Was the defense pleaded a good defense? The solution of the question depends upon a few well established principles of law. These are: Thé doctrine of res judicata is firmly established in this state. Boring v.
“The rules governing the efficacy of judgments in subsequent litigation between parties and privies are well established,' and may be formulated thus: In a second litigation between the same parties or privies upon the same cause of action, the judgment is absolutely final as to their rights in .that cause of action as to all things, not only those which were in fact litigated and decided by the court, but also those which might have been so litigated and decided. On the other hand, in a subsequent litigation between the same parties or their privies upon a different cause of action, the judgment is only conclusive as to those issues which were in fact adjudicated. Van Valkenburgh v. Milwaukee,43 Wis. 575 , 580; Wentworth v. Racine County, 99 Wis. 26,74 N. W. 551 ; Cromwell v. County of Sac,94 U. S. 351 , 356; Last Chance M. Co. v. Tyler M. Co.157 U. S. 683 , 15 Sup. Ct. 733; Southern Pac. R. Co. v. U. S.168 U. S. 1 , 18 Sup. Ct. 18.”
In Cromwell v. County of Sac,
“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*463 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.”
In the present case we have the same parties in their same qüalities, but we have a different cause of action. The first action was upon ordinary, negligence. See
The question as to what kind of negligence the defendant was guilty of was litigated on the former trial and it was adjudged that he was guilty of ordinary negligence. A judgment to that effect was entered. That judgment was affirmed by this court, and it stands as a final judicial determination that the defendant was guilty of ordinary negligence. The correctness of that judgment cannot be tested in another action. Plaintiff had the right to allege both ordinary and gross negligence in his complaint. Astin v. C., M. & St. P. R. Co.
The trial court’s theory that different evidence may be produced upon the new trial would do away entirely with the doctrine of res judicata and might result in judgments that the conduct of a. party upon a given occasion is both ordinary negligence and gross negligence, — a situation we have said cannot exist.
The issue in the former case was the kind of negligence the defendant was guilty of, and it was established that he was guilty of ordinary negligence. That adjudication settles the fact that he cannot be guilty of a totally different kind of negligence.
By the Court. — Order reversed, and cause remanded with directions to overrule the demurrer.