was simply a different way of expressing an invasion of the same primary rights or the assertion of a different legal theory for recovery. ( Id., at pp. 447-448.) In City of Los Angeles v. Superior Court (1978) 85 Cal.App.3d 143, 153 [149 Cal.Rptr. 320], a

Res Judicata Issue (1)A valid final judgment on the merits in favor of a defendant serves as a complete bar to further litigation on the same cause of action. ( Slater v. Blackwood (1975) 15 Cal.3d 791, 795 [126 Cal.Rptr. 225, 543 P.2d 593].) (2)The question in this and similar cases, of course, is whether the attempted second litigation involves the same cause of action. A cause of action is conceived as the remedial right in favor of a plaintiff for the violation of one primary right. That several remedies may be available for violation of one primary right does not create additional causes of action. However, it is also true that a given set of facts may give rise to the violation of more than one primary right, thus giving a plaintiff the potential of two separate lawsuits against a single defendant. (See 3 Witkin, supra., p. 1707 et seq.) The theoretical discussion of what constitutes a primary right is complicated by historical precedent in several welllitigated areas establishing the question of primary rights in a manner perhaps contrary to the result that might be reached by a purely logical approach. For instance, the primary right to be free

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federal civil rights action followed by a superior court common law tort action, both involving wrongful seizure of personal property, the appellate court reached the same conclusion and applied the bar of res judicata on the ground that the civil rights action was designed to vindicate precisely the same interests in ... personal property that (the plaintiff) seeks to vindicate in the matter before us. P One would assume that the question of litigation of claims arising from one transaction first on the basis of contract, and then on alleged tort theories, would have received substantial appellate attention. The *401 authorities, however, are surprisingly sparce. The Restatement of the Law, Judgments (1942) chapter 3, section 63, page 261, provides several illustrations involving actions to cancel a deed. A failure to sustain the first action on contractual grounds (i.e., failure of execution or delivery of the deed) is held to bar a subsequent action based upon fraudulent procurement-thus suggesting that the primary right is the right to cancel the deed (as applied to our case, to validate the note) and that this gives rise to only one cause of action, whether it be framed in contract or tort. Respondents rely upon two cases which purport to be illustrative of contract actions followed by separate tort actions, arising from the same transaction: Olwell v. Hopkins (1946) 28 Cal.2d 147 [168 P.2d 972]; and Steiner v. Thomas (1949) 94 Cal.App.2d 655 [211 P.2d 321]. The plaintiff's claim in Olwell resulted from farming operations carried on by a joint venture which included a Washington corporation. In the first suit the action was dismissed without a trial of the substantive issues on the ground that the corporation had never qualified to do business in California with the result that the contract upon which the suit was based was void. A second suit based upon the same transaction alleged fraudulent concealment of facts and prayed that the defendants be declared constructive trustees of certain realty. While this scenario would seem to pose a problem similar to that of the case before us, it was resolved without addressing the issue of the existence of separate causes of action in contract and for fraud. The court assumed (and presumably counsel did not argue to the contrary) that there was only one cause of action, and that the second suit was merely an alternative statement of that one cause of action. (See Olwell v. Hopkins, supra., 28 Cal.2d at pp. 149, 150.) The question directly addressed by the court was the effect of dismissal of the first suit without a trial on the merits, and whether such dismissal on procedural grounds would operate as a bar to a second action, recognizing that in order to constitute a bar, the dismissal must have been following 'an adjudication of the merits of the controversy, ...' ( Id., at p. 149.) In Steiner, two successive actions were brought against an administrator of a decedent's estate for the purpose of recovering a certain parcel of real property which had been transferred to the decedent by the plaintiff before the decedent's death. The first action was for rescission based upon fraud, alleging that the realty had been transferred so as to permit the decedent to collect rents

and that the decedent had promised to reconvey the property at a later date. The second lawsuit *402 was based upon an alleged breach of an agreement to devise the property to the plaintiff, as evidenced by two letters from the decedent to the plaintiff. The court resolved the question of res judicata against the plaintiff, focusing on the identity or similarity of facts litigated in the first suit as compared to those in issue at the second suit. The court stated: The fact is that in the former action the merits of all the facts were determined and relief was denied .... Upon presentation of the special plea in the instant action the court had merely to decide whether the facts alleged in the first suit for rescission of the contract were substantially those alleged in the second action for breach of the same contract. ( Steiner v. Thomas, supra., 94 Cal.App.2d at p. 658.) The court thus construed the situation as one in which alternative remedies in contract were successively brought-related to the same contract-rather than a case in which an action on contract was followed by an action for an intentional tort related to or as part of the transaction giving rise to the contract. Neither Orwell nor Steiner appears controlling. The case before us is not one in which the same factual structure is characterized in one complaint as a breach of contract and in another as a tort. The first action is solely on contract and is based upon the note, deed of trust, and loan and development agreement. At the time of trial the principal issue litigated was the effectiveness of the waiver of deficiency judgment, and this issue was presented in the context of contractual theories. There was no contention and no evidence was presented relating to a possible invalidation of the waiver on grounds of fraud, misrepresentation or any other tort. Sawyer II, of course, had as its object collection of the same promissory note which was the subject matter of Sawyer I; but the basis of the claim is completely different, and rests upon a completely separate set of facts. The complaint assumes and admits that the forms of the waiver of deficiency and the subordination are technically appropriate and enforceable. The pleading reaches beyond these documents, however, to highlight other conduct of the parties alleged to be tortious. The core of the alleged wrongful conduct is an agreement among the parties to conduct what is characterized as a sham foreclosure sale, the only substantive effect of which would be secretly to discharge the obligation to Sawyer, leaving all other parties in essentially the same position as prior to the sale. Surely one's breach of contract by failing to pay a note violates a primary right which is separate from the primary right not to have the note stolen. That the two causes of action might have been joined in one lawsuit under our permissive joinder provisions (see 3 *403 Witkin, supra., at p. 1915) does not prevent the plaintiff from bringing them in separate suits if he elects to do so. While the monetary loss may be measurable by the same promissory note amount, and hence in a general sense the same harm has been done in both cases, theoretically the plaintiffs have been harmed differently by tortious conduct destroying the value of the note, than by the contractual breach of simply failing to pay it.

Janz N. Serrano We conclude, therefore, that Sawyer II is based upon a separate and severable cause of action from that litigated in Sawyer I, and that it was error to grant summary judgment on the ground of res judicata.

Estoppel (3)A second prong to appellant's argument about the summary judgment ruling as respects res judicata is that the moving parties were estopped to deny the separate nature of the two causes of action because they had earlier opposed a motion to consolidate the two cases. Appellants rely upon United Bank & Trust Co. v. Hunt (1934) 1 Cal.2d 340 [34 P.2d 1001], where the court at page 345 stated: 'Where counsel by timely notice call to a court's attention the pendency of other proceedings covering kindred matters and strive to have the same embraced within the scope of the inquiry, and such attempt is successfully blocked by opposing counsel and the trial proceeds to the investigation of the specific issue before the court, counsel who were successful in preventing the consolidation of the issues cannot be heard later to object to a trial of the related matters upon the ground of res judicata. The course pursued by the court and counsel ... was tantamount to an express determination on the part of the court with the consent of opposing counsel to reserve the issues involved for future adjudication. [Citation.] Litigants cannot successfully assume such inconsistent positions.' The inconsistent position asserted to have been taken by defense counsel was at the time of the hearing of a motion to continue the trial of Sawyer I. Sawyer I was filed in July of 1975. Plaintiffs filed a memorandum that the case was at issue in February 1976. On January 6, 1977, a trial setting conference was held, and a settlement conference was scheduled for September 13, 1977, with trial scheduled for September 29, 1977. On September 12, 1977, plaintiffs filed a motion to continue the trial date, which was heard on September 19, 1977, and resulted in a continuance to February 15, 1978. On February 5, 1978, nine days before the continued trial date, plaintiffs brought another motion *404 for continuance of the trial, upon the ground that they had filed Sawyer II and wished to have time before the trial of Sawyer I to file and hear a motion for consolidation. At the hearing of the motion for continuance on February 6, counsel for the defendants did argue that the case should not be continued to permit consideration of a consolidation motion because consolidation would be improper by virtue of the different theories and causes of action in Sawyer II. However, no express argument was made about, nor consideration given, to the question of the res judicata effect of the prior trial of Sawyer I. In light of the long period of preparation for trial and the then once-continued trial date impending only nine days hence, the trial court presumably considered further continuance to be prejudicial to the rights of the defendants. A court is not required to grant a

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continuance of a trial when the pleadings have been completed, adequate time for discovery has been provided, the issues are joined, and one side is ready for trial, even though the moving party alleges newly discovered facts or newly found issues which suggest more discovery or an amendment to the pleadings. (See County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 783 [140 Cal.Rptr. 383].) P The reasonable interpretation to be derived from a review of the record in Sawyer I was that the court denied the motion for continuance because Sawyer I was ready for trial, had been delayed previously and should not be delayed further. Therefore, while we have determined that the motion for summary judgment should not have been granted on the ground of res judicata, we must agree with the trial court that the moving parties were not estopped by their prior conduct from making the motion.

1975; the alleged conspiratorial agreement was entered into in September 1975; extension agreements between the Bank and Financial continued throughout 1976 during which period the purchasing corporation, Lexington, was formed and funded; and title to the property was finally conveyed to Lexington and Ehrlich in December of 1976. In response to the Bank's contention that all events involved in the conspiracy had taken place by the time of the execution of the release, appellant points to a letter dated February 1, 1977, from the Bank to Financial enclosing a $300,000 note from Lexington made to the order of the Bank, which had been endorsed to Financial. Appellant suggests that this is evidence of division and distribution of the spoils of the conspiracy and has the effect of reopening the door of liability for all prior events. After considering this argument, the trial court stated: The summary judgment is granted in favor of the Bank. I do not think there are any inferences available from the declarations before the Court that would suggest a further subsisting course of conspiratorial conduct by the Bank after January 3, 1977. *406 I think the whole core of the Sawyer II lawsuit, the present lawsuit, was within the contemplation of the parties at the time that mutual release was entered into.

Janz N. Serrano must determine what inferences [are] reasonably deducible from [the] evidence. (Code Civ. Proc., 437c.) This is not simply a process of mechanical sifting of affidavits to determine whether a theoretical issue has been uncovered, regardless of how minor or remote. The trial court judge is entitled and required to utilize discretion in viewing and weighing questions of substance and materiality of asserted disputed facts. (See Larsen v. Johannes (1970) 7 Cal.App.3d 491, 507 [86 Cal.Rptr. 744]; cf. Sherman v. Mertz Enterprises (1974) 42 Cal.App.3d 769, 774 [86 Cal.Rptr. 744].) In reviewing the affidavits and factual matters before the trial court we conclude that its decision was warranted by the evidence, and that it did not abuse its discretion in granting the summary judgment. *407

Mutual General Release-Toronto Dominion Bank Officers While Judge Woodworth denied the motion of the two bank officers, Klugherz and McIntosh, for summary judgment based upon the release, Judge Orfield later included this as a ground for dismissal of the officers in his summary judgment. Having concluded that the release was effective insofar as the Bank is concerned, and the same evidence relating to the officers as pertained to the Bank, the officers are entitled to a dismissal if the release can be construed as a matter of law to cover them. The only parties to the release are the Sawyers and the Bank. The phraseology of the release is directed solely to the Bank. The contention that it embraces the bank officers is based upon the last paragraph of the document, which provides: This release shall bind the undersigned and inure to the benefit of the parties and their respective employees, administrators, personal representatives, successors and assigns .... Appellant argues that this paragraph is illogical and ambiguous. In its reference to successors and assigns, for instance, appellant suggests that the literal interpretation would be such as to insulate unknown and unidentifiable people from any nature of liability to the Sawyers by the simple expedient of their later becoming a successor to the Bank. As applied to the phrase employees, however, the clause is susceptible of only one interpretation. As appellant correctly points out, the word inure connotes the use of a right by one party which was granted another. The release in this case was a release of the Bank, and the benefits therefrom intended to inure to its employees can only be benefits related to their employment by the Bank. In other words, had the Sawyers a claim of some sort against Klugherz or McIntosh, unrelated to their employment by the Bank, that claim would not be embraced by the release. That, however, is not the case here. The employees are joined in Sawyer II by virtue of their employment for the Bank, and because of actions taken in the course of that employment. The conspiratorial acts of which the Bank is accused were, of course, carried out on its behalf by its employees. The only

Mutual General Release: Toronto Dominion Bank On January 3, 1977, the Sawyers and the Bank entered into a mutual release. The document was very broad in scope, releasing the Bank from all claims, demands, liabilities and causes of action which the parties ever had, now have, or may have against each other arising out of any fact or event occurring prior to the date of this agreement. Reference was made to the then pending Sawyer I, and the release provided that it includes but is not limited to the release by Plaintiffs of the Bank from the causes of action alleged by Plaintiffs in [Sawyer I]. The release further referenced and waived the provisions of *405 Civil Code section 1542, affirming it to be the intention of the parties to release all then existing claims, whether known or unknown. The existence of the release was the basis for Judge Woodworth's summary judgment in favor of the Bank. (4)Appellant does not contest the due execution and legal effect of the release, insofar as it pertains to tortious activities of the Bank prior to January 3, 1977. Appellant points, however, to the contention in Sawyer II that the various parties were involved in a conspiracy to defraud the Sawyers, and cites de Vries v. Brumback (1960) 53 Cal.2d 643 [2 Cal.Rptr. 764, 349 P.2d 532], for the proposition that one who joins a conspiracy is liable for all wrongful actions of the conspirators, even though they occurred before his commitment to the enterprise. Even though the prior wrongful acts of the Bank were wiped clean by the release of January 3, 1977, appellant argues, continued efforts by the Bank after January 3, 1977, renew its conspiratorial status and revive liability for the whole transaction. The trial court judge considered this argument and reviewed the dates of major occurrences in the transaction, which were as follows: The property was purchased in 1974; default on the Bank's note occurred early in 1975; the Bank filed a notice of default in April 1975; the trustee's sale occurred on September 4,

........... ... I think the proper analogy to the robbery case would be that if there were an immunity given by the District Attorney as to all matters arising out of a certain robbery on a certain date, then it would certainly be arguable that immunity would carry forward a little bit to the incidental activity of dividing up the loot among the robbers, if they'd already been given an overriding immunity against the consequences of the robbery. And, here, there must be in this kind of case some contemplation that the releasee will be able to conduct ordinary and reasonable business after the date of the release, even though it might relate to the previous subject matter of an alleged conspiracy .... The principal ruling is that there simply are not inferences available, in my opinion, that would suggest that the lawsuit could be maintained against the Bank. The granting of a summary judgment is a drastic remedy, and if there is any issue of material fact to be tried, summary judgment must be denied. ( Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717 [150 Cal.Rptr. 408].) The trial court is, however, to some extent required to weigh evidence in determining whether the factual issues asserted relate to a material fact, and

logical interpretation of the release is that the parties intended not only to release the Bank, but to insulate its employees against claims relating to the same transaction. Those are the claims herein made, and hence we conclude that the employees are protected by the release from this suit. *408 Appellant contends, however, that the ruling in favor of P age | 21 Klugherz and McIntosh was error because the matter was not properly before Judge Orfield. Just the day prior to Judge Orfield's ruling Judge Woodworth had denied the same motion, and no compliance with Code of Civil Procedure section 1008 (requiring application to the original judge for reconsideration of a motion) had been made. Further, appellant contends that Klugherz and McIntosh never in fact moved for judgment before Judge Orfield on the ground of the release; that their motion before Judge Orfield was solely on the res judicata theory; and that the ultimate ruling by Judge Orfield on both res judicata and the release grounds came as a surprise. It is noted, however, that the Klugherz and McIntosh motions for summary judgment on the ground of the release were thoroughly prepared and argued before Judge Woodworth. While an order denying a motion for summary judgment is ordinarily nonappealable, like any other intermediate ruling before judgment it is reviewable on appeal from a final judgment. (4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, 195, p. 2842.) That final judgment has been rendered and all issues in the case are now on appeal. While the precise question on appeal from Judge Woodworth's denial of the Klugherz and McIntosh motions may not have been framed in counsel's briefs, the matter is nonetheless before us, the record is complete, and has been fully argued. Thus, whether the alleged error of Judge Orfield in hearing the matter on the ground of the release be deemed harmless;FN1 or whether the posture of the issue be cast in terms of reversing Judge Woodworth's denial of the motion, the proper appellate remedy is to sustain the present status of the case, which is that the defendants Klugherz and McIntosh should be dismissed. FN1 The failure to comply with Code of Civil Procedure section 1008 is in any event not a jurisdictional matter. (See Lopez v. Larson (1979) 91 Cal.App.3d 383 [153 Cal.Rptr. 912]; Josephson v. Superior Court (1963) 219 Cal.App.2d 354 [33 Cal.Rptr. 196].)

client privilege, it being asserted that the reason for taking some action was that counsel had so advised, or that certain action was taken to implement the advice of counsel. It is well settled that facts involved in a lawsu it are not insulated from discovery simply because they have been communicated to counsel. (See Brown v. Superior Court (1963) 218 Cal.App.2d 430.) However, the trial court has broad discretion in ruling on motions to compel discovery. ( Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171 [84 Cal.Rptr. 718, 465 P.2d 854]; Crumpton v. Dickstein (1978) 82 Cal.App.3d 166, 169 [146 Cal.Rptr. 840].) This exercise of discretion will not be reversed on appeal unless it has been manifestly abused and where the facts justifying discovery are clear. (See People ex rel. Dept. of Transportation v. Superior Court (1976) 60 Cal.App.3d 352, 357 [131 Cal.Rptr. 476].) Particularly in cases involving the invocation of the attorney-client privilege and its oft related attorney work product privilege, it would seem that the conclusions reached by the trial judge, who must administer the day-to-day course of trial discovery, should be accorded deference unless clearly erroneous. (See American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 593 [113 Cal.Rptr. 561].) When and to what extent an answer about a client's motivation for taking some course of action will unreasonably impinge upon the attorney-client privilege, or will constitute impermissible invasion of the attorney's work product, is a difficult matter to resolve, depending usually upon the facts and background of the particular case. We are unable in this case to conclude that the trial court abused its discretion in refusing to require requested discovery.

