La Rue v. Kempf

ALLEN, J. — This is an action whereby plaintiff seeks to. recover from her former husband for the support and maintenance of two minor children of plaintiff and defendant, alleged to have been provided by plaintiff during the period from October 1, 1900, to October 1, 1910. The cause was tried before the court and a jury, resulting in a verdict and judgment for the defendant, and the plaintiff appeals. The petition alleges that the plaintiff and defendant were married in 1896, and lived together as husband and wife until on or about December 24, 1898, during which time there were born of the marriage two children. It is alleged that the defendant abandoned plaintiff and said minor children on or about December 24, 1898, and took up his residence in the State of North Dakota where, on September 1, 1899, he obtained a decree of divorce from plaintiff, by the terms of which decree plaintiff (defendant in the divorce proceeding) was awarded the custody and control of said minor children. And it is averred that from October 1,1900', to October 1,1910, the defendant neglected and refused to provide for said minor cbil — 63 — dren or either of them, except that he furnished plaintiff approximately $200 on account thereof; that plaintiff provided for their support and maintenance, the reasonable value thereof being $50 per month, a total of $6000. And judgment is prayed for the sum of $5800. The answer denies that defendant abandoned plaintiff, or said minor children; but admits that he took up his residence in the State of North Dakota, where he obtained a decree of divorce from plaintiff as alleged by her. The answer further denies that defendant neglected and refused, during the period in question, to provide for said minor children, and avers that he expended certain sums .of money for their support during such time. And it is alleged that defendant repeatedly offered to take said children and rear them, but that plaintiff refused to permit him so to do. The answer further avers that, at the time of the divorce proceedings in North Dakota, defendant paid to plaintiff the sum of $4500 for the maintenance and support of herself and said minor children, during the latter’s minority, which plaintiff accepted and received as and for a suitable and satisfactory provision therefor. The answer then alleges that, on October 3, 1900, plaintiff instituted against defendant an action before a justice of the peace in the city of St. Louis to recover $500 for the support and maintenance of said children from September 1, 1899, to October 1, 1900; that in said action judgment was rendered by the. justice of the peace in favor of defendant; that plaintiff thereupon prosecuted an appeal to the circuit court of the city of St. Louis, where, upon a trial de novo, judgment was again rendered for defendant, from which no appeal was prosecuted. And it is averred that the same identical issues were involved in said former suit as are involved herein; and defendant pleads said — 64 — judgment “as a determination and adjudication of the question of his liability to plaintiff for the support of said minor children, and pleads the same as a former adjudication and in bar of this action.” The evidence discloses that plaintiff retained counsel to represent her in said divorce proceedings, and filed an answer therein, which, however, was afterwards withdrawn. It appears that the sum of $4000 was paid by defendant to counsel representing plaintiff in the North Dakota court — and defendant testified that he permitted plaintiff to retain the proceeds of the sale of certain household furniture amounting to $500; and that, prior to the hearing of the divorce suit, an agreement was entered into between counsel representing plaintiff and defendant respectively therein, evidenced by a stipulation filed in court, and which the court evidently considered in entering its decree. By this stipulation it was agreed that the charge, of adultery made against' plaintiff (defendant in said action) would be withdrawn, and that the suit would proceed, if at all, upon other grounds set forth in the complaint; and that plaintiff (defendant there) should, have the care and custody of the two children born of the marriage. By the stipulation it was further agreed, “That the plaintiff [defendant here] has made suitable and satisfactory provision for the maintenance and support of the defendant [this plaintiff] and said minor children.” The decree entered in the divorce suit on September 1,1899, merely grants this defendant a divorce, and awards to this plaintiff the custody and control of said minor children. On October 1, 1900', plaintiff, who in the meantime had married one La Rue, instituted an action before a justice of the peace in the city of St. Louis to recover the sum of $500 as for moneys expended by her from September 1, 1899, to October 1, 1900, for the support and maintenance of said minor chil — 65 — dren, as is alleged in the answer. The snit was based upon an account filed. The defendant appeared in the action, and judgment was rendered in his favor. Thereupon plaintiff prosecuted an appeal to the circuit court of said city, where the cause was tried de novo before the court without a jury, and at the conclusion of the trial the court gave a declaration of law to the effect that plaintiff could not recover; and, plaintiff not taking a nonsuit, judgment was entered for defendant, from which no appeal was prosecuted. Plaintiff denied having taken an appeal from the judgment of the justice of the peace, in the former action, and denied that she appeared and testified therein in the circuit court, though the affidavit for appeal appears to