Allamong v. Falkenhof

*91 VICKERY, PJ. Now it is claimed that'this is hot res adjudicata because in the Common Pelas, Court there were alleged very serious injuries to the plaintiff, that is, personal injuries which in amount was much greater than the Municipal Court had jurisdiction of and, therefore, it could not be res adjudicata because the Municipal Court did not have complete jurisdiction over the possible amount that might have been recovered for, as alleged in the plaintiff’s petition, the plaintiff suffered the loss of one, if not both, eyes and, of course, that injury if sustained by proof would entitle the plaintiff to much greater damages than the Municipal Court could allow. There has been much learning expended in this case and there has been searching of authorities, but so far as I have been able to learn there is not one that is exactly in point. There are many authorities to the effect that had the plaintiff in the Common Pleas Court brought an action for the damages to his automobile in .the Municipal Court ,and had recovered, he would not be barred from bringing another action in a court having jurisdiction for the personal injuries. In other words, there were two causes of action and while it were better practice that a man should settle all his difficulties in one suit, yet if he sought to divide them up, the splitting of causes of action, in other words, would mot necessarily be a bar in a court having cqmpíete jurisdiction over one of the causes of action, and much authority has been cited to sustain this contention and the writer of this opinion agrees with that. But it must be conceded that the Municipal Court had jurisdiction of the subject matter and jurisdiction over the persons to settle this whole controversy. The damages that were sustained" by the plaintiff might not have reached more than $2500 and therefore the jurisdiction of the Municipal Court would be complete over the amount to be rendered. But the serious question is this: that, in order to found any right of action on the part Of the plaintiff in the Common Pleas Court, he must-prove thát the defendant was guilty of negligence, and that is the first question to be determined. The amount of recovery is incidental only to the negligence of the sued defendant, for if it were a jury case in the Common Pleas Court, or in the Municipal Court either for that matter, the court would tell the jury that the first question that they must determine is: was the defendant negligent, and was that negligence the proximate cause of the" injury? and if they find that in favor of the plaintiff, they then can go to the second question which would be the amount of damages to be recovered, but in the event- that they find no negligence upon' the part of the defendant or, finding negligece upon the part of the defedant, they find that the plaintiff also was guilty of negligence which contributed to the injury, then the plaintiff could not recover and they need go no further. So the basis for the right to recover anything or any amount is the negligence of the defendant that is sued, and if there were no negligence, of course, there could be no recovery. So that" was the gravamen of the offense and the cause, if it existed, which would give rise to a right of recovery. Now over that question the Municipal Court had jurisdiction and that was the issue that was raised as shown by the pleadings and files in the case in the Municipal ■Court, and that was determined by the court in favor of the plaintiff in that action, the defendant in the Common Pleas action. The court found that the defendant in the Municipal action was guilty of .negligence which caused the injury to the then plaintiff’s automobile; that the plain *92 .tiff in that action, the defendant in the Common Pleas action, was guilty of no negligence, and/ that judgment was affirmed by the Court of Appeals and remains as the law of that case and however we may regret the inability of the plaintiff to present the damage to his person, the loss of his eyesight to the court and jury, yet it is something over which we. now have no control. It is asked what the remedy would be if a person to avoid responsibility when there was a possible graver liability for injuries caused by him, should rush into a lower court and secure a judgment in his favor. Well, that is assuming that the court acts corruptly or inadvisedly when there is a judgment in favor of the plaintiff in that action in order to prevent a larger liability being asserted. We do not think that such an argument is tenable; but if it were, we presume there is a remedy in the courts, if taken at the proper time; that .is, if the Municipal Court case was started first so that it had precedence, and thus it obtained jurisdiction, then in the Common Pleas Court where the same matter was involved, the Common Pleas Court having more complete and adequate jurisdiction than has the Municipal Court, upon a proper setting up of that in the petition or supplemental petition in the Court of Common Pleas, an injunction might be granted by the Common Pleas, Court to enjoin the defendant in the Common Pleas Court; the plaintiff in the Municipal Court from proceeding in the Municipal Court, for the reason that the matter was pending in the Common -Pleas Court, and it had more complete jurisdiction over the matter, and we think an ^inferior court might be enjoined under the circumstances. That would be a compíete answer to the statement that a man might steal a march on his adversary and have a judgment that would foreclose the person injured from prosecuting his claim. [That was not done in the instant case. The plaintiff in the Common Pleas Court went-into the Municipal Court, as already stated, filed his statement of defense, and .the question and the sole question before the. Municipal Court was which of these two parties was negligent. If the plaintiff in i the Municipal Court had been negligent, he could not have recovered, and if a judgment had been rendered against him the Municipal Court in the matter of ’damage to his machine, it would have been on the ground that the defendant in that court was not guilty , of negligence. Then even though the defendant in that action might have set up his damages as a counterclaim, yet if he did not, he would not be barred, we think, under the authorities, from prosecuting his claim for personal injury or damage to his automobile or both in the Court of Common Pleas. This member of the court, at least, thinks that where one has a conterclaim, he can either use it in asking for affirmative relief or he need not use it, but simply defend and sue for relief in another court. He is not obliged to use his counterclaim although it is better practice to do so. He can make that the basis of an affirmative action and we think the authorities that are quoted to us in this case amply demonstrate this to be the law/ From the whole record in this case, from the authorities that we have examined,' the majority of the court can come to no other conclusion than that the Court of Common Pleas was right in dismissing the proceedings on the ground that the matter had been adjudicated in the Municipal Court and that it was res ad judicata. For that reason the majority of the court feel that the judgment must be affirmed. Cline, J, concurs. Levine, J, dissents.