Janz N. Serrano Concurring. I start with the obvious. This is not a simple case. One senses, however, that the energies of highly talented counsel *410 may not have been channeled towards simplifying the issues in order to expeditiously resolve this controversy. Nevertheless, it is probably fair to say this dispute with exceptionally competent and diligent lawyers has been handled in the same way as are other commercial cases involving large sums of money. The ritual of litigation seems to take on new ceremonies with each advance in the electronics industry. The word processor, spewing out pages of interrogatories, requests for admissions and motions, spawns gobs of materials for copying machines, the product of which ultimately descends upon the court. Here, for example, before a full trial, the record stands 22 3/4 inches high, weighing in at an even 50 pounds. One queries what the height and weight will be after the main event when we undoubtedly will have another chance to search for error. On occasion, one questions whether the paper mill improves the quality of justice and ponders the effect if all of us, including judges, were deprived of technology and required to write by quill pen. These musings, perhaps technically unnecessary to my concurrence, are helpful to describe the setting in which this court is called upon to deny plaintiffs a full trial because of res judicata, a doctrine tied to the concept of judicial economy. But the lawyercreated environment here is important to accurately analyze the issue of estoppel. As I will explain, I conclude defendants, except for the Toronto Dominion Bank and its officers, are estopped from raising the defense of res judicata. Accordingly, I agree with the result reached by the majority. A defendant in a second action may be precluded from asserting res judicata as a defense because of his conduct in prior proceedings. (See 4 Witkin (2d ed. 1971) Cal. Procedure, 152, p. 3298, (1981 supp.) p. 248.) At an earlier time this court explained, Our courts have in appropriate situations weighed the motions and objections of counsel in a former action to determine whether a contradictory stand was later assumed, and the general principle has been applied that one cannot take inconsistent positions to the injury of an opponent. Thus, where a party litigant successfully blocked the attempt of its opponents in an earlier case to amend their pleading and consolidate with another pending action to include certain issues, and later contended that such issues were res judicata because they might have been ajudicated in the earlier case, the Supreme Court in United Bank & Trust Co. v. Hunt, 1 Cal.2d 340, 345 ..., held that 'Litigants can not successfully assume such inconsistent positions' and treated the situation developed in the first trial as '... tantamount to an express determination on the part of the court with the consent of opposing counsel to reserve the issues involved for *411 future ajudication.' ( Lunsford v. Kosanke (1956) 140 Cal.App.2d 623, 628-629 [295 P.2d 432].) Whether this principle should be applied will turn on the facts of each case for uncertainty as to the finality of a judgment should not as a general rule be induced into our judicial system by occasional apparent inequities. (See Slater v. Blackwood (1975 15 Cal.3d 791, 798 [126

Conclusion The dismissal of Toronto Dominion Bank of California, Charles Klugherz and William McIntosh is affirmed. The judgment dismissing all of the other parties defendant is reversed. The discovery orders are affirmed. Toronto Dominion Bank of California, Charles Klugherz and William McIntosh to recover costs on appeal. Appellants (Edmund V. Sawyer et al.) to recover their costs on appeal from the remaining defendants.

Staniforth, Acting P. J., concurred. Rulings on Discovery Matters (5)Appellant seeks review of the denial by the lower court of its motion to compel additional answers to certain written interrogatories and questions posed at depositions. The general trend of the questions was to elicit from the deponent his or its reasons for taking action (as, for instance, why Financial did not take record title to the realty before transfer to Lexington). The objections to these questions were based *409 upon the attorney-

WIENER, J.

Janz N. Serrano Cal.Rptr. 225, 543 P.2d 593].) Obviously, one must move cautiously. Judicious utilization of judicial and litigant resources become ever more essential in the wake of the law explosion. The efficient administration of justice would not be advanced by a rule resulting in or encouraging multiple litigation of a single cause of action. ( Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441, 455 [164 Cal.Rptr. 913].) I examine the record with these principles in mind. P Plaintiffs filed their first case (No. 369573) in July 1975; their second (No. 409803) on January 11, 1978. On January 13, 1978, plaintiffs moved to consolidate both cases because some of the parties and certain of the issues were the same. Unable to serve all defendants, plaintiffs' motion to consolidate was reset beyond February 15, 1978, the trial date in case No. 369573. Pending hearing on that motion, plaintiffs moved to continue the trial to allow the court to consider the motion for consolidation. Counsel for First City defendants in Sawyer I, one of whom is appellate counsel here, opposed the motion for continuance by saying there was no basis for consolidation, arguing further that [p]laintiffs are pursuing theories of action for conspiracy and fraud in Case No. 409803, whereas in the above-captioned action plaintiffs are pursuing theories for breach of contract, declaratory relief and judicial foreclosure. The issues raised in the two cases are necessarily and substantially different. (Italics supplied.) At first blush it appears United Bank & Trust Co. v. Hunt, supra., 1 Cal.2d 340 [34 P.2d 1001], controls. Defendants respond to this superficial similarity, however, by explaining they were deliberate in their use of language in opposing the motion. They referred to different theories of action, not causes of action. Whether I am correct in believing that there is only a subtle difference between the phrases theory of action and cause of action is immaterial. What is important is defendants' failure to have communicated this distinction in any meaningful fashion to the trial judge who ruled on the continuance. If defendants' counsel made the tactical decision to oppose the continuance on the assumption that if successful they *412 would then be able to prevent litigation in the second case on the basis of res judicata, it would have been simple enough for them to tell the court that res judicata was involved. If they had done so the judge considering the motion would then have been able to evaluate all relevant factors affecting his decision before exercising discretion in making his ruling. In light of the language which defendants selected to oppose the motion for the continuance the ruling on which prevented the court from ever considering the merits of plaintiffs' request for consolidation, it was reasonable for both the court and plaintiffs' counsel to conclude defendants' opposition to the continuance would not prevent a trial of the second case in which the issues were represented to be necessarily and substantially different. Accordingly, reasonably interpreted, defendants' actions fall within the narrow rule of United Bank & Trust Co. v. Hunt, supra.. Once having represented to the court there were two different actions with different issues, they may not now stop plaintiffs from having a full trial on those different issues. I concur in the court's judgment as to defendants Toronto Dominion Bank of California, Charles Klugherz and William McIntosh. A petition for a rehearing was denied October 26, 1981, and on November 6, 1981, the judgment was modified to read as printed above. The petitions of respondents First City Financial Corporation et al., Cytrynbaum, Ostrow and Belzberg for a hearing by the Supreme Court were denied December 16, 1981. *413 Cal.App.4.Dist. Sawyer v. First City Financial Corp., Ltd. 124 Cal.App.3d 390, 177 Cal.Rptr. 398 END OF DOCUMENT

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Supreme Court of Ohio. RUSH, Appellee, v. CITY OF MAPLE HEIGHTS, Appellant. age | 23 P No. 35170. Jan. 29, 1958. Motorcycle passenger, who was thrown from motorcycle because of bumpy city street, brought action against city for personal injuries. The Court of Common Pleas of Cuyahoga County entered judgment in favor of the motorcycle passenger, and the city appealed to the Court of Appeals for Cuyahoga County. The Court of Appeals affirmed the judgment, and the case came to the Supreme Court on the allowance of a motion to certify the record. The Supreme Court, Herbert, J., held that the action could not be maintained where motorcycle passenger had previously brought action in Municipal Court against city for personal property damage sustained in the same accident and recovered judgment, which was affirmed. Judgment of the Court of Appeals reversed, and final judgment entered for city. Zimmerman, J., dissented.

228k591 Splitting Cause of Action 228k597 k. Torts in General. Most Cited Cases Where motorcycle passenger, who was thrown from motorcycle because bumpy city street, brought action in Municipal Court against city for personal property damage and recovered judgment, which was affirmed, she could not thereafter maintain action in Court of Common Pleas against city for personal injuries sustained in the same accident. **599 Syllabus by the Court *221 Where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises, the different injuries occasioned thereby being separate items of damage from such act. (Paragraph four of the syllabus in the case of Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855, overruled.)

Janz N. Serrano Court of Cleveland rendered its findings of fact and conclusions of law as follows: The court finds that the city of Maple Heights had actual notice of the condition of Schreiber Road. That the city was negligent in nor repairing the hole complained of in plaintiff's petition. That such negligence on the part of the city was the proximate cause of the damages sustained by plaintiff in the amount of $100.

Conclusions of law.

Judgment for plaintiff in the amount of $100. Thereafter on April 19, 1954, the Municipal Court of Cleveland duly overruled the motion of the defendant the city of Maple Heights for a new trial, whereupon the defendant therein filed its notice of appeal to the Court of Appeals in and for Cuyahoga County, Ohio. After the filing of briefs therein and oral argument thereto, the Court of Appeals on or about the 17th day of December 1954 affirmed the judgment of the Municipal Court of Cleveland in favor of the plaintiff, Lenore Rush and against the defendant therein, the city of Maple Heights and directed that a special mandate issue to the Municipal Court of Cleveland in order to carry the judgment into execution. Thereafter the defendant therein, the city of Maple Heights filed its motion to certify the proceedings to the Supreme Court of Ohio. After the filing of briefs therein and oral argument thereto, the Supreme Court of Ohio on or about the 21st day of February 1955 denied the motion to certify and affirmed the judgment of the Court of Appeals and the Municipal Court of Cleveland in favor of the plaintiff, Lenore Rush and against the defendant the city of Maple Heights. * * * The plaintiff in cause number A 241 307 in the Municipal Court of Cleveland is the same Lenore Rush who is the plaintiff herein; the defendant in cause number A 241 307 in the Municipal*223 Court of Cleveland is the same city of Maple Heights, defendant herein. The allegations of negligence in cause number A 241 307 in the Municipal Court of Cleveland are the same as the allegations of negligence hereinbefore set forth. The issue of negligence is therefore res judicata between the parties hereto. Plaintiff then filed a motion for an order setting the cause for trial on the issue of damages alone for the reason that the liability

This cause was commenced in the Court of Common Pleas of Cuyahoga County as an action to recover damages for personal injuries resulting from a fall while plaintiff, appellee herein, was riding on a motorcycle over a street in defendant city of Maple Heights, appellant herein. In her second amended petition, plaintiff alleges that on or about September 20, 1951, she was a passenger on a motorcycle operated by her husband and proceeding in an easterly direction on Schreiber Road within the limits of Maple Heights at a speed of not more than 20 miles per hour, when she was thrown to the ground and injured. She alleges further that the defendant was negligent in failing to keep Schreiber Road in good repair and free from unisance, in suffering large holes, bumps' and dips' to exist in the regularly traveled portion of the street, and in failing to erect warning signs giving notice of the unsafe and dangerous condition of Schreiber Road; that the city had notice; and that her injuries were caused directly and proximately by the negligence of the defendant city. She then alleges: Thereafter the plaintiff herein, Lenore Rush, duly filed an action for damage to personal property in the Municipal Court of Cleveland, Ohio, being cause number A **600 241 307 on the docket of said court, against the defendant herein, the city of Maple Heights. The cause proceeded to trial on or about *222 the 23rd day of March 1954, the Municipal Court of Cleveland rendered its judgment in favor of the plaintiff therein, Lenore Rush and against the defendant therein, the city of Maple Heights. Thereafter upon the motion of the defendant, the city of Maple Heights the Municipal

West Headnotes

[1]

KeyCite Citing References for this Headnote

13 Action 13III Joinder, Splitting, Consolidation, and Severance 13k38 Single and Entire Cause of Action in General 13k38(3) k. Different Kinds of Injury from Same Act. Most Cited Cases Where a person suffers both personal injuries and property damage as result of the same wrongful act, only a single cause of action arises, and the different injuries occasioned thereby are separate items of damage from the same act. [2] KeyCite Citing References for this Headnote

228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded

of the defendant has been determined heretofore by the Supreme Court in case number A 241 307 on the docket of the Municipal Court of Cleveland. In its answer, defendant denies plaintiff's allegations charging it with negligence. P Relative to the effect of the previous action between the age | 24 parties in the Cleveland Municipal Court, the defendant answers as follows: * * * defendant admits the filing of a lawsuit by plaintiff against defendant in Cleveland Municipal Court and that plaintiff obtained judgment therein, but this defendant denies that said Cleveland Municipal Court judgment is controlling herein. Defendant further denies for want of knowledge that the damage used for in the Cleveland Municipal Court case and the injuries sued for herein allegedly arise out of the same incident, i. e., a fall from a motorcycle striking a hole in the street. Defendant's answer admits further that it appealed from the judgment of the Municipal**601 Court to the Court of Appeals and to the Supreme Court as alleged by plaintiff and denies for want of knowledge that plaintiff was injured at the time and place or in the manner and to the extent described in plaintiff's petition. After a pretrial conference, the motion of plaintiff for an order setting this cause for trial on the issue of damages only was sustained, and the case was assigned for trial. A jury was empanelled, and the case submitted. The court charged the jury that it was not to be concerned with the issues of defendant's negligence, proximate cause or plaintiff's contributory negligence, because those issues were resolved favorably to the plaintiff and against the *224 defendant in another action between the same parties in the Cleveland Municipal Court, and that the action in that court did not involve a claim for bodily injury, and under the law plaintiff had the right to bring her separate action for personal injuries in the Court of Common Pleas. The court charged that, as a matter of law, if the plaintiff was involved in this accident on September 20, 1951, and suffered injuries as the proximate result thereof, the defendant would be legally responsible to the plaintiff for whatever injuries she sustained in that accident; that she was required to prove affirmatively, by the preponderance of the evidence, that she was a passenger upon a motorcycle, operated by her husband on Schreiber Road, in the city of Maple Heights, Ohio, on or about September 20, 1951, and that such motorcycle was involved in an accident by striking a hole in said street, and she must further prove that she was injured in said accident and, if so, the extent of such injury; and that such injuries, if any, were the direct and proximate result of such accident.

The jury returned a verdict for the plaintiff in the amount of $12,000. An appeal was perfected to the Court of Appeals, which affirmed the judgment. The cause is in this court upon the allowance of a motion to certify the record. Elmer R. Vanek and Austin T. Klein, Cleveland, for appellant. Owen Calvin Neff, Cleveland, for appellee. HERBERT, Judge.

Janz N. Serrano the personal injuries suffered by plaintiff the judgment rendered in favor of defendant in the insurance company case. A motion to strike that defense having been sustained, a second amended answer was filed omitting allegations as to such judgment. A trial of the action resulted in a verdict for plaintiff, upon which judgment was entered. On appeal to the Court of Appeals the defendant claimed that the Court of Common Pleas erred in sustaining plaintiff's motion to strike from the defendant's answer the defense of res judicata claimed to have arisen by reason of the judgment in favor of the defendant in the action by the insurance company. The Court of Appeals reversed the judgment of the Court of Common Pleas and entered final judgment in favor of defendant. This court reversed the judgment of the Court of Appeals, holding in the syllabus, in part, as follows: 1. If the owner of a single cause of action arising out of *226 a single tortious act brings an action against his tort-feasor, he may have but one recovery; and, in case he fails to recover, he may not maintain a subsequent action on the same cause of action, even though he has failed to include his entire cause of action or elements of damage in his original action. 2. If an owner of a single cause of action has a recovery thereon, the cause of action is merged in the judgment; but if he fails to recover on his claimed cause of action and judgment goes against him, such judgment is res judicata and a bar to a second action on the same cause of action. * * * 4. Injuries to both person and property suffered by the same person as a result of the same wrongful act are infringements of different rights and give rise to distinct causes of action, with the result that the recovery or denial of recovery of compensation for damages to the property is no bar to an action subsequently prosecuted for the personal injury, unless by an adverse judgment in the first action issues are determined against the plaintiff which operate as an estoppel against him in the second action. 5. A right, question or fact in issue which was necessarily determined by a court of competent jurisdiction in a judgment which has become final, cannot be disputed or litigated in a subsequent suit between the same parties, although the subsequent suit is based upon a different cause of action. 6. Where an injury to person and to property through a single wrongful act causes a prior contract of indemnity and subrogation as to the injury to property, to come into operation for the benefit of the person injured, the indemnitor may prosecute a

The eighth error assigned by the defendant is that the trial and appellate courts committed error in permitting plaintiff to split her cause of action and to file a separate action in the Cleveland Municipal Court for her property damage and reduce same to judgment, and, thereafter, to proceed, in the Cuyahoga County Common Pleas Court, with a separate action for personal injuries, both claims arising out of a single accident. before. Other facets of this question have been before the court