have been made by her and the cause was prosecuted to- a finality in the circuit court. As there were no pleadings in the former action, and as the judgment entered therein was merely a general judgment for defendant, the record itself does not show what were the questions therein presented and submitted. However, there was parol evidence to the effect that the defense interposed therein was, as here, that the monetary settlement in North Dakota, and the stipulation above referred to, operated, to relieve defendant from any liability to plaintiff for the support and maintenance of 'these children. And briefs filed in the circuit court, in the former suit, by counsel for plaintiff and defendant respectively, were admitted in evidence in the instant case; from which it appears that the above-mentioned defense was the only controverted question in the trial of the former cause. There is much conflict in the evidence as to what provision the defendant made for his children during the period here in question. Plaintiff’s testimony is to the effect that he contributed practically nothing to their support and maintenance. Defendant’s testi — 66 — mony, on the other hand, is that he thus expended large sums of money during such period; .and the evidence shows that he at least materially contributed to the children’s support, and that at the time of the trial below he was making monthly payments to a juvenile court officer for their support and maintenance. And defendant declared that plaintiff was addicted to strong drink, and had squandered therefor moneys given her for the support of the children, which plaintiff denied. It is unnecessary, however, to rehearse in detail the evidence relating to these matters. It is unnecessary to state fully the many assignments of error before us. They pertain to the giving of instructions at defendant’s request, to the refusal to give certain instructions offered by plaintiff, and to the admission and exclusion of evidence. Such thereof as appear to he of consequence will be noticed later I. It cannot be doubted that, in the absence of a provision made for the support and maintenance of minor children, the father continues primarily liable therefor after divorce; and that the mother, having the care and custody of such children, may ordinarily recover from the father for their support and maintenance should he fail or refuse to furnish the same. [See Ranken v. Ranken, 83 Mo. App. 336; McClosky v. McClosky, 93 Mo. App. 393, 67 S. W. 669; Shannon v. Shannon, 97 Mo. App. 119, 71 S. W. 104; Lukowski v. Lukowski, 108 Mo. App. 204, 83 S. W. 274; White v. White, 169 Mo. App. 40, 154 S. W. 872.] This, however, is conceded here; the defenses being, (1) that the agreement evidenced by the stipulation above mentioned, and the payment of the said sum of money thereunder, released defendant from liablity to plaintiff in the premises; (2) that defendant had nevertheless stood ready and willing to take the children — 67 — and support and rear them; and (3) the plea of former adjudication. . II. Though a father will ordinarily remain liable for the support and maintenance of his children, after divorce, and the law will imply a promise on his part to reimburse the mother therefor, where the latter has the custody of such children and supports and maintains them, nevertheless where, in connection with the divorce proceedings a settlement is made between the parents, whereby provision is made by the father for the future support of the children, which is accepted by the mother as and for a suitable and satisfactory provision therefor, this court has held that the father will no longer be liable m an action by the mother for such support and maintenance furnished by her, whatever liability may otherwise continue to attach to the father growing out of his natural and legal duty to provide for his offspring. [See Dixon v. Dixon, 107 Mo. App. 682, 82 S. W. 547.] And the ruling appears to be sound. In the case before us, if the money paid by the defendant to plaintiff’s counsel, at the time of the divorce proceeding, was paid under an agreement that the same should constitute a full and satisfactory provision for the future support and maintenance of the children, and was accepted by plaintiff as and for a suitable and satisfactory provision therefor, then it seems clear that plaintiff cannot maintain this action. The stipulation offered in evidence shows upon its face that such was the agreement in the premises, under which the money was paid plaintiff. But plaintiff denied that her* attorney was authorized to insert such a provision in tíre stipulation, and contended that the money was received by her from her former husband as her- “interest in his estate,” and in no measure for the support of the children. And — 68 — the matter was submitted to the jury by instructions for both plaintiff and defendant. III. We think that no error was committed in refusing instructions offered by plaintiff; and, in the view which we take of the case, it is unnecessary to review such refused instructions. Neither do we perceive any error in the admission or exclusion of evidence, other than with respect to the admission of certain evidence now to be briefly noticed in connection with an instruction given for defendant, of which plaintiff complains. Defendant was permitted, over plaintiff’s objections, to testify, in effect, that he was, and had always been, ready and willing to take the children and support them, and had frequently offered to do this, but that plaintiff would not permit him so to do. And defendant’s instruction, above mentioned, told the jury that if they found and believed that defendant had “at all