City of Springfield v. Plummer

BLAND, P. J. The theory of law upon which the court sustained the demurrer, if correctly assumed by respondents in their brief, was that the Scott judgment rendered by the Polk Circuit Court against the City of Springfield, is res judicata as between appellant and respondent, both being parties to this suit, which resulted in the judgment in favor of Plummer and against appellant. If they were adversary parties, as they are assumed to have been by the respondent, then that the judgment would be a complete and effectual bar to appellant’s right to recover in this action admits of no doubt, irrespective of the fact that they were co-defendants, for an issue once tried on its merits and reduced to a final judgment, however raised, precludes the retrial of the same issue between the same parties in any other form of action. Wiggins v. St. Louis, 135 Mo. l. c. 569; Young v. Byrd, 124 Mo. 590; State ex rel. v. Branch, 134 Mo. 592; Nave v. Adams, 107 Mo. l. c. 420; Edgell v. Sigerson, 26 Mo. 583; Nail Co. v. Button Co., 74 Fed. Rep. 864; Stone v. U. S., 64 Fed. Rep. 667; Martin v. Evans, 85 Md. 8. But there is no allegation in the petition by which it is stated or from which the inference can be. fairly drawn, that in the trial of the Scott case, appellant and Plummer assumed, or occupied adverse positions in the trial of that suit. The petition alleges that Mrs. Scott, in her petition alleged that the death of her husband was occasioned by the negligence of the defendants in failing to surround the sewer-ditch (in which her husband met his death) with necessary safeguards, etc. The negligence alleged by her was the joint negligence of both the city and of Plummer. Erom the opinion of the Kansas City Court of Appeals, delivered on the appeal of the case (81 Mo. App. l. c. 319), it appears that one of the defenses made and relied on by the city of Springfield, was that the deceased, with full knowledge of the condition of [530] the sewer-ditch and waterpipes, assumed the risk of working at the place where he met his death. Whether Plummer joined the city in this or in any other defense made by it, or sought to exculpate himself by casting the blame on the city’s engineer, is not to be ascertained by anything that is to be found in the petition. Eor the purpose of passing on the demurrer the court could not look beyond the allegations of the petition, to ascertain that the city and Plummer, either by their separate answers or by their conduct at the trial, took such positions as to make them adversaries. The Polk county judgment is conclusive of all the issues involved in the pleadings in that case, and is conclusive against the city of Springfield that Scott came to his death by reason of its negligence, and is conclusive as between Mrs. Scott and Plummer that Scott did not come to his death through the negligence of Plummer, but it is not conclusive of the latter fact as between Plummer and the city, who were co-defendants in the suit, unless that issue was raised by them in some manner at the trial. It is not disclosed by the petition on what rulings of the court Plummer escaped liability, and it is not a matter about which we may venture.to guess or make surmises. The full record of the trial can only disclose the history of that trial and from it, and from it only, can be ascertained whether Plummer and the city joined in a common defense, or became adversary parties. If the defense was a common one, and in no respect adverse, it is very certain the judgment furnishes the respondents no bar to a recovery in this suit. O’Rourke v. Railway Co., 142 Mo. 342; State Bank v. Bartlett, 114 Mo. 276; McMahan v. Greizer, 73 Mo. 145. “In order,” says the Federal Supreme Court in Hughes v. United States, 4 Wall. 232, “that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same [531] in both cases,” and must be determined on its merits. In Henry v. Wood, 77 Mo. 280, it is said, “The fundamental rule ■on this subject is, that a matter once adjudicated by a court of competent jurisdiction may be invoked as an estoppel in any collateral suit, in any court of law or equity, or in admiralty where the same parties or their privies, or one of the parties and the privy or privies of the other allege anything contradictory to it.” Parties are defined by Professor Greenleaf (1 Greenl. Ev., sec. 535) to be: “All persons having a right to ■control the proceedings, to make defense, to produce or examine witnesses, and to appeal from the decision if an appeal lies.” Mr. Ereeman in his work on Judgments (Vol. 1, sec. 158) says, “Parties to a judgment are not bound by it in a subsequent controversy between each other, unless they were adversary parties in the original