In the case of *225 Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 709, 166 A.L.R. 855, plaintiff operating an automobile came into collision with defendant's truck, in which collision he suffered personal injuries and also damage to his automobile. At the time of collision, plaintiff had coverage of a $50 deductible collision policy on his automobile. The insurance company paid the plaintiff a sum covering the damage to his automobile, whereupon, in accordance with a provision of the policy, the plaintiff assigned to the insurer his claim for such damage. In February 1942, the insurance company commenced an action in the Common Pleas Court of Mahoning County against Kohlers, Inc., the defendant in the reported case to recoup the money paid by it to cover the damage to Vasu's automobile. In August 1942, Vasu commenced an action in the same court against Kohlers, Inc., to recover for personal injuries which he suffered in the same collision. In March 1943, in the insurance company's action, a verdict was rendered in **602 favor of the defendant, followed by judgment. Two months later an amended answer was filed in the Vasu case, setting out as a bar to the action for recovery of damages for

separate action against the party causing such injury for reimbursement for indemnity monies paid under such contract. 7. Parties in privy, in the sense that they are bound by a judgment, are those who acquired an interest in the subject matter after the beginning of the action or the rendition of the judgment; and P if their title or interest attached before that fact, they are not age | 25 bound unless made parties. 8. A grantor or assignor is not bound, as to third persons,*227 by any judgment which such third persons may obtain against his grantee or assignee adjudicating the title to or claim for the interest transferred unless he participated in the action in such manner as to become, in effect, a party. The foregoing syllabus is set forth at considerable length for subsequent reference herein. The first two paragraphs, although not pertinent there because of the fourth paragraph, are not only applicable but persuasive in our determination here. **603 The sixth, seventh and eighth paragraphs deal with the factual situation which existed in the Vasu case, i. e., a prior contract of indemnity and subrogation. Although, as discussed infra, it was not actually necessary to the determination of the issue in that case, attention centers on the fourth paragraph. The Vasu case was distinguished in the case of Markota v. East Ohio Gas Co., 154 Ohio St. 546, 97 N.E.2d 13, and explained in the case of Mansker v. Dealers Transport Co., 160 Ohio St. 255, 116 N.E.2d 3. In the Markota case, plaintiffs commenced an action for damages alleged to have been caused by the defendant in constructing and installing a pipeline over the plaintiffs' premises. Plaintiffs and defendant had entered into a right of way agreement giving the defendant the right to lay, maintain and operate the pipeline, the defendant agreeing to reimburse, indemnify and save plaintiffs harmless from and against any loss, damage or expense in connection therewith. Plaintiffs' amended petition had seven causes of action, each for damages resulting from injuries to plaintiffs' property. Judgment was entered on the verdicts. The trial court granted a new trial on two causes of action, reducing the judgment by the amounts claimed in such causes of action. The question presented to this court was whether the trial court erred in failing to grant a new trial in toto. This court reversed the judgment of the Court of Appeals which had affirmed the judgment of the Court of Common Pleas. The pertinent portion of the syllabus in that case, decided by a unanimous court, is paragraph three [154 Ohio St. 546, 97 N.E.2d 14]: Although a right of action may arise at each time that damage covered by a single indemnity agreement occurs, a *228 plaintiff may maintain only one action to enforce any such rights

existing at the time such action is commenced. (Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855, distinguished.) The opinion in the Markota case states (154 Ohio St. at page 551, 97 N.E.2d at page 16): However, paragraphs four and six of the syllabus in Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855, do tend to support the defendant's contention that the separate causes of action, stated in the second amended petition in the instant case, were actually separate causes of action. It should be noted, however, that the plaintiff, in the Vasu case, had not been a party to the action brought by his indemnitor against the defendant; and, as indicated by paragraph eight of the syllabus in the Vasu case, the plaintiff was not, therefore, bound by the judgment against his indemnitor who had sought to recover from that defendant the portion of the plaintiff's claim assigned to such indemnitor. The facts in the Mansker case are the converse of those in the instant case. In that case, Mansker commenced an action for personal injuries sustained by him in a collision of two motor vehicles and recovered a verdict and judgment, prevailing over the claim that he was estopped from prosecuting his action for the reason that the controlling issue of negligence therein had been fully litigated in a prior action between the same parties and had been determined by verdict and judgment adverse to him. Cf. paragraph five of the syllabus in the Vasu case, supra. Two separate actions involving the same collision had previously been commenced against Mansker and his employer, Summit Fast Freight, Inc., one by Dealers Transport Company and the other by its driver, Dow, Dealers' action being for property damage and Dow's for personal injuries. In the action initiated by Dealers, in addition to a cross-petition filed by Summit for damages to its fire truck, a cross-petition was filed by Mansker to recover for damage to his tractor, due to the collision. The two previous cases were tried together by agreement and resulted in verdicts in favor of Dealers and Dow, respectively, which **604 verdicts, after remittiturs were ordered and accepted, were reduced to judgments, and the judgments subsequently paid. *229 In the Mansker case (160 Ohio St. 255, 116 N.E.2d 3, 5) the issue of res judicata was raised. This court reversed the judgment of the Court of Appeals which had affirmed the judgment of the Court of Common Pleas, and entered judgment for Dealers. As stated in the opinion, both lower courts relied on the fourth paragraph of the syllabus of the Vasu case and reached the conclusion that such case is authority for the proposition that where the same person sustains injury to both his property and his person as a result of the same incident and due to the claimed negligence of another, an infringement of different rights occurs, so that he has two causes of action-one for damage to his property and the other for injury to his person; that, hence, where he prosecutes

Janz N. Serrano those causes of action separately, a verdict and judgment against him in one case do not preclude him from litigating the other, and his success in the other case is not prevented by an adverse result in the first; and that in such a situation res judicata or estoppel may not be invoked by his opponent. The syllabus states: 1. In a second action between the same parties on a claim, demand or cause of action different from that involved in the first action, a final judgment in the first action does not constitute a bar to the prosecution of the second, but does operate as an estoppel with regard to the relitigation of controlling points or questions actually determined in the first action. Paragraph four of the syllabus of Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855, explained. 2. The final adjudication of a material issue by a court of competent jurisdiction binds the parties in any subsequent proceeding between or among them, irrespective of a difference in forms or causes of action. Thus, the Markota and Mansker cases, distinguishing and explaining the Vasu case, have not changed the rule established in paragraph four of the syllabus of the latter case, holding that injuries to both person and property suffered by the same person as a result of the same wrongful act are infringements of different rights and give rise to distinct causes of action. However, it is contended here that that rule is in conflict with the great weight of authority in this country and has *230 caused vexatious litigation. The following quotation from 1 American Jurisprudence, 494, Section 114, states this question well: It sometimes happens that a single wrongful or negligent act causes damage in respect of both the person and the property of the same individual, as, for instance, where the owner of a vehicle is injured in a collision which also damages the vehicle. In such a case, the question arises as to whether there are two causes of action or only one, and the authorities are in conflict concerning it. The majority rule is that only one cause of action arises, the reason of the rule being that as the defendant's wrongful act is single, the cause of action must be single, and that the different injuries occasioned by it are merely items of damage proceeding from the same wrong. * * * In other jurisdictions, the rule is that two causes of action result from a negligent act which inflicts injury on a person and his property at the same time. This conclusion has been reached in different jurisdictions by different lines of reasoning. Upon examination of decisions of courts of last resort, we find that the majority rule is followed in the following cases in each of which the action was between the person suffering injury and the

person committing the tort, and where insurers were not involved, as in the case here. Birmingham Southern Ry. Co. v. Lintner, 1904, 141 Ala. 420, 38 So. 363, **605 109 Am.St. Rep. 40; Jenkins v. Skelton, 1920, 21 Ariz. 663, 192 P. 249; Gregory v. Schnurstein, 1956, 212 Ga. 497, 93 S.E.2d 680; Georgia Ry. & Power Co. v. Endsley, 1928, 167 Ga. 439, P age | 26 145 S.E. 851, 62 A.L.R. 256; Fiscus v. Kansas City Public Service Co., 1941, 153 Kan. 493, 112 P.2d 83; Cassidy v. Berkovitz, 1916, 169 Ky. 785, 185 S.W. 129; Pillsbury v. Kesslen Shoe Co., 1939, 136 Me. 235, 7 A.2d 898; Doran v. Cohen, 1888, 147 Mass. 342, 17 N.E. 647; Dearden v. Hey, 1939, 304 Mass. 659, 24 N.E.2d 644, 127 A.L.R. 1077; Tuttle v. Everhot Heater Co., 1933, 264 Mich. 60, 249 N.W. 467; King v. Chicago, Milwaukee & St. Paul Ry. Co., 1900, 80 Minn. 83, 82 N.W. 1113, 50 L.R.A. 161, 81 Am.St.Rep. 238; Kimball v. Louisville & Nashville R. Co., 1909, 94 Miss. 396, 48 So. 230; *231 Chamberlain v. Missouri-Ark. Coach Lines, Inc., 1945, 354 Mo. 461, 189 S.W.2d 538, 161 A.L.R. 204; Underwood v. Dooley, 1929, 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656; Anderson v Jacobson, 1919, 42 N.D. 87, 172 N.W. 64; Fields v. Philadelphia Rapid Transit Co., 1922, 273 Pa. 282, 117 A. 59; Farmers Ins. Exchange v. Arlt, N.D.1953, 61 N.W.2d 429; Holcombe v. Garland & Denwiddie, Inc., 1931, 162 S.C. 379, 160 S.E. 881; Mobile & Ohio R. Co. v. Matthews, 1906, 115 Tenn. 172, 91 S.W. 194; Smith v. Lenzi, 1929, 74 Utah 362, 279 P. 893; Moultroup v. Gorham, 1943, 113 Vt. 317, 34 A.2d 96; Sprague v. Adams, 1926, 139 Wash. 510, 247 P. 960, 47 A.L.R. 529; Larzo v. Swift & Co., 1946, 129 W.Va. 436, 40 S.E.2d 811. The minority rule, that separate actions may be maintained to recover for personal injuries and for damages to property resulting from the same wrongful act, is set forth in the following cases: Thelin v. Stewart, 1893, 100 Cal. 372, 34 P. 861; Lamb v. Harbaugh, 1895, 105 Cal. 680, 39 P. 56; Ochs v. Public Service Ry. Co., 1911, 81 N.J.L. 661, 80 A. 495, 36 L.R.A.,N.S., 240, Ann.Cas.1912D, 255; Reilly v. Sicilian Asphalt Paving Co., 1902, 170 N.Y. 40, 62 N.E. 772, 57 L.R.A. 176, 88 Am. St.Rep. 636; Watson v. Texas & Pacific Ry. Co., 1894, 8 Tex.Civ.App. 144, 27 S.W. 924; Carter v. Hinkle, 1949, 189 Va. 1, 52 S.E.2d 135. As to the rule in New York, however, it is noted in the opinion in the Vasu case (145 Ohio St. at page 331, 61 N.E.2d at page 713) that the court, in deciding the Reilly case, took a position contra to an earlier holding in the same state in the case of Howe v. Peckham, 6 How.Prac. 229, 10 Barb. 659, a case frequently cited (see quotation from Phillips' Pleading, infra) as supporting the single-cause-of-action rule. The reasoning behind the majority rule seems to be well stated in the case of Mobile & Ohio Rd. Co. v. Matthews, supra, as follows:

The negligent action of the plaintiff in error constituted but one tort. The injuries to the person and property of the defendant in error were the several results and effects of one wrongful act. A single tort can be the basis of but one action. It is not improper to declare in different counts for damages to the person and property when both result from the same tort, *232 and it is the better practice to do so where there is any difference in the measure of damages, and all the damages sustained must be sued for in one suit. This is necessary to prevent multiplicity of suits, burdensome expense, and delays to plaintiffs, and vexatious litigation against defendants. * * * Indeed, if the plaintiff fail to sue for the entire damage done him by the tort, a second action for the damages omitted will be precluded by the judgment in the first suit brought and tried. The minority rule would seem to stem from the English case of Brunsden v. Humphrey (1884), 14 Q.B. 141. The facts in that case are set forth in the opinion in the Vasu case (145 Ohio St. at page 329, 61 N.E.2d at page 713), concluding with the statement: The Master of the Rolls, in his opinion, stated that the test is whether the same sort **606 of evidence would prove the plaintiff's case in the two actions, and that, in the action relating to the cab, it would be necessary to give evidence of the damage done to the plaintiff's vehicle. In the present action it would be necessary to give evidence of the bodily injury occasioned to the plaintiff, and of the sufferings which he has undergone, and for this purpose to call medical witnesses. This one test shows that the causes of action as to the damage done to the plaintiff's cab, and as to the injury occasioned to the plaintiff's person, are distinct.' The fallacy of the reasoning in the English court is best portrayed in the dissenting opinion of Lord Coleridge, as follows: It appears to me that whether the negligence of the servant, or the impact of the vehicle which the servant drove, be the technical cause of action, equally the cause is one and the same: that the injury done to the plaintiff is injury done to him at one and the same moment by one and the same act in respect of different rights, i. e. his person and his goods, I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions, if he is injured in his arm and in his leg, but can bring two, if besides his arm and leg being injured, his trousers which contain his leg, and his coatsleeve which contains his arm, have been torn. *233 There appears to be no valid reason in these days of code pleading to adhere to the old English rule as to distinctions between injuries to the person and damages to the person's property resulting from a single tort. It would seem that the minority rule is bottomed on the proposition that the right of bodily security is fundamentally different from the right of security of property and, also, that, in actions predicated upon a negligent act,

Janz N. Serrano damages are a necessary element of each independent cause of action and no recovery may be had unless and until actual consequential damages are shown. Whether or not injuries to both person and property resulting from the same wrongful act are to be treated as injuries to separate rights or as separate items of damage, paragraph three of the syllabus in the Markota case gives us the answer that a plaintiff may maintain only one action to enforce his rights existing at the time such action is commenced. The decision of the question actually in issue in the Vasu case is found in paragraphs six, seven and eight of the syllabus, as it is quite apparent from the facts there that the first judgment, claimed to be res judicata in Vasu's action against the defendant, was rendered against Vasu's insurer in an action initiated by it after having paid Vasu for the damages to his automobile. That case is considered and discussed at length in 166 A.L.R. 870. Upon further examination of the cases from other jurisdictions, it appears that in those instances where the courts have held to the majority rule, a separation of causes of action is almost universally recognized where an insurer has acquired by an assignment or by subrogation the right to recover for money it has advanced to pay for porperty damage. In some instances those jurisdictions recognize the right of the insurer to become a party to the action and recover in the single action that part of the damages to which it has become subrogated. See Moultroup v. Gorham, supra; Farmer v. Union Ins. Co. of Indiana, 1927, 146 Miss. 600, 111 So. 584; Sprague v. Adams, supra. In other states, and particularly in those having statutes requiring actions to be brought by the real party in interest, the courts have recognized the right of the insurer to bring *234 a separate action to recover in its own name for that part of a single cause of action to which it has become entitled by payment of damages. The following cases are illustrative: Travelers Indemnity Co. v. Moore, 1947, 304 Ky. 456, 201 S.W.2d 7; **607 Underwritors at Lloyds Ins. Co. v. Vicksburg Traction Co., 1913, 106 Miss. 244, 63 So. 455, 51 L.R.A.,N.S., 319; General Exchange Ins. Corp. v. Young, 1948, 357 Mo. 1099, 212 S.W.2d 396; Underwood v. Dooley, supra; Farmers Ins. Exchange v. Arlt, supra; Tobin v. Glerich, 1931, 162 Tenn. 96, 34 S.W.2d 1058. Section 2307.05, Revised Code, requires actions to be prosecuted in the name of the real party in interest, as was done by Vasu's insurer. The reason why the exception is recognized that, where the plaintiff has recovered from an insurance company a part of his damage, he is not estopped from prosecuting his own action, is well

stated in the North Carolina case of Underwood v. Dooley, supra [197 N.C. 100, 147 S.E. 690], as follows: It cannot be held as law in this state that the owner of an automobile, who, as the result of the wrong or tort of another, has sustained damages both to his automobile and to his person, and whose automobile is insured against the loss or damage which he P age | 27 has sustained because of injuries to his automobile, is put to an election whether or not he shall, in order to maintain an action against the wrongdoer to recover damages for injuries to [his] person, release the insurance company from all liability to him under its policy. He does not lose his right of action to recover for the injuries to his person, by accepting from the insurance company the amount for which it is liable to him * * *. Coming again to the defendant's eighth assignment of error, it is noted that the rule sttributed to the Ohio courts, as it is stated in 1 Ohio Jurisprudence (2d), 360, is based primarily on the Vasu case, although prior lower court decisions reaching a different conclusion are cited and recognized therein with the statement that these cases are impliedly overruled. Apparently, much of the vexatious litigation, with its attendant confusion, which has resulted in recent years from the filing of separate petitions by the same plaintiff, one for personal*235 injuries and one for property damage although sustained simultaneously, has grown from that one decision, this case presenting a good example. In the light of the foregoing, it is the view of this court that the so-called majority rule conforms much more properly to modern practice, and that the rule declared in the fourth paragraph of the syllabus in the Vasu case, on a point not actually at issue therein, should not be followed. [1] [2] We, therefore, conclude and hold that, where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises, the different injuries occasioned thereby being separate items of damage from such act. It follows that paragraph four of the syllabus in the Vasu case must be overruled. It is not necessary in view of this conclusion to consider the other errors assigned herein. Accordingly, the judgment of the Court of Appeals is reversed, and final judgment is entered for defendant. Judgment reversed and final judgment for defendant.

ZIMMERMAN, J., dissents. STEWART, Judge (concurring).

In the case of Vasu v. Kohlers, Inc., 145 Ohio St. 321, 327, 61 N.E.2d 707, 712, 166 A.L.R. 855, Judge Hart stated in part: The rule at common law and in a majority of the states of the union is that damages resulting from a single wrongful act, even though they include both property and personal injury damages, are, when suffered by the same person, the subject**608 of only one action against the wrongdoer. However, he referred to the fact that there were a number of state jurisdictions which followed the English rule, laid down in Brunsden v. Humphrey, L.R., 14, Q.B. Div., 141, and known as the two-causes-of-action rule, and then proceeded to announce that rule as the Ohio rule, and it was written into the fourth paragraph of the syllabus of the Vasu case. If it had *236 been necessary to decide the question whether a single tort gives rise to two causes of action as to the one injured by such tort, I would be reluctant to disturb that holding. However, neither the discussion in the Vasu case as to whether a single or double cause of action arises from one tort nor the language of the fourth paragraph of the syllabus was necessary to decide the issue presented in the case, and obviously both such language and such paragraph are obiter dicta and, therefore, are not as persuasive an authority as if they had been appropriate to the question presented. As to the case of Brunsden v. Humphrey, supra, which is the basis for the minority rule in this country, it seems to me that the dissenting opinion of Lord Coleridge, as quoted in the majority opinion in the present case, is not only highly persuasive but logically unanswerable, and that this court is justified in departing from the obiter dicta of the Vasu case.

Janz N. Serrano by the same person as a result of the same wrongful act give rise to distinct causes of action or to a single cause of action. Less than 13 years ago that question was discussed at some length in the opinion in the case of Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855, and the rule in favor of distinct causes of action was carried into the fourth paragraph of the syllabus and approved by a unanimous court. As is pointed out in the majority opinion, neither of the later cases of Markota v. East Ohio Gas Co., 154 Ohio St. 546, 97 N.E.2d 13, nor *237 Mansker v. Dealers Transport Co., 160 Ohio St. 255, 116 N.E.2d 3, reversed the law as set out in paragraph four of the syllabus of the Vasu case. As to the conflict existing among the cases on the matter under discussion, attention is directed to 1 American Jurisprudence, 494, Section 114, and 1 C.J.S. Actions, 104, p. 1334. In the latter volume, at pages 1334 and 1335, the following succinct and accurate statement appears: The question of whether a single tortious act which causes injury to the person and property of plaintiff gives rise to a single cause of action or to two separate causes is one on which there is a sharp conflict of authority * * *. In some jurisdictions an injury to person and to property, although resulting from the same tortious act, constitutes different causes of action. In other jurisdictions the fact that the injuries sustained are diversified in character does not cause two or more causes of action to accrue from a single tort, and a single tort which causes injury both to the person and property of an individual gives rise to but one cause of action * * *. There is abundant and respectable authority for both of the above viewpoints. Ohio has deliberately adopted one of them, **609 and I can find no impelling reason for changing the rule at the present time. In the recent case of Reid v. Holden, 242 N.C. 408, 88 S.E.2d 125, the Supreme Court of North Carolina held that, although a cause of action for personal injury is separate and distinct from a cause of action for tortious damage to personal property, they may be united in the same complaint if the plaintiff so elects. Of course, that would also be true in Ohio. Ohio 1958 RUSH v. CITY OF MAPLE HEIGHTS 167 Ohio St. 221, 147 N.E.2d 599, 4 O.O.2d 279

ZIMMERMAN, Judge (dissenting).