times been ready and willing to maintain, support and provide for such children, but that plaintiff refused to permit him to do so,” then their verdict must be for defendant. Tlie instruction may be well enough in form That is to say, if the defendant ever sought to provide for the maintenance and support of the children, while they remained in the care and custody of the plaintiff, but was not permitted by her so to do, then doubtless plaintiff could not recover. But there is no such evidence here, so far as we have been able to discover from the record. Defendant’s testimony (which was admitted over plaintiff’s objections) is that he repeatedly offered too take the children himself and support and rear them. But this constituted no defense to plaintiff’s action. Defendant, if not otherwise relieved therefrom, could not escape liability for the support and maintenance of his minor children by offering to take them from the mother who had — 69 — been awarded their custody; and her refusal to permit this would afford no justification to him for refusing to provide for their support and maintenance. [See McCloskey v. McCloskey, 93 Mo. App. 393, 67 S. W. 669.] It was error to admit this, testimony, and likewise to give the instruction in question, predicated upon such testimony. Such errors would ordinarily be highly prejudicial in a case of this character; but, for reasons which will be made to appear later, we think that they are here not reversible errors. IV. As to the plea of former adjudication: The court evidently proceeded upon the theory that the judgment in the former snit was conclusive upon plaintiff here, precluding her recovery, if it was determined and adjudicated therein that the defendant was relieved from liability in the premises by reason of the agreement in North Dakota and the payment of the money by defendant thereunder. The. matter, however, was referred to the jury by an instruction which directed a verdict for defendant in the event that the jury found that, in said former action, “the same questions were presented and submitted .by the plaintiff and defendant as have been presented and submitted in the present cause.” It is earnestly insisted by learned counsel for appellant that the judgment in the former action cannot be invoked here, in bar or as an estoppel, and that the court should have so declared as a matter of law. This is said to be so particularly for the reason that the canse of action is not the same as that sued upon in the former action, and that the proof of the items claimed by appellant in this proceeding, covering the period of ten years in question, was necessarily not the same as that adduced in support of the former demand for support and maintenance of the children for the prior period of thirteen months. — 70 — As to the effect of the former judgment, it may be well to refer to certain general principles which should be here borne in mind. There is more or less confusion in the cases relative to the matter of former adjudication; and it is, of course, not possible to reconcile all of the cases, much less the dicta to be found therein. However, the principles here involved appear to be clear and firmly established in our jurisprudence. There is a marked difference between the effect of a former judgment as a bar to the prosecution of a secqnd action upon the same identical claim or demand, and the estoppel arising from the previous adjudication of some question upon which liability hinges in the subsequent suit, where the latter involves a different cause of action. Here it seems quite clear that the former suit between these same parties was not to enforce the same identical cause of action as that now sued upon. There the demand was for a different amount, claimed to be due for an entirely different period of time; and though the same questions may have been-involved, affecting the right of recovery, the cause of action was not identically the same as that here sued upon, and the rules to be applied are those which must obtain in such a situation. In the famous case of Rex v. The Duchess of Kingston, 20 How. St. Tr. 538, 2 Smith, Lead. Cas. (8 Ed.), 784, the statement of the law governing the force and effect of judgments and decrees was formulated as follows: “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 — 71 — 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 (court of) concurrent or exclusive jurisdic: tion 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.” In the leading case of Cromwell v. County of Sac, 94 U. S. 351, the rule is stated as follows: “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. “But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as ah estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all eases, 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 — 72 — such matters is the judgment conclusive in another action. ’ ’ In Cyc. the rule is thus stated: "The true test is identity of issues. If a particular point or question is in issue in the second action, and the judgment will depend upon its determination, a former judgment between the same parties will be final and conclusive in the second if that same point or question as in issue and adjudicated in the first suit, otherwise not. Or, as the rule is otherwise stated, in a second action between the same parties on a demand different from that in the first action, the judgment in the first action is an estoppel only as to .the points controverted, on the determination of which the finding or verdict was rendered. And in order that this rule should be applied, it must clearly and positively' appear, either from the record itself or by the aid of competent