action,” that “whenever the rules of practice permit defendants to make issues among themselves and to have such issues determined and relief granted, thereupon they become adversary parties upon interposing pleadings setting forth their conflicting interest and calling for the granting of appropriate relief, and a judgment or decree determining such interest and granting or denying such relief is as conclusive upon them as if they had been plaintiff and defendant instead of co-defendants.” Under our practice act, Plummer and the city of Springfield, as co-defendants in the Scott suit, might have set forth conflicting interest and called for appropriate relief, but it does not appear on the face of the petition that they did this, neither does it appear from the petition that the point in controversy in this suit, to-wit, that Scott came to his death by the sole negligence of the city of Springfield and not by the negligence of Plummer, was adjudicated as between them as co-defendants. We, therefore, hold that the petition does not state facts from which [532] it appears that the dity of Springfield is estopped by the Polk county judgment to prosecute this suit on Plummer’s bond. II. It is contended by respondents that Plummer had no notice of the Scott suit, that he was not consulted in respect to tire suit nor allowed to control the defense or to select counsel to make a defense, and for these reasons the judgment is not conclusive against them. To say that Plummer had no notice of the suit would be to contradict what is alleged to be in the record of the cause, to-wit, that Plummer was sued as a co-defendant, appeared and defended the suit. Notice is implied where one answerable over, had actual knowledge of the suit and participated in its defense. Plumb v. Goodnow, 123 U. S. 560; Davis v. Smith, 79 Me. 351; City of Memphis v. Miller, 78 Mo. App. l. c. 70. To what extent, if at all, he was allowed to employ counsel and manage the defense of the case, does not appear from the petition. Unless he had this opportunity, the notice of the pendency of the suit placed him in no better position in respect to its defense than if he had had no notice at all, and the judgment is not conclusive against him. Garrison v. Babbage Transportation Co., 94 Mo. 130; City of St. Joseph v. Railway Co., 116 Mo. 636; K. C., M. & B. R. R. Co. v. Southern R’y News Co., 151 Mo. l. c. 390. Ill It is alleged in the petition that both the city of Springfield and Plummer appeared in the Polk Circuit Court and defended the Scott suit. If they made a common defense and were harmonious in the conduct of that defense on the trial, respondents are estopped, according to all the authorities, to deny any of the issues that were adjudicated by the trial and judgment, and the only question open to them as a defense is, whether the negligence by which Scott came to his death is attributable to Plummer or to the city of Springfield ? On the other hand, if the city of Springfield refused to cooperate with Plummer in the defense of the cause, and pursued [533] its own course in making its defense, without consulting him, the respondents are not estopped by the judgment. But (unless the defenses were adversary), it does not follow that because respondents are not bound by the judgment, that they are relieved of all liability on their bond and are not yet bound to indemnify the appellant for the actual damages it has sustained on account of Plummer’s negligence, if any. Eor it is not a prerequisite to appellant’s right of action that respondents should be conclusively bound by the judgment. If not bound, then for this reason the burden of appellant to make out its case is made more onerous and the scope of the defense is broadened. Stewart v. Thomas, 45 Mo. 42; Wheelock v. Overshiner, 110 Mo. 100; K. C., M. & B. R. R. Co. v. Southern R’y News Co., 151 Mo. 373. If respondents are not bound by the judgment it is nevertheless admissible to show the amount of the judgment and to show that appellant has paid it. Picot v. Signiago, 27 Mo. 125. ■ To support the demurrer the learned counsel for respondents has brought in extrinsic facts — assumption of facts not alleged in the petition. Such a demurrer in equity practice is denominated a speaking demurrer and is universally condemned. The facts urged in support of the demurrer can only be brought to the attention of the court by a plea in bar — or plea setting up an estoppel by the Scott judgment. We think the petition states a good cause of action and reverse the judgment and remand the cause with directions to the circuit court to overrule the demurrer, with leave to respondents to further plead if they are so advised. Judge Bond concurs; Judge Goode not sitting.