I am not unalterably opposed to upsetting prior decisions of this court where changing conditions and the lessons of experience clearly indicate the desirability of such course, but, where those considerations do not obtain, established law should remain undisturbed in order to insure a stability on which the lower courts and the legal profession generally may rely with some degree of confidence. Much may be said in support of the position taken in the majority opinion herein. However, there is a sharp division in the cases as to whether injuries to both person and property suffered

WEYGANDT, C. J., and STEWART, TAFT, MATTHIAS and BELL, JJ., concur.

Circuit Court of Appeals, Second Circuit. THE EVERGREENS v. NUNAN, Commissioner of Internal Revenue. age | 28 P No. 127. April 3, 1944. On petition to review an order of the Tax Court of the United States. Petition by The Evergreens to review an order of the Tax Court of the United States, 47 B.T.A. 815, redetermining deficiencies in income tax assessed against the petitioner for the years 1934 and 1935 by Joseph D. Nunan, Commissioner of Internal Revenue. Affirmed.

220k4749 k. Value. Most Cited Cases (Formerly 220k1691) In proceeding involving cemetery's taxable gain realized from sale of lots in 1934 and 1935, evidence sustained Tax Court's finding as to March 1, 1913, value of partially improved lots sold in 1934 and 1935. Revenue Act 1934, 111(a), 113(a)(14), 26 U.S.C.A. (I.R.C.1939) 111(a), 113(a)(14). [3] KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k723 Essentials of Adjudication 228k725 Facts Necessary to Sustain Judgment 228k725(1) k. In General. Most Cited Cases A fact, once decided in an earlier suit, is conclusively established between the parties in any later suit, provided it was necessary to the result in the first suit. [4] KeyCite Citing References for this Headnote 228 Judgment 228XXIII Evidence of Judgment as Estoppel or Defense 228k956 Evidence as to Identity of Issues or Matters Decided 228k956(4) k. Parol Evidence. Most Cited Cases In ascertaining which facts, of those decided in first suit, are conclusively established, the court in second suit may go beyond the judgment roll. [5] KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k713 Scope and Extent of Estoppel in General 228k713(1) k. In General. Most Cited Cases Even if mediate data decided in first suit conclusively establishes facts which are ultimate in second suit, no fact decided in first suit, whether ultimate or a mediate datum conclusively establishes any mediate datum in the second suit or anything except a fact ultimate in that suit. *927 Neilson Olcott, Valentine B. Havens, and Charles B. McInnis, all of New York City (Jerome Weinstein and J. D. Graves, both of New York City, of counsel), for petitioner.

Janz N. Serrano Howard P. Locke, of Washington, D.C., and Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and J. Louis Monarch, Sp. Assts. to the Atty. Gen., for respondent. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

West Headnotes

[1]

KeyCite Citing References for this Headnote 220 Internal Revenue 220XXI Assessment of Taxes 220XXI(E) Review by Tax Court 220k4664 Decisions and Orders 220k4665 k. Construction and Operation. Most Cited Cases (Formerly 220k1571)

Where, in prior proceeding involving cemetery's income taxes, Board of Tax Appeals had determined March 1, 1913, value of fully improved lots sold in 1929 to 1933, and made determination, not necessary to determination of value of fully improved lots, as to cost of fully improving partially improved lots, such determination was not conclusive against the Commissioner in subsequent proceeding, involving taxable gain on lots sold in 1934 and 1935, as to March 1, 1913, value of the partially improved lots. Revenue Act 1934, 111(a), 113(a)(14), 26 U.S.C.A. (I.R.C.1939) 111(a), 113(a)(14). [2] KeyCite Citing References for this Headnote 220 Internal Revenue 220XXI Assessment of Taxes 220XXI(F) Review of Tax Court Decisions 220XXI(F)7 Questions of Fact and Findings

[1] [2] This case comes up upon a petition to review an order of the Tax Court, assessing deficiencies in income tax against the taxpayer for the years 1934 and 1935. The taxpayer is a cemetery company doing business in Brooklyn, in the course of which it sells burial lots. The question at issue is its gains, (Sec. 111(a) of the Revenue Act of 1934, 26 U.S.C.A.Int.Rev.Code, 111(a), upon the disposition of a part of its property during the two years in question; and that in turn depends upon upon the basis which it shall be permitted to deduct from the amount realized: that basis being the value on March 1, 1913, of the property disposed of. Sec. 113(a)(14), 26 U.S.C.A.Int.Rev.Code, 113(a) (14 ). The company's property was of two classes: fully improved lots, and partially improved. During the years 1934 and 1935 it sold a number of fully improved lots, and the City of New York took over for municipal purposes a large tract, composed of partially improved lots. This appeal concerns only the second. The Tax Court allowed, as the basis for the sale of the fully improved lots, $1.55 per square foot, and, as the basis for the partially improved lots, $.35 per square foot. It held, as to the value of the fully improved lots, that the Commissioner was estopped by a finding of the Board of Tax Appeals in an earlier proceeding, in which the company's income taxes for the years 1929 to 1933, inclusive, had been assessed. The Commissioner raises no question as to the correctness of this finding, and has not appealed. The Tax Court refused, however, to compute a basis for the partially*928 improved lots by deducting from the basis of the fully improved lots, as found by the Board, the cost of fully improving the partially improved lots, which the Board had also found in the first proceeding. The Tax Court altogether disregarded the basis of the fully improved lots as the Board had found it, and proceeded to appraise the value of the partially improved lots from evidence taken in this proceeding. The taxpayer's position is that the Board's order in the first proceeding, not only estopped the Commissioner as to the value of the fully improved lots, but conclusively established that value as an indisputable premise from which, by deducting the cost of the improvements to infer the value of the partially improved lots. The taxpayer also asserts that the value of the partially improved lots was found in the first proceeding as a necessary step in finding the value of the fully improved lots, and in this the dissenting minority of the Tax Court agreed. However,

nothing in the record of the first proceeding bears this out; so far as appears, the Board did not first find the value of the partially improved lots and then add the cost of improvement. The sole basis for the assumption that it fixed any value for the partially improved lots is that, in calculating the value of the fully improved lots, it considered as one element the delay necessarily incident to the P disposition of all the taxpayer's lots. That is an altogether age | 29 different matter from fixing the value of those lots as a step from which to proceed to the value of the fully improved. Again, although it is true that the Board found that the cost of improving the lots was from eight to twenty cents a square foot, that was not necessary to determining the value of the fully improved lots, and is not an estoppel. Finally, the taxpayer apparently also asserts that the evidence in this proceeding was not enough independently to support the Tax Court's finding as to the value of the partially improved lots, but the testimony of the expert witnesses upon that issue is an answer to this position. [3] It is of course well-settled law that a fact, once decided in an earlier suit, is conclusively established between the parties in any later suit, provided it was necessary to the result in the first suit. Southern Pacific R. Co. v. United States, 168 U.S. 1, 48, 18 S.Ct. 18, 42 L.Ed. 355; Tait, Collector, v. Western Maryland R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405. However, a fact may be of two kinds. It may be one of those facts, upon whose combined occurrence the law raises the duty, or the right, in question; or it may be a fact, from whose existence may be rationally inferred the existence of one of the facts upon whose combined occurrence the law raises the duty, or the right. The first kind of fact we shall for convenience call an ultimate fact; the second, a mediate datum. Ultimate facts are those which the law makes the occasion for imposing its sanctions. [4] The first question is whether, in ascertaining which facts, of those decided in the first suit, are conclusively established, the court in the second suit may go beyond the judgment roll. It has been long the law that it can. Young v. Black, 7 Cranch 565, 3 L.Ed. 440; Doty v. Brown, 4 N.Y. 71, 75, 53 Am.Dec. 350; King v. Chase, 15 N.H. 9, 41 Am.Dec. 675. The next question is whether, after the court in the second suit has learned what the court in the first suit actually did decide, the judgment conclusively establishes for any purpose any other facts than those which were ultimate in the first suit; that is to say, whether any facts decided in the first which were only mediate data in that suit, are conclusively established in the second suit. Some courts hold that only facts ultimate in the first suit are conclusively established. King v. Chase, supra, 15 N.H. 9, 41 Am.Dec. 675; Winnipiseogee Lake Cotton & Wollen Manufacturing Co. v. Laconia, 74 N.H. 82, 65 A. 378; Campbell v. Milliken, 20 Colo.App. 299, 78 P. 620; Sullivan Machinery Co. v. Stowell, 80 N.H. 158, 114 A. 873; Louisville Gas Co. v. Kentucky Heating Co., 132 Ky. 435, 111 S.W. 374 (People es rel. McCanliss v. McCanliss, 255 N.Y. 456, 459, 175 N.E. 129, 82 A.L.R. 1141, may possibly be in line with these.) The same notion was foreshadowed in the often quoted

language of Coke: Every estoppel * * * must be certain to every intent, and not to be taken by argument or inference. Co. Lit. 352b. DeGrey, C.J., probably had the same idea in mind in the Duchess of Kingston's Case: But neither the judgment * * * is evidence of any matter which came collaterally in question * * * nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment. Smith's *929 Leading Cas. 424, 9th Am. Ed. 1998, 20 How.St.Tr. (Eng.) 355. On the other hand, other courts refuse to distinguish between ultimate facts and mediate data decided in the first suit, so long as they were necessary to the result. Wright v. Griffey, 147 Ill. 496, 35 N.E. 732, 37 Am.St.Rep. 228; Farmers' & Fruit-Growers' Bank v. Davis, 93 Or. 655, 184 P. 275; Dobbins v. Title Guarantee & Trust Co., 22 Cal.2d 64, 136 P.2d 572. We read Freeman on Judgments, Sec. 693, as in accord with these cases. We need not choose between these two doctrines, because, as we have seen, the Board decided nothing in the first proceedings which was both a mediate datum in that proceeding and necessary to the result. The important question here is not therefore whether mediate data in the first suit are as conclusively established as ultimate facts in that suit. On the contrary, we are to decide what are the purposes in the second suit for which anything decided in the first suit- whether ultimate facts, or mEdiate data therein- are conclusively established. Do the ultimate facts, or the mediate data decided in the first suit conclusively establish in the second, anything but facts ultimate in that suit? Do they also establish mediate data in that suit: i.e. premises from which to deduce the existence of any of the facts ultimate in that suit? It is, as we have said, a condition upon the conclusive establishing of any fact that its decision should have been necessary to the result in the first suit. That is a protection, for it means that the issue will be really disputed and that the loser will have put out his best efforts. It can make no difference in this regard whether the original issue was as to an ultimate fact or as to a mediate datum; the parties can have no interest in what place in the logical hierarchy the issue occupies, if only the final outcome hinges upon it. Altogether different considerations should determine whether any sort of fact, decided in the first suit, should conclusively establish mediate data in the second suit. Indeed, it often works very harshly inexorably to make a fact decided in the first suit conclusively establish even a fact ultimate in the second. The stake in the first suit may have been too small to justify great trouble and expense in its prosecution or defense; and the chance that a fact decided in it, even though necessary to its result, may later become important between the parties may have been extremely remote. It is altogether right that the judgment shall forever put an end to the first cause of action; but it is not plain that it is always fair that every fact- ultimate or mEdiate datum- decided in it, shall be conclusively established between the parties in all future suits, just because the decision was necessary to the result. What jural relevance facts may acquire in the future it is often impossible even remotely to anticipate. Were the law to be recast, it would therefore

Janz N. Serrano be a pertinent inquiry whether the conclusiveness, even as to facts ultimate in the second suit, of facts decided in the first, might not properly be limited to future controversies which could be thought reasonably in prospect when the first suit was tried. That is of course not the law as it stands; but if it be proposed to make any fact, decided in the first suit, an indisputable datum in the second, from which the winner may make all rational inferences, the loser's risks become enormously enlarged. It is difficult enough to know to what other possible causes of action a fact found in the first suit will later prove to be ultimate; but the field is at least somewhat restricted, particularly because the causes of action to which it can apply are apt to be already in existence. But it is utterly impossible to set even the widest boundaries to the situations in which facts in the first suit may become relevant as data from which to deduct any facts, ultimate in all possible future causes of action. Logical relevance is of infinite possibility; there is no conceivable limit which can be put on it. Defeat in one suit might entail results beyond all calculation by either party; a trivial controversy might being utter disaster in its train. There is no reason for subjecting the loser to such extravagant hazards; unless the decisions compel us to go so far, we will not do so. We have been able to find very little authority upon the point; most of the discussion has been as to whether mediate data, decided in the first suit, finally establish facts ultimate in the second. However, Winnipiseogee Lake Cotton & Woolen Co. V Laconia, 1895, 68 N.H. 284, 35 A. 252, appears to have been in accord with the taxpayer's position here. It concerned taxes, and the issue was as to the fair market value of the taxpayer's *930 property for the year 1893. In the year 1892 the value of this property had been fixed in an earlier tax proceeding, and the court used the value then found as an indisputable datum from which to infer the value for the following year, just as the taxpayer in the case at bar seeks to use the value of the wholly improved lots, as fixed by the Board. But that decision was specifically overruled eleven years later in Winnipiseogee Lake Cotton & Woolen Manufacturing Co. v. Laconia, supra, 74 N.H. 82, 65 A. 378, where the court reverted to the doctrine of King v. Chase, supra, 15 N.H. 9, 41 Am.Dec. 675, that a judgment conclusively establishes only facts in issue in the first cause of action; and where it held that the value of the property in 1892 had not been an issue in the first suit. The taxpayer relies upon Bedford V. Cowtan & Sons, Ltd., C.A., (1916) 1 K.B. 980, in which a question arose in a compensation case as to whether a workman's incapacity had been due to lead poisoning. A medical officer had so certified, and it was agreed that up to the time when the certificate issued, this was conclusive, for the statute expressly made it so. A majority of the Court of Appeal held that it necessarily followed that the workman suffered from lead poisoning during the period after the certificate, and not, as the employer maintained, from Parkinson's disease. They reasoned that, if he had suffered from lead poisoning up to the time of the certificate, his disease could not have turned into Parkinson's disease thereafter. The situation there before the court was, however, quite different from that before us. The medical certificate was not given in a separate

Janz N. Serrano proceeding, as we understand it; it was to be treated as a step in the compensation case itself. When the statute declared that it should be conclusive, that meant that it should be conclusive for all purposes in that proceeding. Even as it was, Phillimore, J., dissented upon the ground that the certificate could not properly be used as an indisputable datum for the later period; adopting, as we read his opinion, the distinction which we are now making. P On the other hand we have not been able to find any case which holds that facts- ultimate or mediate data- decided in the first suit, may not be used as indisputable mediate data in the second. The statement from Coke could not have had that situation in mind; indeed, as we have said, at the time it was made, the meaning presumably was that the question must be determined from the judgment roll alone. Theoretically it might have been thought possible that the winner in the first suit could use any fact determined from the roll as mediate data in the second; yet that is most unlikely either then, or when the Duchess of Kingston's Case, supra, was decided. The notion that a jury should be instructed that they might use facts appearing in a judgment roll, as mere evidence in their deliberations would certainly have been foreign to legal notions of those periods. Indeed, we have seen that it has not even yet become wholly settled whether facts decided in the first suit, and therein only mediate data, conclusively establish facts ultimate in the second. The Restatement of Judgments (Sec. 68, Comment p., Illustration 14) which we quote in the marginFN1 apparently meant to state the more restricted position, leaving open the question here at issue: i.e. whether facts decided in the first suit, even though ultimate in that suit, may be used as indisputable mediate data in the second. In the Illustration the fact decided in the first suit was a mediate datum in both suits: possibly, if it had been ultimate in the first, the result would have been different. FN1. Evidentiary facts. The rules stated in this Section are applicable to the determination of facts in issue, but not to the determination of merely evidentiary facts, even though the determination of the facts in issue is dependent upon the determination of the evidentiary facts.Illustration: 14. A brings an action against B for breach of contract. B denies that he made the alleged contract. At the trial A testifies that on a certain day B signed the contract in New York. C testifies that he saw B in London on that day. Verdict and judgment for B. Thereafter A brings an action against B alleging that B assaulted A on the same day in New York. The judgment in the prior action does not preclude A from proving that B was in New York on the day in question. establish facts, ultimate in the second, no fact decided in the first whether ultimate or a mediate datum, conclusively establishes any mediate datum in the second, or anything except a fact ultimate in that suit. Order affirmed. C.A.2 1944. THE EVERGREENS v. NUNAN 141 F.2d 927, 152 A.L.R. 1187, 44-1 USTC P 9265, 32 A.F.T.R. 531 END OF DOCUMENT

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[5] Thus, there is a dearth of authority upon the question. The truth appears to be that, so far as we can find, the courts have not had it clearly presented to them, as it is presented to us in the case at bar. Being free to decide, and for the reasons we have given, we do not hesitate to hold *931 that, even assuming arguendo that mediate data, decided in the first suit, conclusively

Janz N. Serrano Supreme Court of California. BERNHARD v. BANK OF AMERICA NAT. TRUST & SAVINGS ASS'N. age | 31 P L. A. 18057. March 6, 1942. Rehearing Denied April 3, 1942. In Bank. Action by Helen Bernhard, as administratrix with the will annexed of the estate of Clara Sather, deceased, against the Bank of America National Trust & Savings Association, to recover a bank deposit. From a judgment for defendant, the plaintiff appeals. Affirmed. For prior opinion, see, Cal.App., 114 P.2d 661. 228k725 Facts Necessary to Sustain Judgment 228k725(1) k. In General. Most Cited Cases The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction, and under such doctrine any issue necessarily decided in prior litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action. [3] KeyCite Citing References for this Headnote [6] KeyCite Citing References for this Headnote 228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(C) Persons Who May Take Advantage of the Bar 228k625 k. Mutuality of Estoppel. Most Cited Cases An estoppel is mutual, within general rule that the plea of res judicata is available only when there is privity and mutuality of estoppel, if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against it. [7] KeyCite Citing References for this Headnote 228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(C) Persons Who May Take Advantage of the Bar 228k625 k. Mutuality of Estoppel. Most Cited Cases 228 Judgment KeyCite Citing References for this Headnote 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(C) Persons Who May Take Advantage of the Bar 228k627 k. Parties of Record and Privies in General. Most Cited Cases Generally, the plea of res judicata is available only when there is privity and mutuality of estoppel, but an exception to such rule exists where liability of a defendant asserting plea of res judicata is dependent upon liability of one who was exonerated in an earlier suit brought by same plaintiff upon same facts. [8] KeyCite Citing References for this Headnote

228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(A) Judgments Operative as Bar 228k540 k. Nature and Requisites of Former Recovery as Bar in General. Most Cited Cases The rule of res judicata is based upon sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy. [4] KeyCite Citing References for this Headnote 92 Constitutional Law 92XXVII Due Process 92XXVII(E) Civil Actions and Proceedings 92k3973 Process or Other Notice 92k3974 k. In General. Most Cited Cases (Formerly 92k309(1)) The doctrine of res judicata must conform to mandate of due process of law that no person be deprived of personal or property rights by a judgment without notice and an opportunity to be heard. [5] KeyCite Citing References for this Headnote

West Headnotes

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106 Courts 106V Courts of Probate Jurisdiction 106k200.7 k. Determination of Title to Property. Most Cited Cases (Formerly 106k2001/2) A probate court had jurisdiction to determine, as an incident to final account of executor, title to bank account claimed by executor in his own right adversely to the estate. [2] KeyCite Citing References for this Headnote

228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(A) Judgments Operative as Bar 228k540 k. Nature and Requisites of Former Recovery as Bar in General. Most Cited Cases 228 Judgment KeyCite Citing References for this Headnote 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k723 Essentials of Adjudication

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(B) Persons Concluded 228k678 Privity in General 228k678(2) k. What Constitutes Privity in General. Most Cited Cases A privy, within general rule that the plea of res judicata is available only when there is privity and mutuality of estoppel, is one who, after rendition of a judgment, has acquired an interest in the subject matter affected by the judgment through one of the parties, as by inheritance, succession, or purchase.

