11 Pa. Super. 438 | Pa. Super. Ct. | 1899
Opinion by
In an action for the continuance of a nuisance, a verdict and judgment for the plaintiff in a former action in which the same matter was in controversy between the parties, are conclusive evidence, “ for when a court of competent jurisdiction has adjudicated directly upon a particular matter, the same point is not open to inquiry in a subsequent suit for the same cause, and between the same parties : ” Kilheffer v. Herr, 17 S. & R. 319; Bell v. Allegheny Co., 184 Pa. 296, and cases there cited; Hartman v. Incline Plane Co., 2 Pa. Superior Ct. 123. Applying this well settled principle to the casé in hand, we must hold that the two former recoveries are conclusive adjudications: (1) that the structure described in Hartman v. Incline Plane Co., 159 Pa. 442, was erected by the defendant and was maintained by it down to, and including, the time of the grievance complained of in the second suit; (2) that it was negligently or improperly constructed; (3) that, by reason thereof, it was the cause of the injuries complained of in the former suits,, namely, that the brick wall of the plaintiff’s house became, and was kept, so saturated with water that the plaster and paper on the inside were injured, and some of the rooms were rendered damp, mouldy and untenantable.
1. Having proved by the record of the charter, itself, the incorporation of the defendant for the erection and maintenance of an inclined plane railway, and by the records of the two former suits that the structure was erected and maintained by it (admittedly on its own land), as part of its road, it might well be presumed, in the absence of any evidence to the contrary, that it continued to be the responsible owner of it. We say this, not because the records of the former suits have any conclusive effect as proof of present ownership, — the case would be the same if the original construction and ownership had been proved in any other way, — but because of “ the experienced con
2. Equally untenable is the position, that there is no evidence that the nuisance, the existence of which was conclusively established by the former judgments, was continued. It is true, none of the plaintiff’s witnesses testified in so many words, that the defendant’s structure remained in precisely the same condition after the trial of the second suit as before. It does, however, plainly appear from their testimony, fairly interpreted, that the structure was still maintained, and that the plaintiff’s building continued, without interruption, to be injuriously affected in precisely the same manner and place as before. It was a fair inference of fact, in the absence of evidence of a new cause for the continuance of the injury, or of an alteration of the structure, that the defects in it had not been removed. This is not casting the burden of proof on the defendant, but simply permitting the jury to draw a very natural and legitimate inference from the facts proved.
The portion of the charge made the subject of the fifth assign
3. The fourth assignment is based on the proposition that the defendant being a corporation, invested with the right of eminent domain, and authorized to erect and maintain the structure complained of, the plaintiff, having in a prior case recovered damages resulting therefrom, is barred from a recovery for a continuation of the injuries. In considering this proposition it is to be noticed that the plaintiff is a life tenant, and that in the former actions, she sued for and recovered damages for the injury to her possession, merely, which had accrued during the periods ending respectively on the date of the confessed judgments in the first action, and of the trial of the second action. If, therefore, she is precluded from recovering in the present action, the damages she has sustained since, it is not because the former recoveries actually included all the damages past and prospective to her estate. It is to be observed further, that in the second suit the plaintiff alleged, and recovered on the ground, that the injury was wrongfully continued after the judgment in the first suit. This was an essential part of her case. “ The rule that what has been judicially determined shall not again be made the subject of controversy, extends to every question’in the proceeding which was legally cognizable, and applies where a party has neglected the opportunity of trial, or has failed to present his case or defense, in whole or in part, under the mistaken belief that the matter would remain open and could be made the subject of another proceeding. . . . Generally the estoppel extends to any allegation which was at issue and determined
Whether or not the defendant might have elected in the present action, or may elect in any future action, to have the tort treated as a permanent one, and have the damages assessed ■on that basis, and thus end further liability, is a question not distinctly raised by the record, and therefore we will not discuss it.
The judgment is affirmed.