extrinsic evidence, that the precise point or question in issue in the second suit was involved and decided in the first.” [See 23 Cyc., p. 1300 et seq.] In Bigelow on Estoppel, 1. e. 45, after the discussion of many interesting cases, it is said: "The rule in these cases is that a.point once adjudicated by a court of competent jurisdiction, however erroneous 'the adjudication, may be relied upon as an estoppel in any subsequent collateral suit, in the same or any other ceurt, at law, or in chancery, or in admiralty, when either party, or the privies of either party, allege anything inconsistent with it; and this too, whether the subsequent suit is upon the same or a different cause of action. The cases upon this subject are very numerous.” That "where the cause of action in the subsequent suit is not the same identical cause of action as that involved in the former, the judgment is nevertheless conclusive as to all questions which were actually in issue and adjudicated in the' former proceeding is — 73 — abundantly supported by tbe authorities, both in this State and elsewhere. [See Garland v. Smith, 164 Mo. l. c. 22, 64 S. W. 188; Turnverine v. Hagerman, 232 Mo. 693, 135 S. W. 42; Dicky v. Heim, 48 Mo. App. l. c. 118; Barkhoefer v. Barkhoefer, 93 Mo. App. l. c. 381, 382, 67 S. W. 674; Paving Co. v. Field, 132 Mo. App. 628, 97 S. W. 179; Roberts v. Neal, 137 Mo. App. l. c. 115, 119 S. W. 461; Hartwig v. Insurance Co., 167 Mo. App. l. c. 130, 131, 151 S. W. 477; Freeman v. Barnum, 131 Cal. 386; Koehler v. Mfg. Co., 146 Cal. 335; Markley v. The People, 171 Ills. 260; Reynolds v. Mandel, 175 Ills. 615; Rowell v. Smith, 123 Wis. 510; Freeman on Judgments, sec. 253; 24 Am. and Eng. Ency. Law (2 Ed.), p. 780.] In the case before us, though the two suits covered different periods of time, and were hence founded upon different' causes of action, nevertheless if in the former suit the question whether defendant was released from liability to plaintiff in the premises, by reason of the previous agreement aforesaid, was submitted, and was adjudicated in defendant’s favor, then the judgment resting thereupon must operate as an estoppel here, where the very same matter is drawn in controversy, and upon which liability hinges. The doctrine of res adjudícala, or former adjudication, -proceeds upon the theory, on the one hand, that it is to the interest of the State that there should be an end to litigation (Interest republicae ut sit finis lilimn), and, on the other hand, that, the individual should not be twice vexed for the same cause (Nemo debet bis vexari pro eadem causa). Here the estoppel raised is rather in the nature of estoppel by verdict (see Markey v. People, supra, l. c. 263; Reynolds v. Mandel, supra, l. c. 618); but the general principle is the same, and so is the result, whatever it may be denominated. Nor can it be doubted that where, as here, the record in the former suit does not show what questions — 74 — were determined therein, this may be shown by extrinsic evidence, though it be by parol. [See Spradling v. Conway, 51 Mo. App. 51; West v. Moser, 49 Mo. App. 201.] The trial court left it to the jury to say whether the “same questions were presented and submitted” in the former suit as here. But we have reached' the conclusion that the court should have passed thereupon as a matter of law. Relative to the trial of the ■former cause in the circuit court all of the evidence is that the defense predicated upon the agreement in North Dakota was the only controverted question in the case. This is undisputably shown by the briefs of counsel filed therein, which were properly admitted in evidence here to show what was presented and submitted in the other suit. In the brief filed therein for plaintiff it is said: “Plaintiff brings this suit to recover money paid by her in support of these children. Defendant contends that the stipulation offered in evidence by him defeats her action.”. Then follows certain argument and points made, with authorities cited in support thereof. In the brief filed therein by defendant the latter’s counsel concedes defendant’s liability for support of his minor children, in spite of the divorce and the awarding of the custody thereof to the plaintiff, unless provision has been made for their support. Reference is then made to the setttlement made with plaintiff in North Dakota and to the stipulation in question whereby it was agreed that “suitable and satisfactory provision” had been made for the maintenance and support of plaintiff and said children, which is asserted to be a complete defense. In these briefs, which constitute the only written evidence as to what was actually adjudicated in said proceeding in the circuit court, there is no suggestion or intimation that any question was invovled other than that to which we have referred. And to the — 75 — same effect is the parol testimony adduced. This being so, it appears that the evidence on this question was such as to leave room for no possible conclusion other than that there was presented and submitted in the former suit, and determined in defendant’s favor, the chief defense (other than this plea of former adjudication) here pleaded and relied upon. Hence, without-saying when, in general, such a question is for the coiirt and when for the jury, we are convinced that the court should here have passed thereupon as q matter of law, and should have declared that plaintiff could not recover, in this action, as requested by defendant at the close of the case. In this view the errors noted above cannot affect the result. Our conclusion is that the judgment should be affirmed; and it is so ordered. Reynolds, P. J., and Nortoni, J., concur.