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(A) Judgments Conclusive in General 228k634 k. Nature and Requisites of Former Adjudication as Ground of Estoppel in General. Most Cited Cases In determining validity of a plea of res judicata, three questions are pertinent, namely, was the issue decided in the prior adjudication identical with the one presented in the present action, was there a final judgment on the merits, was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication. [9] KeyCite Citing References for this Headnote

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162 Executors and Administrators 162XI Accounting and Settlement 162XI(E) Stating, Settling, Opening, and Review 162k512 Operation and Effect 162k513 In General 162k513(9) k. Persons and Matters Concluded in General. Most Cited Cases P A judgment settling an executor's account, objected to by heirs at law, which determined that decedent had made a gift of bank deposit to executor and discharged the executor, was res judicata on issue concerning the gift, in subsequent proceeding brought by one of the heirs at law, as administratrix with the will annexed, against bank's successor to recover amount of the deposit on ground that deposit was wrongfully paid to executor, notwithstanding heirs' formal change of capacity, and that there was no privity or mutuality of estoppel between executor and bank's successor. Prob.Code, 931. [10] KeyCite Citing References for this Headnote

were deposited in the San Dimas account and checks were drawn upon that account signed Clara Sather by Charles O. Cook to meet various expenses of Mrs. Sather. On October 26, 1933, a teller from the Los Angeles Bank called on Mrs. Sather at her request to assist in transferring her money from the Los Angeles bank to the San Dimas Bank. In the presence of this teller, the cashier of the San Dimas Bank, Mr. Cook, and her physician, Mrs. Sather signed by mark an authorization directing the Security First National Bank of Los Angeles to transfer the balance of her savings account in the amount of $4,155.68 to the First National Bank of San Dimas. She also signed an order for this amount on the Security First National Bank of San Dimas for credit to the account of Mrs. Clara Sather. The order was credited by the San Dimas Bank to the account of Clara Sather by Charles O. Cook. Cook withdrew the entire balance from that account and opened a new account in the same bank in the name of himself and his wife. He subsequently withdrew the funds from this last mentioned account and deposited them in a Los Angeles Bank in the names of himself and his wife. Mrs. Sather died in November, 1933. Cook qualified as executor of the estate and proceeded with its administration. After a lapse of several years he filed an account at the instance of the probate court accompanied by his resignation. The account made no mention of the money transferred by Mrs. Sather to the San Dimas Bank; and Helen Bernhard, Beaulah Bernhard, Hester Burton, and Iva LeDoux, beneficiaries under Mrs. Sather's will, filed objections to the account for this reason. After a hearing on the objections the court settled the account, and as part of its order declared that *810 the decedent during her lifetime had made a gift to Charles O. Cook of the amount of the deposit in question. [1] After Cook's discharge, Helen Bernhard was appointed administratrix with the will annexed. She instituted this action against defendant, the Bank of America, successor to the San Dimas Bank, seeking to recover the deposit on the ground that the bank was indebted to the estate for this amount because Mrs. Sather never authorized its withdrawal. In addition to a general denial, defendant pleaded two affirmative defenses: (1) That the money on deposit was paid out to Charles O. Cook with the consent of Mrs. Sather and (2) that this fact is res judicata by virtue of the finding of the probate court **894 in the proceeding to settle Cook's account that Mrs. Sather made a gift of the money in question to Charles O. Cook and owned no sums of money whatsoever at the time of her death. Plaintiff demurred to both these defenses, and objected to the introduction in evidence of the record of the earlier proceeding to support the plea of res judicata. She also contended that the probate court had no jurisdiction to pass upon Cook's ownership of the money because the executor resigned before the filing of the objections. This last contention was answered before judgment was entered, by the decision of this court in Waterland v. Superior Court, 15 Cal.2d 34, 98 P.2d 211, holding that the probate court has

Janz N. Serrano jurisdiction in such a situation. The trial court overruled the demurrers and objection to the evidence, and gave judgment for defendant on the ground that Cook's ownership of the money was conclusively established by the finding of the probate court. Plaintiff has appealed, denying that the doctrine of res judicata is applicable to the instant case or that there was a valid gift of the money to Cook by Mrs. Sather. Plaintiff contends that the doctrine of res judicata does not apply because the defendant who is asserting the plea was not a party to the previous action nor in privity with a party to that action and because there is no mutuality of estoppel. [2] [3] [4] The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action. See cases cited in 2 Freeman, Judgments, 5th Ed., sec. 627; 2 Black, *811 Judgments, 2d Ed., sec. 504; 34 C.J. 742 et seq.; 15 Cal.Jur. 97. The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy. See cases cited in 38 Yale L.J. 299; 2 Freeman, Judgments, 5th Ed., sec. 626; 15 Cal.Jur. 98. The doctrine also serves to protect persons from being twice vexed for the same cause. Ibid. It must, however, conform to the mandate of due process of law that no person be deprived of personal or property rights by a judgment without notice and an opportunity to be heard. Coca Cola Co. v. Pepsi-Cola Co., 6 W.W.Harr. 124, 36 Del. 124, 172 A. 260. See cases cited in 24 Am. and Eng.Encyc., 2d ed., 731; 15 Cinn.L.Rev. 349, 351; 82 Pa. L.Rev. 871, 872. [5] [6] Many courts have stated the facile formula that the plea of res judicata is available only when there is privity and mutuality of estoppel. See cases cited in 2 Black, Judgments, 2d Ed., secs. 534, 548, 549; 1 Freeman, Judgments, 5th Ed., secs. 407, 428; 35 Yale L.J. 607, 608; 34 C.J. 973, 988. Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. Ibid. A party in this connection is one who is directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment. 1 Greenleaf, Evidence, 15th Ed., sec. 523. See cases cited in 2 Black, Judgments, 2d Ed., sec. 534; 15 R.C.L. 1009; 9 Va.L.Reg.(N.S.) 241, 242; 15 Cal.Jur. 190; 34 C.J. 992. A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase. See cases cited in 2 Black, Judgments, 2d Ed., sec. 549; 35 Yale L.J. 607, 608; 34 C.J. 973, 1010, 1012; 15 R.C.L. 1016. The estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him. See cases cited in 2 Black, Judgments,

228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(B) Persons Concluded 228k667 Parties of Record 228k670 k. Representative or Official Capacity. Most Cited Cases Where a party, though appearing in two suits in different capacities, is in fact litigating the same right, the judgment in one estops him in the other. **893 *808 Appeal from Superior Court, Los Angeles County; Myron Westover, judge. Joseph Brenner, of Los Angeles, for appellant. Louis Ferrari, of San Francisco, and Edmund Nelson and G. L. Berrey, both of Los Angeles, for respondent. TRAYNOR, Justice.

In June, 1933, Mrs. Clara Sather, an elderly woman, made her home with Mr. and Mrs. Charles *809 O. Cook in San Dimas, California. Because of her failing health, she authorized Mr. Cook and Dr. Joseph Zeiler to make drafts jointly against her commercial account in the Security First National Bank of Los Angeles. On August 24, 1933 Mrs. Cook opened a commercial account at the First National Bank of San Dimas in the name of Clara Sather by Charles O. Cook. No authorization for this account was ever given to the bank by Mrs. Sather. Thereafter, a number of checks drawn by Cook and Zeiler on Mrs. Sather's commercial account in Los Angeles

2d Ed., sec. 534, 548; 1 Freeman, Judgments, 5th Ed., sec. 428; 35 Yale L.J. 607, 608; 34 C.J. 988; 15 R.C.L. 956. [7] The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria for *812 determining against whom a plea of res judicata may be asserted. P age | 33 The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. Coca Cola Co. v. Pepsi-Cola Co., supra. See cases cited in 24 Am. & Eng.Encyc., 2d Ed., 731; 15 Cinn.L.Rev. 349, 351; 82 Pa.L.Rev. 871, 872. He is bound by that litigation only if he has been a party thereto or in privity with a party thereto. Ibid. There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation. **895 No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. See 7 Bentham's Works, Bowring's Ed., 171. Many courts have abandoned the requirement of mutuality and confined the requirement of privity to the party against whom the plea of res judicata is asserted. Coca Cola Co. v. Pepsi-Cola Co., supra; Liberty Mutual Insur. Co. v. George Colon & Co., 260 N.Y. 305, 183 N.E. 506; Atkinson v. White, 60 Me. 396; Eagle, etc., Insur. Co. v. Heller, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490; Jenkins v. Atlantic Coast Line R. Co., 89 S.C. 408, 71 S.E. 1010; United States v. Wexler, D.C., 8 F.2d 880. See Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401. The commentators are almost unanimously in accord. 35 Yale L.J. 607; 9 Va.L.Reg.(N.S.) 241; 29 Ill.L.Rev. 93; 18 N.Y.U.L.Q.R. 565, 570; 12 Corn.L.Q. 92. The courts of most jurisdictions have in effect accomplished the same result by recognizing a broad exception to the requirements of mutuality and privity, namely, that they are not necessary where the liability of the defendant asserting the plea of res judicata is dependent upon or derived from the liability of one who was exonerated in an earlier suit brought by the same plaintiff upon the same facts. See cases cited in 35 Yale L.J. 607, 610; 9 Va.L.Reg.(N.S.) 241, 245-247; 29 Ill.L.Rev. 93, 94; 18 N.Y.U.L.Q.R. 565, 566, 567; 34 C.J. 988, 989. Typical examples of such derivative liability are master and servant, principal and agent, and indemnitor and indemnitee. Thus, if a plaintiff sues a servant for injuries caused by the *813 servant's alleged negligence within the scope of his employment, a judgment against the plaintiff of the grounds that the servant was not negligent can be pleaded by the master as res judicata if he is subsequently sued by the same plaintiff for the same injuries. Conversely, if the plaintiff first sues the master, a judgment against the plaintiff on the grounds that the servant was not negligent can be pleaded by the servant as res judicata if he is subsequently sued by the plaintiff. In each of these situations the party asserting the plea of res judicata was not a party to the previous action nor in privity with such a party under the accepted definition of a privy set

forth above. Likewise, the estoppel is not mutual since the party asserting the plea, not having been a party or in privity with a party to the former action, would not have been bound by it had it been decided the other way. The cases justify this exception on the ground that it would be unjust to permit one who has had his day in court to reopen identical issues by merely switching adversaries. [8] In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? In re Estate of Smead, 219 Cal. 572, 88 P.2d 348; Silva v. Hawkins, 152 Cal. 138, 92 P. 72, and People v. Rodgers, 118 Cal. 393, 46 P. 740, 50 P. 668, to the extent that they are inconsistent with this opinion, are overruled. [9] [10] In the present case, therefore, the defendant is not precluded by lack of privity or of mutuality of estoppel from asserting the plea of res judicata against the plaintiff. Since the issue as to the ownership of the money is identical with the issue raised in the probate proceeding, and since the order of the probate court settling the executor's account was a final adjudication of this issue on the merits (Cal.Prob.Code, sec. 931 [formerly Cal.Code Civ.Proc., sec. 1637]; see cases cited in 12 Cal.Jur. 62, 63; 15 Cal.Jur. 117, 120), it remains only to determine whether the plaintiff in the present action was a party or in privity with a party to the earlier proceeding. The plaintiff has brought the present action in the capacity of administratrix of the estate. In this capacity she represents the very same persons and interests that were represented in the earlier hearing on the executor's account. In *814 that proceeding plaintiff and the other legatees who objected to the executor's account represented the estate of the decedent. They were seeking not a personal recovery but, like the plaintiff in the present action, as administratrix, a recovery for the benefit of the legatees and creditors of the estate, all of whom were bound by the order settling the account. Cal.Prob.Code, sec. 931. See cases cited in 12 Cal.Jur. 62, 63. The plea of res judicata is therefore available against plaintiff as a party to the former proceeding. **896 despite her formal change of capacity. Where a party though appearing in two suits in different capacities is in fact litigating the same right, the judgment in one estops him in the other. 15 Cal.Jur. 189; Williams v. Southern Pacific Co., 54 Cal.App. 571, 202 P. 356; Stevens v. Superior Court, 155 Cal. 148, 99 P. 512; In re Estate of Bell, 153 Cal. 331, 95 P. 372. See Chicago, R. I. & P. R. R. Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, 53 A.L.R. 1265; Sunshine A. Coal Co. v. Adkins, 310 U.S. 381, 401 et seq., 60 S.Ct. 907, 84 L.Ed. 1263; Lee Co. v. Federal Trade Comm., 8 Cir., 113 F.2d 583; and cases cited in 16 N.Y.U.L.Q.R. 158, 159; 38 Yale L.J. 299, 310; 54 Harv.L.Rev. 890. The judgment is affirmed.

Janz N. Serrano GIBSON, C. J., and SHENK, CURTIS, EDMONDS, HOUSER, and CARTER, JJ., concurred.

CA. 1942 BERNHARD v. BANK OF AMERICA NAT TRUST & SAV. ASS'N 19 Cal.2d 807, 122 P.2d 892 END OF DOCUMENT

Supreme Court of California. KOEHLER v. HOLT MFG. CO. age | 34 P Sac. 1,329. Feb. 28, 1905. Department 1. Appeal from Superior Court, San Joaquin County; Frank H. Smith, Judge. Action by J. P. Koehler against the Holt Manufacturing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

conclusive in a subsequent suit by plaintiff for other installments alleged to be due under the order. KeyCite Citing References for this Headnote 231 Justices of the Peace 231IV Procedure in Civil Cases 231k89 Pleading 231k100 Issues, Proof, and Variance 231k100(1) k. Issues and Proof. Most Cited Cases In an action in justice's court for the amounts due under an order directing defendant to pay to plaintiff, a specified sum per month, the complaint alleged that there was due under the order a specified sum. This allegation was denied. Held, that the pleadings were sufficient to raise the issue whether the order had been previously revoked, and defendant, under the issue, could prove that the order had been revoked, so that there was nothing due under it. KeyCite Citing References for this Headnote

Janz N. Serrano payments under the order. The present suit is to recover the sum of $325, alleged to be due, under the terms of the order, for the 13 months beginning May 1, 1902, and ending June 1, 1903. The defendant answered, the court made its findings and entered judgment in favor of the defendant, and the plaintiff appeals from the judgment, and also from an order denying his motion for a new trial. The answer, among other things, alleged that theretofore, on May 26, 1902, the plaintiff began an action in a justice's court to recover the amounts due under the order for the months of January, February, March, and April of 1902; that thereafter such proceedings were had that the defendant appeared in said action after judgment was duly given in *337 said justice's court in favor of the defendant; that plaintiff appealed therefrom to the superior court of the county of San Joaquin; and that in the superior court judgment was duly given in favor of the defendant, to the effect that the defendant was not and is not liable on account of the contracts set forth in the complaint in this action, and that the acceptance of the order set forth in the complaint in this action had **74 been abrogated and annulled. The facts concerning the former adjudication are found by the court as alleged in the answer. We are of the opinion that the plaintiff is estopped by the former judgment. It is true, it was not rendered in a suit to recover the same installments that are involved in this action, and consequently it is not technically a bar to the present action. But it appears by the record in the former action that it was a suit to recover the amounts due, under the terms of the accepted order, for the four months previous to the time here involved; that in defense the defendant relied upon the same revocation of January 25, 1902, upon which he relies in the case at bar; that the validity and effect of that revocation was litigated and submitted to the court in that action; and that the court decided that it was valid, that its effect was to abrogate and annul the defendant's acceptance of the order and put an end to its liability thereon, and rendered judgment accordingly. The case comes clearly within the principle that a judgment operates as an estoppel to preclude the parties and privies from contending to the contrary of that point or matter of fact which, having been once distinctly put in issue by them, has been, on such issue joined, solemnly found against them. Outram v. Morewood, 3 East, 346; Cromwell v. County of Sac, 94 U. S. 353, 24 L. Ed. 195; Wiese v. S. F. Mus. Soc., 82 Cal. 645, 23 Pac. 212, 7 L. R. A. 577; Freeman v. Barnum, 131 Cal. 389, 63 Pac. 691, 82 Am. St. Rep. 355. If in the former suit the defense had been based exclusively on some other point than the effect of the revocation to terminate its liability-as, for instance, on the claim that the installments there sued for had been paid-there would be no bar, for the present suit is for different installments; and it would not have constituted an estoppel, for a decision that those installments had been paid would not affect the right to recover other installments.*338 But the point involved and decided was the effect of the revocation upon the liability of the defendant, which is precisely the point involved in the defense to the present action; and, as it was solemnly decreed

West Headnotes

KeyCite Citing References for this Headnote 228 Judgment 228XI Collateral Attack 228XI(B) Grounds 228k500 Errors and Irregularities 228k503 k. Defects and Objections as to Pleadings. Most Cited Cases A court having jurisdiction of an action has power to determine what facts are put in issue by the pleadings, when they are imperfectly stated, and having such power, it may make an erroneous decision of the question, which cannot be questioned collaterally. KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k714 Identity of Subject-Matter 228k714(3) k. Judgment in Action on Several Installments or Causes of Action from Same Transaction. Most Cited Cases Where, in an action for monthly sums due under an order made by a third person whereby he directed defendant to pay out of moneys to become due from him to the third person a specified sum per month to plaintiff, the question whether the order had been revoked was litigated, the decision that it had been revoked was

231 Justices of the Peace 231IV Procedure in Civil Cases 231k118 Judgment 231k130 k. Construction and Operation. Most Cited Cases The fact that the action originated before a justice of the peace, and that the judgment was rendered by the superior court on appeal, did not affect the conclusiveness of the matter litigated. **75 *336 Jacobs & Flack, for appellant. Louttit & Middlecoff, for respondent. SHAW, J.

