175 Mo. App. 246 | Mo. Ct. App. | 1913
One Joseph Kim instituted an action against the E. E. Souther Iron Company, ap^pellant here, referred to hereafter as the Iron Com
As the cause was submitted to the trial court upon an agreed statement of facts, substantially following the averments of the petition, it will not be necessary to set out the petition at length. If it becomes important as to any matters before us,-we will set out such parts as are necessary.
By the agreed statement it is admitted, among other things, that one Albert Q-. Souther, since deceased, Prank E. Codding and William M. Scudder undertook to organize a corporation to acquire title to ground and construct thereon office and factory buildings which, “when completed, would be occupied by (the Iron Company) as tenant of the proposed corporation;” that the proposed corporation was duly incorporated according to the laws of this State under the name of Woodruff Realty Company July 27,1907, and
The answer, after a general denial, pleads the judgment in favor of Kirn and against the Iron Company before mentioned in bar of the present action as against it, averring that in that action the cause was submitted to the jury on the identical issue raised by the amended petition in this cause; that instructions were given by the trial court both on behalf of Kirn,
A general denial by way of reply was filed to this.
As stated, the cause was submitted on an agreed statement of facts. The court, at the request of defendant, gave two declarations of law: First. That the judgment rendered in the ease of Kirn v. E. E.
The determination of this question turns mainly upon the correctness of the action of the trial court in declaring that the judgment in the Kirn case is conclusive in the case at bar in favor of the defendant. It is very clear from consideration of the facts agreed to in the cause that the defendant here, now respondent, that is to say, the Woodruff Realty Company, was not a party of record in the Kirn action. Nor do we find anything in the agreed statement of facts tending to show that the Woodruff. Realty Company, as a corporation, had actual notice of that suit dr had been notified by the defendant in it, the Iron Company, to come in and defend or join in the defense. The only thing admitted in the agreed statement as to that is that Codding and Scudder “had actual notice of said Kirn suit and of the proceedings therein as had also said Souther up to the time of his death.” But it is in evidence and admitted that these same persons were also filling like offices in each of the companies. We might dispose of the contention of learned counsel for respondent as to this point of notice to the Realty Company, by quoting their own argument submitted to us in support .of their proposition that there is no proof of any agreement on the part of the defendant to indemnify plaintiff; no proof of any request upon which the law will imply an agreement to indemnify. Counsel, in support of this contention, say: “The question is one between two corporations, not between
The determination of this case turns on the question as to whether, .assuming that the Woodruff Realty Company had notice of the pendency of the action of Kirn against E. E. Souther Iron Company, the judgment in that cause which fixed responsibility upon the Souther Iron Company for the damages sustained by Kirn, is conclusive in favor of the nonliability of the defendant in the present action. This question would seem to be settled by the decisions of our Supreme Court in State Bank of St. Louis v. Bartle, 114 Mo. 276, 21 S. W. 816, and O’Rourke v. Lindell Ry. Co., 142 Mo. 342, 44 S. W. 254.
In the 0'’Rourke case, supra, there were two defendants, the Lindell Railway Company and the St. Louis Suburban Railway Company. The jury found for the latter and against the former, which moving for a new trial, appealed to the Supreme Court. It appears that on the appeal appellant criticized certain instructions given for its codefendant. Says Judge Maobabbane (142 Mo. l. c. 352, 44 S. W. 256), delivering the opinion of the1 court: “Whether or not such instructions, if erroneous, would be prejudicial to appellant, would depend upon the conclusiveness of the judgment as between the defendants. If the Suburban Company could, under the statute, be required to contribute to appellant for the damages adjudged to plaintiff and would escape such contribution under erroneous instructions, there would certainly be such prejudicial error as should be corrected. [Wiggin v. St. Louis, 135 Mo. 558.] But this judgment is not, in our opinion, conclusive between these defendants. There was no issue involving the liability of defendants between themselves raised by the pleadings or submitted on the evidence. There was no trial of the rights and liabilities of defendants between themselves, and the ■judgment did not operate as an adjudication of them. [Van Fleet’s Form. Adj., sec. 256 ; Chand. on Res. Adjud., sec. 77 ; Bank v. Bartle, 114 Mo. 276.] ”
Analyzing Wiggin v. St. Louis, supra, and distinguishing it from the case before the court as being a case resting on the terms of the Charter of St. Louis requiring a joinder of the person whose negligence is
In the case at bar there was no adjudication whatever, as between the Souther Iron Company and the Realty Company, as to their respective liabilities; no joint defense,- no antagonistic defenses interposed by either as defendants. So that as far as the record before us is concerned, even if the Realty Company had been a party of .record in that cause and a joint defendant, any verdict and judgment entered in it as against one of the companies alone or against both was not an adjudication of their rights as between the two companies themselves.
The learned counsel for respondent place great reliance upon the decision of the Kansas City Court of Appeals in the case of Kansas City v. Mitchener, 85 Mo. App. 36. But even in that case it is held that a judgment against joint defendants who are not adversaries, is not conclusive inter sese; that it is only when one defendant is primarily liable and the other' defendant could so hold him that a judgment in his favor is res adjudicata as between him and his codefendant: On this point of adversary defense, the Kansas City Court of Appeals distinguished the Mitchener case from the Bartle and O’Rourke cases.
That is the rule generally recognized. Thus it is said by an accepted authority: ‘ ‘ Not all the parties to a suit are necessarily concluded by the judgment or decree, in a subsequent suit between the same parties, but only those between whom the matter in issue in the second suit was adjudicated. To be concluded they must have been adversary parties.” [24 Am. & Eng. Ency. of Law (2 Ed.), p. 731, par. 2.] Among other cases cited in support of this by the compiler are McMahan v. Geiger, 73 Mo. 145, q. v., page 149, 39 Am. Rep. 489 ; Carmody v. Hanick, 85 Mo. App. 659, q. v. page 666 ; City of Springfield v. Plummer, 89 Mo. App. 515, q. v., page 530.