On January 15, 1901, one George E. Chapman, upon a sufficient and valid consideration, made an order in writing directing the defendant, out of the moneys thereafter to become due from him to Chapman, to pay to the plaintiff, from and after the date thereof, the sum of $25 per month, to be applied upon the purchase price of a certain tract of land theretofore purchased of said Koehler by Kate Chapman, who was the wife of said George E. Chapman, and from whom he was living separate and apart. The defendants on the same day accepted the order in writing. Thereafter, until January 1, 1902, the defendant paid the sums specified in the order, in accordance therewith. On January 25, 1902, Chapman executed an instrument purporting to revoke, annul, and cancel the said order, and served it upon the defendant; directing it to make no further

Janz N. Serrano and adjudged against plaintiff in that action, he is now precluded from contending to the contrary of what was there decided. The effect of the estoppel is not changed by the circumstance that the former action originated before a justice of the peace, and that the judgment relied on was given by the superior court on appeal. Wiese v. S. F. Mus. Soc., supra. P The objection that the validity of the revocation was not put in issue in the former suit is not tenable. There was, it is true, no formal answer setting up the revocation, such as might be considered necessary in a suit begun in the superior court. But the pleadings in justices' courts are not required to be in any particular form, and when the case comes before the superior court on appeal their effect and sufficiency are to be judged by the same standards as when it is before the justice of the peace. In construing them, when they come under consideration collaterally, as in the present case, the rule excluding conclusions of law, as no proper part of a pleading, does not apply. Indeed, it may be doubted if, for the purpose of exhibiting the contentions of the respective parties in cases in a justice's court, conclusions either of law or fact are not always to be given full effect in any subsequent review of the proceedings. The complaint in the former case alleged that there is now due, owing, and unpaid from said defendant to plaintiff for said months, * * * under said written instrument, the sum of $100, and this allegation was denied. This appears sufficient to raise the issue. If the order had previously been revoked and annulled, there would not be any sum due or owing as alleged, and hence, under the liberal rule allowed in justices' courts, the defendant, upon this issue, could prove a revocation of the order. Furthermore, it must be conceded that the court, having jurisdiction of such an action, has power to determine what facts are put in issue by the pleadings, where they are ambiguously or imperfectly stated; and, having such power, it may make an erroneous decision of the question, and such decision cannot be questioned collaterally. There can be no doubt as *339 to the action of the superior court in the present instance. In the judgment rendered upon the appeal it made special findings, in which the order, the acceptance, and the revocation are set out in full; and, as a conclusion of law, it decided that the acceptance of the order was annulled and abrogated by the revocation. It did in fact in that case adjudge the very point here in issue, and the plaintiff is thereby estopped. The estoppel was properly pleaded, and the court found the facts upon sufficient evidence, and rightfully gave judgment in favor of the defendant. This issue is conclusive of the case, and it is unnecessary for us to consider the other points here presented. The judgment and order are affirmed. Cal. 1905 KOEHLER v. HOLT MFG. CO. 146 Cal. 335, 80 P. 73 END OF DOCUMENT

age | 35

We concur: ANGELLOTTI, J.; VAN DYKE, J.

Supreme Court of Missouri, Division No. 1. WOMACH v. CITY OF ST. JOSEPH. age | 36 P Feb. 22, 1907. Error to Circuit Court, Buchanan County; A. M. Woodson,

Judge.

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.

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

Janz N. Serrano 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 threshhold 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 *445 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 reipublic 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

West Headnotes

KeyCite Citing References for this Headnote 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(B) Persons Concluded 228k693 k. Husband and Wife. Most Cited Cases A judgment in favor of a city, in an action by a wife in her own right for personal injuries sustained in consequence of a defective sidewalk, is not res judicata in an action by the husband against the city for damages to him by reason of such injuries. *443 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 *444 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

which he seeks to recover in the second action. And again (*343): This latter maxim has [i. e., the maxim interest reipublic, 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 P age | 37 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 party subsequently to the action, or he must hold property subordinately. Id., p. 142. Says Day, J., in McDonald v. Gregory, 41 Iowa, loc. cit. 516: The term privity means mutual or successive relationship to the same rights of property. The executor is in privity with the testator, the heir with the ancestor, the assignee with the assignor, the donee with the donor, and the lessee with the lessor. One general question, then, seeking the very root of the controversy is: Who are privies? The answer is: Privies may be privies of blood (such as the heir to his ancestor), privies in representation (as executor or administrator to their deceased testator or intestate), privies in estate (as grantor and grantee, lessor and lessee, assignor and assignee), or privies in law (as tenant by the curtesy or in dower). See 1 Greenleaf (16th Ed.) 189, and cases from this court cited infra. Another general question seeking the root of the controversy is: Who are parties? Says Prof. Greenleaf, in an oftquoted passage (1 Greenl. on Ev. [16th Ed.] 523): It is also a most obvious principle of justice that no man ought to be bound by proceedings to which he was a stranger, but the converse of this rule is equally true, that by proceedings to which he was not a stranger he may well be held bound. Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment. This right involves also the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these

rights are regarded as strangers to the cause. See Henry v. Woods, 77 Mo., loc. cit. 281; State ex rel. v. Johnson, 123 Mo., loc. cit. 54, 55, 27 S. W. 399; State ex rel. v. St. Louis, 145 Mo., loc. cit. 567, 46 S. W. 981; Williams v. Husky, 192 Mo., loc. cit. 551, 90 S. W. 425. Before applying the foregoing rules, definitions, and doctrines to the case at bar, it will be well enough to give ear to the voice of a very high court in a great case. Thus: In the case of Duchess of Kingston, 2 Smith's Leading Cases (pt. 2, 8th Ed.) 734, *784, the Lords Spiritual and Temporal in Parliament assembled put to the judges, inter alia, the following question: Whether a sentence of the Spiritual Court against a marriage in a suit for jactitation of marriage is conclusive evidence in an indictment for polygamy? In disposing of the case, Sir William De Grey, afterwards Lord Walsingham, then the Lord Chief Justice of the Court of Common Pleas, in delivering the unanimous opinion of all the judges, laid down the following principles, arguendo: *446 What has been said at the bar is certainly true, as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third, for it would be unjust to bind any person who could not be admitted to make a defense, or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers. There are some exceptions to this general rule, founded upon particular reasons; but, not being applicable to the present subject, it is unnecessary to state them. From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment. 3. Did the trial court err in applying the law, as hereinbefore expounded, to the case at bar? We think so. It is self-evident the parties are not the same. Neither does Womach stand in the relation of being in privity with his wife; that is, in privity in a precise legal sense such as will meet the ends of the law. He sues, as will presently be seen, in his own right, and he does not hold any title to the damages in suit in subordination to the title of Mrs. Womach. He did not succeed to the position of Mrs. Womach as regards the subject of the estoppel, for the estoppel worked as to her personal damages in her own case was applied to his damages in his case. He is not in privity with her in blood (as an heir) i. e., his right of action

Janz N. Serrano was not cast upon him by descent. He is not in privity with her in representation (as executor or administrator). He is not in privity with her in estate; that is, as regards his right of action, he is not her grantee, lessee, donee, assignee, nor does he stand in any other like capacity. Nor is he in privity with her in law, as such privity is defined in the books. Take other tests--that is, look to the natural justice of the thing, to those natural equities having their seat in the human breast--and see if he was not a stranger. Did he have an opportunity of recovering his damages in her suit? No. Could he appeal in that case? No. Did he have his day in court in that case? No. Was he entitled to be heard in that cause, or could he control the proceedings? No. Could he adduce testimony? No. Could he crossexamine witnesses produced by defendant? No. Was he not denied by the law the right (had he invoked the right) to testify in his wife's cause? Certainly so. Joice v. Branson, 73 Mo. 28; Harrington v. Sedalia, 98 Mo. 583, 12 S. W. 342. By what recognized test of reason or authority, then, and under what principle of law, is it that he is held bound by that judgment, or becomes anything but a stranger to that proceeding? How comes it that Womach loses his own right of action, his own damages, by a judgment in another cause in which he could not lift a finger to protect that right, or secure those damages? It seems to me that the proposition that Womach is bound by the judgment against his wife is more than a paradox--it rises to the bad eminence of a solecism in the law. The formulation of legal principles is not for a day or for one case. Such principles are for general use in like cases until overthrown. It is obvious, then, that if Mrs. Womach's case is res judicata as to her husband, by the same token, if the husband's suit had come on first, the judgment in his case ought to be res judicata in the wife's case. Nay, more, if Mrs. Womach had been driving a team belonging to John Doe, and one of Doe's horses had broken its leg in the same accident, through the same cause, and John Doe had sued the city, he would be precluded by a judgment against her in her case, or against the husband in his; there being factors in common in all these suits. So, too, the same principle once established would allow a judgment, casting a parent suing for expenses and loss of services, to operate against a minor child, in its suit for injuries, and vice versa--results visibly pregnant with mischievous injustice. Indeed, since no man loses his property except by his own deed, transgression, or neglect, to condemn a man in his own independent right of action, unheard, is to violate our Bill of Rights, because section 30 of that bill [Ann. St. 1906, p. 166], provides that: No person shall be deprived of life, liberty or property without due process of law. Now, property, in one sense, may mean a chose in action. A chose in action, in one sense, may be any right to damages, whether arising from the commission of a tort, the omission of a duty, or the breach of a contract. See titles Property and Chose in Action, Black's L. Dict. Due process of law means law in the regular course of administration through the courts. Jones v. Yore, 142 Mo., loc. cit. 44, 43 S. W. 384. The term *447 due process of law is equivalent to the term the law of the land, a

term as old as Magna Charta. And, as said by Webster, in a brief sparkling forever as a jewel in the crown of the American Bar, in the Dartmouth College Case, 4 Wheat., loc. cit. 581, 4 L. Ed. 629: By the law of the land is most clearly intended the general law; a law, which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the P age | 38 protection of the general rules which govern society. Barber Asphalt Co. v. Ridge, 169 Mo., loc. cit. 384, 68 S. W. 1043. In judicial proceedings, says Andrews, J., in Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323, due process of law requires notice, hearing, and judgment. * * * In this case the cause of action of Womach was taken from him without notice, without a hearing, and without a judgment against him. Hence, it seems to me, he was denied due process of law to all vital intents and purposes. It is manifest there was no such identity of the thing demanded, there was no such identity of the cause of demand, and there was no such identity of the parties in the character in which they are litigants, as meet the essential conditions upon which the plea of res judicata proceeds under the sensible rule announced by Mr. Herman, heretofore quoted; and this opinion might conclude at this point, were it not for two cases decided by the Court of Appeals of Kansas City (Brown v. Railroad, 96 Mo. App. 164, 70 S. W. 527, and Morris v. Kansas City, 117 Mo. App. 298, 92 S. W. 908), in which another view was entertained and a contrary conclusion reasoned out. The dignity imparted to the contention of defendant in the case at bar by the opinions of that learned court justifies a further and closer consideration--certainty in the law, as a rule of right, being an essential condition of judicial wisdom-- and no change in such rule can justify itself, except it proceeds on the fullest examination and solidest grounds. 4. The Morris Case follows the Brown Case. As we gather it, there was no vital difference in principle between the two. There was an incidental difference, however, which it may be well to point out in passing. Brown's wife was injured by the alleged negligence of the Missouri Pacific Railway Company. Thereupon two suits were instituted. In one it was sought to recover for injuries to the wife, and in that suit husband and wife joined as parties plaintiff. Her case proceeded to final judgment, and, when the husband's case came on, the judgment in the wife's case, to which he was a nominal party, was offered and allowed below as an adjudication concluding the railway company on the issues of negligence and contributory negligence raised in the wife's case, leaving nothing open except the quantum of his damages. On appeal, the ruling, nisi, was approved. In the Morris Case two suits were instituted, one by the husband and one by the wife; the wife suing alone. When the husband's case came to trial, a former adjudication in favor of the wife was pleaded and allowed as res judicata. On appeal that ruling was approved. While a superficial view might draw a distinction between the Brown and the Morris Cases, in that in the Brown Case the husband was a party to the wife's suit (thus meeting, at least, one technical requirement of res judicata), yet it must be apparent that he was

not a real party. His rights were not in litigation. He was a mere figurehead--a nominal party, joined at the option of the wife, under Rev. St. 1899, 546 [Ann. St. 1906, p. 585], which provides that: A married woman may, in her own name, with or without joining her husband as a party, sue and be sued in any of the courts of this state having jurisdiction, with the same force and effect as if she was a feme sole, and any judgment in the cause shall have the same force and effect as if she were unmarried. In this condition of the record in those two cases, the principle involved is the same, and, if the Brown Case is good law, the Morris Case is good law; so that, our consideration may be confined to the Brown Case alone. We may approach that case with a preliminary examination of the origin and nature of a husband's right to damages for an injury to his wife. Such ground of action is an old one, coming to us from the common law of England. In the old law (as now) the husband might sue for damages for taking his wife away. The old law was so strict in this point, says Blackstone (3 Blk. Com. *139), that, if one's wife missed her way upon the road, it was not lawful for another man to take her into his house, unless she was benighted and in danger of being lost or drowned; but a stranger might carry her behind him on horseback to market to a justice of the peace for a warrant against her husband, or to the Spiritual Court to sue for a divorce. Drawing from the same well of the common law, it is pointed out (*140) that three kinds of actions are entertained for injuries offered to any person, considered as a husband, the third kind relating to the beating of a man's wife, or other ill use of her, for which, says our author, if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the name of the husband and wife jointly; but if the beating or other maltreatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass, in the nature of an action upon the case, for this ill usage, per quod consortium amisit, in which he shall recover a satisfaction in damages. *448 Says Cooley (1 Cooley on Torts [3d Ed.] p. 470): A personal injury to the wife gives rise to two causes of action; one in favor of the wife to recover for the physical injury, the pain and suffering, expense, if any, paid from her own estate, and loss of earning capacity, where she has a right to her earnings and is engaged in business or labor on her own account, and one in favor of the husband to recover for loss of his wife's services, society, etc., and for any expense incurred. * * * The term services, when employed to indicate the ground on which the husband is allowed to maintain an action, is used in a peculiar sense, and fails to express to the common mind the exact legal idea intended by it. Whatever may have been the case formerly, or may now be the case in some states of society, service, in the sense of labor or assistance, such as a servant might perform or render, is not always given by or expected from the wife; and, if an action were to put distinctly in issue the loss of such services, it might, perhaps, be shown in the

Janz N. Serrano most serious cases that there was really no loss at all. But it could not be reasonable that the wrongdoer should escape responsibility because the family he has wronged were in such circumstances, moved in such circles, and were subject to such claims, by reason of public position or otherwise, that physical labor by the wife was neither expected nor desired. The word service has come to us in this connection from the times in which the action originated, and it implies whatever of aid, assistance, comfort, and society the wife would be expected to render to or bestow upon her husband, under the circumstances and in the condition in which they may be placed, whatever those may be. The two independent rights of action--the one for injuries to the body of the wife, for the incident pain and anguish, together with expenses and loss of earning capacity (the latter in certain cases pointed out by the books); the other consequential injuries suffered by the husband in loss of society, services, expenses, etc., known in the old law as an action per quod consortium amisit--have come down to us hand in hand as distinct causes of action. Both suits result from the same injury to the wife, it is true, but the causes of action are separate, and each an entirety unto itself. Both spring into independent existence at once upon such injury; the one seeking recompense for injuries to the person of the wife, and the other recompense for injury to the husband as husband, and touches the marital relation. Smith v. St. Joseph, 55 Mo. 456, 17 Am. Rep. 660; Furnish v. Railroad, 102 Mo. 669, 15 S. W. 315, 22 Am. St. Rep. 800; Thompson v. Railroad, 135 Mo. 217, 36 S. W. 625. See, also, Union Pac. Ry. Co. v. Jones (Colo. Sup.) 40 Pac. 891. In the present condition of our statutory law, the ownership of the proceeds of a judgment in favor of the wife no longer remains as at common law. There, such damages belonged to the husband when recovered by judgment in a joint action with his wife. Reeve's Dom. Rel. (4th Ed.) pp. 87, 88; Schouler's Dom. Rel. (5th Ed.) 77. But, in our day, they belong to the wife alone. So runs the written law. Rev. St. 1899, 4340 [Ann. St. 1906, p. 2382], which provides that: * * * Any personal property, including rights in action, belonging to any woman * * * or has grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband. That section also provides that she may sue in her own name without joining her husband. In Smith v. St. Joseph, supra, it was contended that a recovery in a suit by husband and wife for injuries to the wife was a bar to the prosecution of a suit on behalf of the husband. But it was pointed out in that case that the two causes of action, the one for the wife and the other for the husband, could not be joined, and hence there was no bar in consequence of the previous recovery in the wife's case. Further, as indicating the distinctness of the two causes of action, we may profitably consider Smith v. Warden, 86 Mo. 382. In that case, in the wife's suit there was an offer to show that the husband had executed a release for his own damages and the damages in suit. Page 394. The court instructed the jury that such release did not constitute a defense to the action. (Page 396); and it was held that the instruction was

right, and the release was no bar, in the absence of proof that the husband was agent of the wife and had authority to settle her damages. To further the argument, regard may be had to Thompson v. Railroad, supra. In that case the husband's suit was on trial, and the court gave the following instruction: When a married woman, P age | 39 without fault on her part, is personally injured by the negligence of another, two causes of action arise; one for the wife for the pain and suffering and the expenses she has herself paid, and the other by the husband, in his own favor, for what he has actually lost. Now, this is the husband's suit, and not the wife's, and a decision of this case on its merits in no wise affects or has anything to do with the wife's case. That case must be independently tried, upon its own merits, and this case must be tried upon its merits alone, on the testimony introduced here, and none of the things mentioned above for which the wife sued can be considered in this case. There was a verdict for defendant, which was set aside, and from that order defendant appealed. It was contended there was error in the foregoing instruction; but this court said there was no error, that it was proper to inform a jury *449 that the wife had her own action for injuries like this, and what elements enter in her case, and the grounds of her husband's action, and that each is distinct. Page 222 of 135 Mo., and page 627, of 36 S. W. See, also, Blair v. Railroad, 89 Mo. 334, 1 S. W. 367. It seems to us the reasoning underlying the foregoing authorities applies with equal force to the case at bar, and is against defendant's position; its tendency being to show that the two causes of action are so distinct that they cannot be joined, that the damages to each constitute a different subject-matter of litigation, that the title to the damages rests in different parties, and that one party may not release the damages due the other. Attending to persuasive authority, we find the precise question in hand has been passed on elsewhere, and the conclusion in the great majority of instances is also against defendant's position. Thus: In Neeson v. City of Troy, 29 Hun (N. Y.) 173, the husband sued. At the trial he was allowed to introduce the judgment roll in his wife's case, in which she recovered damages for the same injury. On appeal this was held error. It was held that the husband was not in privity with the wife in her suit, and that the fact that the same evidence, to a great extent, may be applicable in this case, as was given in the action of the wife, such as proof of defendant's negligence, etc., does not make the former judgment conclusive in this action. In Groth v. Washburn, 39 Hun (N. Y.) 324, the same point arose. There the defendant offered evidence, as we take it, to disprove his negligence. This evidence was rejected, and its rejection was predicated on the conclusion that the judgment in the wife's case was conclusive upon the subject of defendant's negligence. This was held error. It was ruled (per curiam) that: The action was not between the same parties, or those in privity with them. It was not in reference to the same subject-matter. It involved it only incidentally, and it was not an adjudication of the rights of

the plaintiff. His action was entirely different from that of the wife. The judgment record was neither an estoppel in favor of the plaintiff, nor was it conclusive evidence on the subject of negligence. To the same effect is the reasoning in Chapman v. Frank (Com. Pl.) 5 N. Y. Supp. 448, and in Stamp v. Franklin, 144 N. Y. 607, 39 N. E. 634. In Walker v. Philadelphia, 195 Pa. 168, 45 Atl. 657, 78 Am. St. Rep. 801, it was sought to bind the defendant in the husband's suit by the verdict and judgment in the wife's suit, so as to conclude the defendant city on the issue of its negligence. This was held error, because the record of the wife's action is res inter alios acta, and, so far from being conclusive of the city's negligence, is not admissible at all. In Selleck v. Janesville, 104 Wis. 570, 80 N. W. 944, 47 L. R. A. 691, 76 Am. St. Rep. 892, it was held that, in an action to recover damages resulting to a husband from personal injuries to his wife, defendant's liability is not rendered res judicata by reason of a previous recovery by the wife for her own injuries; the husband not being a party to the former action, and there being no privity between him and his wife as to the claim in the latter suit. The reasoning employed by the Supreme Court of Texas in G., H. & S. A. Ry. Co. v. Kutac, 72 Tex. 643, 11 S. W. 127, fits the case at bar and is against defendant's position. Somewhat applicable, too, is Sorensen v. Sorensen (Neb.) 98 N. W. 837. See, also, Perkins v. Goodin, 111 Mo. App., loc. cit. 442, 85 S. W. 936, and the cases and authorities cited, and Black on Judgments (2d Ed.) 556. Cases may be found to the contrary effect. For example: Anderson v. Railroad, 9 Daly (N. Y.) 487; Pettengill v. City of Yonkers (Sup.) 1 N. Y. Supp. 805; Lindsey v. Danville, 46 Vt. 144. But we think the doctrine of those cases is unsound. Brown v. Railroad leans on the Lindsey Case--a stout staff, for it was written by a great judge (Redfield); but even the worthy Homer sometimes nods (quandoque bonus dormitat Homerus). In deciding the Brown Case, the Kansas City Court of Appeals relied upon the proposition that the conclusiveness of judgments is not confined to the entire matter litigated, but includes the finding of any facts which were in issue and necessarily decided. This proposition is sustained by the authorities cited, but it must go with the condition that the one to be bound is either a party, or in privity with a party. Furthermore, that case proceeds upon the theory that, in order to allow the application of the doctrine of res judicata, all the parties may not be identical. The authorities cited sustain that proposition also. But care must be taken not to introduce confusion. It will be found, we think, in all cases where the point was made, or adjudicated, that the party to be bound had his day in court--that he was either a party or in privity, and had once the chance to meet his adversary face to face on the issue, in fact or constructively. Many cases have been adjudicated showing the nicest discrimination in the application of estoppel by judgment, and in none of them will a rigid analysis show a deviation in principle from the rules laid down and principles announced hereinbefore as governing the application of res judicata. See, for

Janz N. Serrano example, Spratt v. Early (Mo. Sup. not yet officially reported) 97 S. W. 925; Donnell v. Wright (Mo. Sup. not yet officially reported) 97 S. W. 928; Edgell v. Sigerson, 26 Mo. 583; State ex rel. v. Railroad, 99 Mo. 30, 12 S. W. 290, 6 L. R. A. 222; Nave v. Adams, 107 Mo. 414, 17 S. W. 958, 28 Am. St. Rep. 421; Young v. Byrd, 124 Mo. 590, 28 S. W. 83, 46 Am. St. Rep. 461; State ex rel. v. Branch, 134 Mo., loc. cit. 604, 36 S. W. 226, 56 Am. St. Rep. 533; Wiggin v. St. Louis, 135 Mo., loc. cit. 569, 37 S. W. 528; *450 Exposition Driving Park v. Kansas City, 174 Mo. 425, 74 S. W. 979; Donnell v. Wright, 147 Mo. 639, 49 S. W. 874; Watson v. Walther, 23 Mo. App. 263; City of Springfield v. Plummer, 89 Mo. App. 515; Matousek v. Catholic Union, 192 Mo. 588, 91 S. W. 538. It is our conclusion that Brown v. Railroad and Morris v. Kansas City should not be followed; that the trial court should have sustained the motion to strike from defendant's answer the plea of res judicata; that, failing in this, the court should have excluded the judgment roll in the wife's case; and that, finally, the court erred in giving defendant's mandatory instruction. It will do to say that our Brother WOODSON, who does not sit in the case, but who presided, nisi, informs us he felt constrained by Brown v. Railroad, and that, if left to his own judgment on the law, he would have refused the peremptory instruction, refused to admit the judgment roll in the wife's case, and would have sustained plaintiff's motion to strike out the plea of res judicata. The cause is reversed and remanded to be tried in accordance with this opinion. All concur, except WOODSON, J., not sitting. Mo. 1907. WOMACH v. CITY OF ST. JOSEPH. 201 Mo. 467, 100 S.W. 443, 10 L.R.A.N.S. 140 END OF DOCUMENT

Supreme Court of Pennsylvania. BROBSTON v. BURGESS AND TOWN COUNCIL OF BOROUGH OF DARBY. age | 40 P June 25, 1927. Action by Joseph Brobston against Burgess and the Town Council of the Borough of Darby. Plaintiff was nonsuited, motion to take off nonsuit was refused, and plaintiff appeals. Affirmed.

repair.

Municipality is under implied duty to keep streets in proper

Janz N. Serrano Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

KeyCite Citing References for this Headnote 268 Municipal Corporations 268XII Torts 268XII(C) Defects or Obstructions in Streets and Other Public Ways 268k810 Actions for Injuries 268k814 k. Parties. Most Cited Cases That another may be sued does not prevent action against city for defect in street. John E. McDonough, of Chester, and Graham, Garaguso & Foley, of Philadelphia, for appellant. *333 John B. Hannum, Jr. (of Hannum, Hunter & Hannum), of Chester, and James B. Robertson, of Darby, for appellee. SADLER, J.

West Headnotes

KeyCite Citing References for this Headnote 364 Street Railroads Street railway is under implied duty to keep in proper repair portions of highway occupied by tracks. KeyCite Citing References for this Headnote 379 Torts 379I In General 379k129 Persons Liable 379k134 k. Joint Tortfeasors in General. Most Cited Cases (Formerly 379k22) Joint tort-feasorship can only be affirmed when parties have community of interest and equal right to direct movements of each other. KeyCite Citing References for this Headnote 388 Trial 388IV Reception of Evidence 388IV(A) Introduction, Offer, and Admission of Evidence in General 388k32 Necessity and Scope of Proof 388k35 k. Stipulations and Agreed Statements. Most Cited Cases Refusing plaintiff permission to establish, by witnesses, matters already agreed to and voluntarily placed before court, held not error. *332 **849 Appeal from Court of Common Pleas, Delaware County; Bouton, P. J., Specially Presiding.

KeyCite Citing References for this Headnote 228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded 228k584 k. Nature and Elements of Bar or Estoppel by Former Adjudication. Most Cited Cases Same cause of action cannot be retried, and second suit cannot be predicated on fact question already passed on. KeyCite Citing References for this Headnote 228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses 228XIII(C) Persons Who May Take Advantage of the Bar 228k630 k. Joint Wrongdoers. Most Cited Cases Where plaintiff failed to recover against street car company ultimately liable, he could not later sue municipality for identical negligence. KeyCite Citing References for this Headnote 268 Municipal Corporations 268XII Torts 268XII(C) Defects or Obstructions in Streets and Other Public Ways 268k757 Duty to Construct or Repair Streets and Other Ways 268k757(1) k. In General. Most Cited Cases

Brobston, plaintiff, was injured while driving an automobile on a public highway in the borough of Darby. It was claimed that the paving within or along the *334 tracks of the Philadelphia Rapid Transit Company, occupying the street by virtue of a grant to a predecessor, regularly acquired by the operating corporation, had become in disrepair, and, as a result, the steering wheel of the machine was wrenched from the driver's hand, with the resulting injury complained of. Suit was brought against the street railway in the courts of Philadelphia county to recover damages. The fact that it maintained its tracks under a franchise which required it to keep the street in proper condition, was averred, and the failure to perform this duty, with the amount of damage resulting, set forth in the statement filed. At the trial, proof was offer to show the street surface was not defective, and therefore the charge of negligence was unfounded, and testimony produced of contributory negligence on part of the plaintiff. After a full and careful charge, the questions of fact were submitted to a jury, and a verdict rendered for the defendant, upon which judgment was entered, and no appeal taken. [1] Later the present action was brought in the court of common pleas of Delaware county against the borough of Darby, present defendant, based on the same cause of action as asserted in the suit against the transit company. The affidavit of defense, setting forth the record of the first proceeding, was called to the attention of the court when the case was called, and counsel for plaintiff admitted**850 that Brobston was the same person who was plaintiff in an action brought in Philadelphia, that the action there brought was for the same injuries occurring at the place, and in the time and manner for which the action is brought in this court, now on trial, and that a verdict in that case, decided in Philadelphia, was entered by the jury in favor of the defendant. The cause of action, and the facts upon which the right to recover rested, were the same; the only difference being in the name of the defendant. These stipulations were avowedly entered of record to enable the court to pass upon the legal question involved, as to the right to a plaintiff *335 to recover under such circumstances. Notwithstanding the formal admissions, counsel made an offer to prove the same facts, which the court refused, and, on motion, a nonsuit was entered because of the former adjudication. Complaint is now made that the

plaintiff should have been permitted to call witnesses to establish the matters already agreed to, but we see no merit in the complaint. All facts essential to the legal determination of liability were before the court, and had been voluntarily placed there by consent of both parties. Lowe v. Haggerty, 283 Pa. 459, 129 A. 457, is cited as P age | 41 showing this rejection of testimony constituted prejudicial error, but the decision referred to is not authority for so holding. There the question of the effect of a former judgment for defendant, when sued by an injured guest, was held not to bar a later suit by the driver of the car which had been struck by another, where no previous record was produced disclosing what had been passed upon in the first proceeding, and the defense was not asserted until the motion for a new trial was presented. Under such circumstances it was held impossible to determine what issue was involved in the previous trial. A very different situation appeals here, and the learned court below properly disposed of the merits on the record as made up by the parties. The motion to take off the nonsuit, granted in the present case, was refused, and plaintiff has appealed. [2] It is insisted that the municipality is liable for injuries which resulted from a failure to keep its street in repair, and, as a general proposition, there can be no doubt of the right to recover damages sustained, where such legal obligation has not been performed, and it has had actual or constructive notice of the faulty condition. Bucher v. Sunbury, 216 Pa. 58, 64 A. 906. This rule applies, though an autting owner may have been responsible for the disrepair, and the party injured may sue either the borough or the one primarily responsible for the defect. Brookville v. Arthurs, 130 Pa. 501, 18 A. 1076; *336 Fowler v. Jersey Shore, 17 Pa. Super. Ct. 366. The municipality may recover over from the negligent one, where the loss was caused by him, and not by some independent act of the municipality itself. Johnson Co. v. Philadelphia, 236 Pa. 510, 84 A. 1014, 42 L. R. A. (N. S.) 512, Ann. Cas. 1914A, 68; Reichard v. Bangor, 286 Pa. 25, 132 A. 803. But the liability of the borough in such case is secondary and not primary, and it cannot be joined in a suit with the abutting owner as a tort-feasor (Dutton v. Lansdowne Borough, 198 Pa. 563, 48 A. 494, 53 L. R. A. 469, 82 Am. St. Rep. 814; Mintzer v. Greenough, 192 Pa. 137, 43 A. 465; Brookville v. Arthurs, supra,; Id., 152 Pa. 334, 25 A. 551; Smith v. Henry, 66 Pa. Super. Ct. 538), for the joint right of action against wrongdoers arises only from unity of fault (Cleary v. Quaker City Cab Co., 285 Pa. 241, 132 A. 185) though the common consequence is caused by their separate acts (Wiest v. El. Tr. Co., 200 Pa. 148, 49 A. 891, 58 L. R. A. 666; Howard v. Union Tr. Co., 195 Pa. 391, 45 A. 1076; Little Schuylkill Nav. Co. v. Richards, 57 Pa. 142, 98 Am. Dec. 209; Eckman v. L. & W. Coal Co., 50 Pa. Super. Ct. 427). Joint tort-feasorship can only be affirmed when the parties charged have a community of interest in the object and purposes of the undertaking and an equal right to direct and govern the movements and conduct of each other in respect thereto. Betcher v. McChesney, 255 Pa. 394, 396, 100 A. 124.

[3][4][5] Even in the absence of a contract, a street railway company is under the implied duty to keep in proper repair the portions of a highway occupied by its tracks. Reading v. United Traction Co., 215 Pa. 250, 64 A. 446, 7 Ann. Cas. 380; Chambersburg v. Railway Co., 258 Pa. 57, 101 A. 922; Swarthmore v. P. R. T. Co., 280 Pa. 79, 124 A. 343, 33 A. L. R. 128. Since the Constitution of 1874, which requires municipal consent before entry upon the streets, such obligation is usually imposed in terms by franchises granted, and the duty to maintain the roadway is ordinarily made by agreement an express condition of the right to locate. But the obligation so assumed is a mere substitute for the commonlaw duty imposed when possession is taken of a public road. Com. v. Newton Township, 276 Pa. 172, 120 A. 123. If there is a failure to maintain, a recovery for the cost of necessary repairs *337 may be had in assumpsit under its implied or express agreement to reimburse (Collingdale Borough v. Philadelphia Rapid Transit Co., 274 Pa. 124, 117 A. 909), or, if one is injured by reason of its negligence in regard thereto, damages may be recovered against it (Gates v. P. R. R. Co., 150 Pa. 50, 24 A. 638, 16 L. R. A. 554). A similar duty to keep in proper repair rests on a municipality as to its streets, and the fact that another may also be sued does not prevent an action against it (Burrell Tp. v. Uncapher, 117 Pa. 353, 11 A. 619, 2 Am. St. Rep. 664; Dutton v. Lansdowne, supra; Aiken v. Philadelphia, 9 Pa. Super. Ct. 502; **851 Lawrence v. Scranton, 284 Pa. 215, 130 A. 428, 41 A. L. R. 454), though it may secure indemnity from the one responsible for the defect it compelled to pay damages. The street railway company is not to be sued jointly with the city, for it is no more to be treated as a tort-feasor than is the abutting owner, though liable to suit for its own default. [6] The plaintiff here did not attempt to sue the railway company and the borough, but brought his action against the former and lost. He now sues the municipality for the same cause of action, based on the same facts, alleging it was responsible for permitting the transit company to leave the highway in improper condition. The court held the action barred by the former proceeding, and we think properly so. If a recovery were now had, then the borough defendant could compel, by suit, the street railway to pay for the injury, where in a regular judicial proceeding it has been declared not to be responsible. The plaintiff elected to sue the one ultimately liable, and failed to recover, and he cannot now be permitted to secure judgment against the borough for this identical negligence. If so, then the latter could seek a recovery from the former, though its nonliability has been adjudicated, and compel it to defend a proceeding based on a cause of action previously determined in its favor. [7] In determining whether a prior judgment of a court of competent jurisdiction is conclusive of a pending suit, the inquiry is usually confined to the identity of the *338 cause of action, and it was admittedly the same here. If the parties were also identical, there could be no question that the former adjudication was a bar, for the determination of a fact governing the right to recover is controlling (First Nat. Bank v. Dissinger, 266 Pa. 349, 109 A. 626;