Counsel for respondent rely upon the decision of our Supreme Court in Baumhoff v. St. Louis & Kirkwood R. R. Co., 205 Mo. 248, 104 S. W. 5, 120 Am. St. Rep. 745 ; especially to the extract from an opinion by Mr. Justice Harlan, in Southern Pacific R. R. Co. v. United States, 168 U. S. l. c. 48, 18 Sup. Ct. 18, 42 L. Ed. 355, and as to what is said by our Supreme Court at page 264, of 205 Mo., 104 S. W. 5, 120 Am. St. Rep. 745. We find nothing in this case nor in the quotation from Mr. Justice Harlan which supports this contention.
We are referred by those counsel to 22 Cyo., page 107, where it is said: “The judgment is also conclusive upon defendants in the first action in their character of plaintiffs, in the second as to the facts
The subject of res acljudicata has been so' thoroughly gone into and! covered by our Supreme Court in Womach v. City of St. Joseph, 201 Mo. 467, 100 S. W. 443, and by our own court in Taylor v. Sartorious, 130 Mo. App. 23, 108 S. W. 1089, that it is needless to go into it any further.
The term “res adjudicata” is not a fetish before which all defenses must bow down. As said in the
In considering this present action as well as that of Kirn v. E. E. Souther Iron Company, it must not be overlooked that they are not against the Iron Company as one of two or more joint tort-feasors; there is no such pretense. Nor is the present action one of a wrongdoer against his joint feasor for contribution. It proceeds on the theory that in what the Iron Company did, it was acting for the Realty Company, not in co-operation with it, but for it; at its request; in a way; as its agent, and is entitled to recover from that company its necessary and reasonable expenses in that behalf laid out.
Applying what is held in authorities to which we have referred!, to the facts in the case at bar, we hold that the first declaration of law, given by the trial court, to the effect that the judgment in the case of Kirn v. E. E. Souther Iron Company was a bar to this action by this appellant, was erroneous.
Counsel for respondent argue that there is no proof of any request, nor of' any facts on which an implied promise can rest, and that on the .evidence in the case, the trial court was justified in giving the second declaration of law, to the effect that “under the pleadings and the agreed statement of facts in this case judgment must be rendered for the defendant.” Our strong impression is that this second declaration rests on the first, namely, on the conclusiveness of the judgment.
But assume that the clause of the stipulation which provides that “any conflict in the testimony and the fact involved therein (meaning in the evidence, record, etc., in the Kirn trial and proceeding) may be
It is true that no formal request to take out the permit and make payment is embodied in the agreed statement. But there is ample evidence from which to infer that such was the fact ánd that appellant was not a mere volunteer. The Iron Company wanted the use of the building and was interested in its early completion; to secure that it took out the building permit, even paid some of the costs of construction. While we held that these facts being in evidence, were sufficient to warrant the jury to. find that Kirn had a right of action against the Iron Company as the responsible party, and' so holding affirmed the judgment in that case, it is clear that the facts here admitted show beyond room for cavil that the Iron Company was acting merely for the accommodation of the Realty Company. There is no substantial evidence to the contrary. That company accepted the accommodation. The agreed statement sets out in so many words: ‘ ‘ That defendant herein, on July 29,1907, acquired title to- the ground on which said biuldings were constructed and said work of construction was, at all its stages, in the sole charge of defendant herein, its officers, servants and agents, and plaintiff never had, nor did any person for it .ever have, any control over said McCormack, said foreman, or said Kirn, or either of them, or said work of construction or any part of same; that all the services rendered by plaintiff herein for the benefit of defendant
That an express promise need not he proven, that the obligation to repay may arise outside of an express promise from all the attendant facts, is settled law, as see Dugdale v. Lovering, Com. Pleas, L. R. 10 (1874-75) 196, l. c. 201, where it is said that the existence of a contract of indemnity “must greatly depend on the circumstances of each individual case, the effect of which seems to be for the jury to determine.”
In Humphreys v. Pratt, 5 Bli. (N. R.) 154, the plaintiff — a sheriff, to whom the defendant had given a fieri facias to execute — levied on certain cattle claimed by (and, as it turned out, belonging to) another, and which cattle had been pointed out to the sheriff by the defendant. That was all the defendant did, as, says the court, “without more” than that pointing out by the defendant, the sheriff levied. It was held by the House of Lords that a contract of indemnity might be implied. Culmer v. Wilson, 13 Utah, 129, 44 Pac. 833, 57 Am. St. Rep. 713, is to the same effect. (This case is also in point on the effect of a prior adjudication.) [Phoenix Bridge Co. v. Creem, 102 App. Div. 354, 92 N. Y. Supp. 855, affirmed by Court of Appeals 185 N. Y. 580, 78 N. E. 1110, Seymour v. Spring Forest Cemetery Ass ’n, 144 N. Y. 333, 39 N. E. 365, 26 L. R. A. 859, and Clifford Banking Co. v. Donovan Com. Co., 195 Mo. 262, l. c. 288, et seq., 94 S. W. 527, are to like effect.]
This respondent accepted the benefit of the acts of the appellant and cannot now claim lack of authority or absence of a request. [Wolff v. Matthews, 39 Mo. App. 376, l. c. 381.]
On consideration of the evidence in the case, under the law which we hold is to be here applied, we conclude