Janz N. Serrano Tasin v. Bastress, 284 Pa. 47, 130 A. 417; Havir's Estate, 283 Pa. 292, 129 A. 101), as to all contentions which could properly have been passed upon on the first trial (Hochman v. Mortgage Finance Corp., 289 Pa. 260, 137 A. 252; McGunnegle v. R. R. Co., 269 Pa. 404, 112 A. 553; P. & L. E. R. R. Co. v. McKees Rocks, 287 Pa. 311, 135 A. 227). This rule applies not only to the actual parties to the litigation, but binds those who are in privity with them. Com. v. Kelly, 287 Pa. 139, 134 A. 514. The same cause of action cannot be retried, and a second suit cannot be predicated on a question of fact already passed on. Loughrey v. P. R. R. Co., 284 Pa. 267, 131 A. 260; Ludwig Co. v. Greene, 88 Pa. Super. Ct. 142. Ordinarily, an estoppel by judgment is applied where parties are the same, or in privity with them, which include those who are responsible over (34 C. J. 1031; Cressler v. Brown, 79 Okl. 170, 192 P. 417), but an apparent exception to the rule of mutuality has been held to exist where the liability of defendant is altogether dependent upon the culpability of one exonerated in a prior suit upon the same facts, when sued by the same plaintiff; in such cases the unilateral character of the estoppel is justified by the injustice which would result in allowing a recovery against a defendant for conduct of another, when that other has been exonerated in a direct action. 34 C. J. 988. If the liability rests on the proof of wrongdoing by one, and the necessary facts to establish it have been found adversely in a prior proceeding, a suit against another, based on the same cause of action, cannot be maintained; a legal principle recognized in Bigelow v. Copper Co., 225 U. S. 111, 32 S. Ct. 641, 56 L. Ed. 1009, Ann. Cas. 1913E, 875, though not there applied, since the parties involved were joint tort-feasors. The purpose underlying res adjudicata [or estoppel by judgment] is more than to *339 serve simply the interest of one who may see fit to invoke the rule; it is a measure of public policy, based on the principle that the general welfare requires litigation not to be interminable. State Hospital v. Water Supply Co., 267 Pa. 29, 37, 110 A. 281, 283. It is for like reason that actions for damages may not be split up, and different suits be instituted for loss to person and property. Fields v. P. R. T. Co., 273 Pa. 282, 117 A. 59. Numerous authorities are to be found where a second action for negligence, based on the same cause, has been brought after an adverse verdict in a former suit against another, resulting from lack of necessary proof, or where the same established contributory want to care, and the judgment in the first was held a conclusive bar as to the second. This has been decided where the parties bore the relation of master and servant, and the jury found against the plaintiff in the action first brought (Betcher v. McChesney, 255 Pa. 394, 100 A. 124; McNamara v. Chapman, 81 N. H. 169, 123 A. 229, 31 A. L. R. 188; New Orleans Ry. Co. v. Jopes, 142 U. S. 18, 12 S. Ct. 109, 35 L. Ed. 919; Wade v. Campbell, 211 Mo. App. 274, 243 S. W. 248; Pangburn v. Buick Motor Co., 211 N. Y. 228, 105 N. E. 423; Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649; Begin v. Bus Co., 167 Minn. 84, 208 N. W. 546; Lasher v. McAdam, 125 Misc. Rep. 685, 211 N. Y. S. 395; Muntz v. Ry. Co., 116 La. 236, 40 So. 688), or the relation of the respective defendants was that of principal

Janz N. Serrano and agent (Emma Silver Mining Co. v. Mining Co. [C. C.] 7 F. 401), lessor or the operating company (Anderson v. West Chicago St. Ry. Co., 200 Ill. 329, 65 N. E. 717; Jenkins v. A. C. L. R. R. Co., 89 S. C. 408, 71 S. E. 1010; Portland Gold Mining Co. v. Stratton [C. C. A.] 158 F. 63, 16 L. R. A. [N. S.] 677), or partner, when the wrong was committed while engaged in firm business (McFaddin Co. v. Texas Rice P Land Co. [Tex. Civ. App.] 253 S. W. 916). The controlling age | 42 principle has been applied where a contractor making an excavation in a highway has been first exonerated**852 and the city subsequently sued for negligence in permitting the street to be in improper condition (Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119), and conversely where the municipality*340 has been absolved, and suit brought against the one responsible for the supposedly negligent act (Smith v. Henry, 66 Pa. Super. Ct. 538; Hayes v. Chicago Tel. Co., 218 Ill. 414, 75 N. E. 1003, 2 L. R. A. [N. S.] 764). The same has been held when the suit first brought against an abutting owner had failed, and the municipality was later sued. Sawyer v. City of Norfolk, 136 Va. 66, 116 S. E. 245; Betor v. City of Albany, 193 App. Div. 349, 184 N. Y. S. 44; Hill v. Bain, 15 R. I. 75, 23 A. 44, 2 Am. St. Rep. 873. Likewise, a verdict in favor of one placing obstructions on a highway absolved the corporation responsible for its maintenance from liability in a subsequent action. Featherston v. Turnpike Road, 71 Hun, 109, 24 N. Y. S. 603. Only two cases have been discovered in which a recovery, under circumstances similar to those presented here, has been permitted. In City of Tulsa v. Wells, 79 Okl. 39, 191 P. 186, a verdict against the city following one in favor of the first defendant, a street railway, was sustained on the ground that the municipality and the corporation were tort-feasors and could be jointly sued, a judgment as to the one not affecting the other. No such relation between like parties exists in Pennsylvania, as our decisions have pointed out; a plaintiff may sue either legally responsible for the defect. The second case (Sutter v. Kansas City, 138 Mo. App. 105, 119 S. W. 1084), was placed on the ground of independent negligence of the municipality. There a street railway company had, with consent, piled bricks along a sidewalk, and in so doing was found not to have acted in a negligent manner. Without its knowledge, children scattered the bricks over the sidewalk, which condition had existed for a sufficient length of time to give to the municipality constructive notice of the danger, and the latter was held liable for its own lack of care. In Pennsylvania, if damages are first recovered against a borough, it may recover over against the wrongdoer-that is to say, against one in the position of the present transit company-and this, of course, was *341 known to the instant plaintiff; therefore, what is said in Van Fleet on Former Adjudication, 572, states correctly the rule which is applicable to the case at bar. If A, as between himself and B, is primarily liable upon an alleged cause the action held by C, or is responsible over to B for any judgment recovered against him by C, and C sues A in the first instance, and is defeated on the merits, he cannot afterwards sue B. If he could, A would be compelled to defend twice against the same action-once for himself and once for B. * * * If a town is sued for injuries caused by an obstruction wrongfully placed in a street by a person, he may be notified to defend, and in such case he will be bound by the judgment. Therefore, if he is sued in the first instance, and defeats the case, the town may plead this judgment in bar of an action against it; otherwise the wrongdoer would have to defend the same action twice. The suit in Philadelphia resulted in a verdict for the transit company, which was under duty to keep the portion of the street, where the accident occurred, and which was alleged to be defective, in repair. The jury in its finding for defendant in the first action negatived the facts essential to a recovery for the cause asserted, including the allegation that the street was out of repair, and the judgment then entered prevents the successful maintenance of the present proceeding, as was correctly held by the court below. The judgment is affirmed. Pa. 1927 BROBSTON v. BURGESS AND TOWN COUNCIL, BOROUGH OF DARBY 290 Pa. 331, 138 A. 849, 54 A.L.R. 1285 END OF DOCUMENT

Supreme Court of Minnesota. NEEFUS v. NEEFUS et al. age | 43 P No. 32672. March 7, 1941. Appeal from Municipal Court of Minneapolis; Fred B. Wright, Judge. Action by Hilma A. Neefus, administratrix of the estate of Howard A. Neefus, deceased, against Ralph L. Neefus as principal, and Fred Hartwig and another, as sureties in a redelivery bond given in a replevin action, for breach of such bond. From an order striking their answers as sham and frivolous, the defendant sureties appeal. Affirmed. [2] KeyCite Citing References for this Headnote 302 Pleading 302XVI Motions 302k351 Striking Out Pleading or Defense 302k358 k. Frivolous Pleading. Most Cited Cases An answer is frivolous where it appears from bare inspection to be lacking in legal sufficiency, and, where in any view of the facts pleaded, it does not present a defense. [3] KeyCite Citing References for this Headnote

Cases (Formerly 302k360(3))

Janz N. Serrano 302k351 Striking Out Pleading or Defense 302k360 k. Application and Proceedings Thereon. Most Cited

307A Pretrial Procedure KeyCite Citing References for this Headnote 307AIII Dismissal 307AIII(B) Involuntary Dismissal 307AIII(B)6 Proceedings and Effect 307Ak686 Matters Deemed Admitted 307Ak686.1 k. In General. Most Cited Cases (Formerly 307Ak686) Where the fact of the falsity of a pleading is established by a clear and unequivocal showing, the failure of the opposing party to answer and contradict the showing must be taken as admitting its truth. [6] KeyCite Citing References for this Headnote 302 Pleading 302XVI Motions 302k351 Striking Out Pleading or Defense 302k359 k. Sham Answer or Defense. Most Cited Cases Where the allegations of fact in a pleading are shown to be false, the pleading should be stricken as sham on motion. Mason's Minn.St.1927, 9259. [7] KeyCite Citing References for this Headnote 302 Pleading 302XVI Motions 302k351 Striking Out Pleading or Defense 302k359 k. Sham Answer or Defense. Most Cited Cases In action on redelivery bond given in replevin action, surety's affidavit that false representation which induced him to execute bond was made by principal therein admitted falsity of surety's allegation in answer that bond was procured by the fraud of obligee and her agents, so that surety's answer was properly stricken as sham on motion. Mason's Minn.St.1927, 9259. [8] KeyCite Citing References for this Headnote 309 Principal and Surety 309I Creation and Existence of Relation 309I(A) Between Individuals

307A Pretrial Procedure 307AIII Dismissal 307AIII(B) Involuntary Dismissal 307AIII(B)4 Pleading, Defects In, in General 307Ak621 k. Defects and Objections Ground for Dismissal in General. Most Cited Cases (Formerly 302k359) A sham answer is one which is sufficient on its face, but which is false in fact. [4] KeyCite Citing References for this Headnote

West Headnotes

[1]

KeyCite Citing References for this Headnote

228 Judgment 228IV By Default 228IV(A) Requisites and Validity 228k105 Default in Pleading 228k106 Failure to Plead in General 228k106(9) k. Striking Out or Withdrawal of Pleading. Most Cited Cases 302 Pleading KeyCite Citing References for this Headnote 302XVI Motions 302k351 Striking Out Pleading or Defense 302k358 k. Frivolous Pleading. Most Cited Cases 302 Pleading KeyCite Citing References for this Headnote 302XVI Motions 302k351 Striking Out Pleading or Defense 302k359 k. Sham Answer or Defense. Most Cited Cases A sham or frivolous answer may be stricken on motion and judgment rendered as for want of an answer. Mason's Minn.St.1927, 9259.

302 Pleading 302XVI Motions 302k351 Striking Out Pleading or Defense 302k360 k. Application and Proceedings Thereon. Most Cited Cases (Formerly 302k360(3)) 307A Pretrial Procedure KeyCite Citing References for this Headnote 307AIII Dismissal 307AIII(B) Involuntary Dismissal 307AIII(B)6 Proceedings and Effect 307Ak682 Evidence 307Ak682.1 k. In General. Most Cited Cases (Formerly 307Ak682) The falsity of a pleading may be established by affidavit. [5] KeyCite Citing References for this Headnote 302 Pleading 302XVI Motions

309k40 Fraud 309k41 k. In General. Most Cited Cases The fraud of the principal in a bond inducing the sureties to execute such bonds is not a defense in an action by the obligees against the sureties on the bond. P [9] KeyCite Citing References for this Headnote 302 Pleading 302XVI Motions 302k351 Striking Out Pleading or Defense 302k359 k. Sham Answer or Defense. Most Cited Cases In action on redelivery bond given in replevin action, where the falsity of surety's allegation in answer that he was induced to sign bond by fraud of deputy sheriff and obligee's attorney was shown by affidavit of deputy and attorney setting out specific facts and circumstances surrounding the transaction, and surety failed to answer and contradict such showing, the falsity of answer would be deemed admitted and answer stricken as sham on motion. Mason's Minn.St.1927, 9259.

PETERSON, Justice.

Janz N. Serrano representations alleged to have been made by the deputy sheriff or plaintiff's attorney. Plaintiff filed counter affidavits of the deputy sheriff and her attorney, who stated that they had nothing to do with procuring the bond and that they did not know and had never seen the sureties thereon prior to its execution. The attorney said that he did not know and had never met nor seen the defendant Hartwig, and that the first time he ever saw the defendant McCormick was when he appeared as a witness for the defendant at the trial of the replevin action. The defendants filed no counter affidavits. [1] [2] [3] 1. A sham or frivolous answer may be stricken on motion and judgment rendered notwithstanding the same as for want of an answer. 2 Mason Minn.St.1927, 9259. An answer is frivolous which appears from a bare inspection to be lacking in legal sufficiency and which in any view of the facts pleaded does not present a defense. A sham answer is one which is sufficient on its face but which is false in fact. Hasse v. Victoria CoOp. Creamery Ass'n, 208 Minn. --, 294 N.W. 475. [4] [5] [6] The falsity of a pleading may be shown by affidavit. Where the falsity of the facts pleaded is established by a clear and unequivocal showing, the failure of the opposing parties to answer *498 and contradict the showing must be taken as admitting its truth. Where the allegations of fact in a pleading are shown to be false the pleading should be stricken as sham. Independent School Dist. v. City of White Bear Lake, 208 Minn. 29, 292 N.W. 777. [7] [8] 2. The allegations in Hartwig's answer that the representations concerning the obligation of the redelivery bond were made by plaintiff and her agents were shown to be false by the admissions in his own affidavit. The case stood as to him as one where the principal in the bond had made a misrepresentation to induce him to sign it. The fraud of the principal in a bond inducing the surety to execute it is not a defense in an action by the obligee against the surety on the bond. National Surety Co. v. Becklund, 169 Minn. 177, 210 N.W. 882. See Schlozer v. Heckeroth, 174 Minn. 525, 219 N.W. 921. Under the circumstances, Hartwig's answer presented no defense. [9] 3. The allegation in McCormick's answer that he was induced to sign the bond by the false representation of the deputy sheriff and plaintiff's attorney was shown to be false. True, he made the bald and unsupported statement that they made the false representation. The deputy sheriff and the attorney denied that

This is an action for breach of a defendant's redelivery bond in a replevin action. The sureties appeal from an order striking their answers as sham and frivolous. In the replevin action plaintiff sued the defendant Ralph L. Neefus to recover possession of certain personal property. The latter was permitted to retain the physical custody of the property under a receipt which he gave the sheriff. Then he gave a redelivery bond with the defendants Hartwig and McCormick as sureties. The bond is in the penal sum of $1,500 and is conditioned for the delivery of the replevied property to the plaintiff if a delivery was adjudged and to pay to plaintiff such sum as for any cause might be recovered against the defendant. The plaintiff recovered a judgment in the replevin action in the alternative for the recovery of possession of the property or in case such possession could not be had for the sum of $412.50 and for $53.06 costs and disbursements. Execution was issued and returned showing a levy on part of the property on which $17.50 was realized, from which $5.70 additional costs were deducted as the costs of the execution. The judgment was satisfied to the extent of $11.80. After the execution, there was $453.76 due plaintiff on the judgment. For this sum she sues on the bond. The sureties interposed identical answers alleging that their signatures were procured by the fraud of the plaintiff and her agents. The basis of this charge was that there was a false representation, that the only obligation under the bond was that the property should remain on the premises of the defendant in the replevin action and not be disposed of in any manner pending the action. Plaintiff moved to strike the answers as sham and frivolous. In support of her motion, she filed an affidavit that the only person who was authorized to represent her in connection with the replevin action was her attorney, and that neither she nor her attorney had anything to do with procuring the redelivery bond. *497 In opposition, each of the defendants filed an affidavit. The defendant Neefus, who was also the defendant in the replevin action and the principal named in the redelivery bond, stated that he made the **581 representation in question to the sureties. The defendant Hartwig stated in his affidavit that the defendant Neefus made the representation to him and admitted that he never had any dealings with the plaintiff or her attorney. He also stated that the other surety, McCormick, was present at the time the representations were made. The defendant McCormick stated that the representations were made by the deputy sheriff who made the levy and by plaintiff's attorney. No attempt was made by McCormick to sustain his allegation that plaintiff had made such representation to him. He did not state the time, place, and circumstances of the

age | 44

Syllabus by the Court.

1. A sham or frivolous answer may be stricken on motion and judgment rendered notwithstanding the same as for want of an answer. 2 Mason Minn.St.1927, 9259. An answer is frivolous which appears from a bare inspection to be lacking in legal sufficiency and which in any view of the facts pleaded does not present a defense. A sham answer is one which is sufficient on its face but which is false in fact. 2. The fraud of the principal in a bond inducing the surety to execute it is not a defense in an action by the obligee against the surety on the bond. 3. Failure to answer and contradict a showing that the allegations of an answer are false must be taken as admitting the truth of the showing. *495 **580 Arthur A. Logefeil, of Minneapolis, for appellant Fred hartwig. Samuel A. Warren, of Minneapolis, for appellant Jack McCormick. Arthur G. Hallgrain, of Minneapolis, for respondent.

Janz N. Serrano they made the representation and supported their denials by explicit statement of time, place, circumstance, and other facts surrounding the transaction which showed prima facie, at least, that McCormick's statement was false. Under the circumstances, it was incumbent on him to answer and contradict the showing. By failing to do so, he must be taken to have admitted its truth. Independent School Dist. v. City of White Bear Lake, 208 Minn. 29, 32, 292 N.W. P age | 45 777. With the alleged representation by the deputy sheriff and the attorney out of the case, McCormick's case also stood as one where the principal in the bond had made a misrepresentation to induce the surety to sign. His answer, therefore, did not state any defense for the same reasons that Hartwig's did not, and it should have been stricken for the same reasons. *499 Since it is not necessary to pass on the question whether or not the answers are also frivolous, we express no opinion with respect to that question. Affirmed. Minn. 1941 NEEFUS v. NEEFUS 209 Minn. 495, 296 N.W. 579 END OF DOCUMENT