206 S.W.2d 919 | Ky. Ct. App. | 1947
Affirming.
These three cases were tried together and by agreement have been consolidated on appeal and this opinion will dispose of all of them. They arose out of the same explosion which resulted in the case of Taylor-Green Gas Company v. Newcomb,
Newcomb recovered judgment against the Company for $13,675 for personal injuries, which we affirmed in
The trial judge sustained general demurrers to these pleas of res judicata and the correctness of that ruling is in reality the only question presented on these appeals, although it is briefed from several different angles.
The evidence introduced on the trial of the three instant cases appears to be stronger in favor of the Company than that heard on the trial of the Newcomb case in that several witnesses testified they saw the meter tested after the explosion, which test showed it did not leak. Several other witnesses testified that after the explosion a piece of the gas pipe belonging to Montgomery, the owner of the building, was removed from under the floor of the structure and it was old, full of holes and was in a dangerous condition.
It is not difficult to conceive how this evidence could influence the jury to tip the scales in favor of the Company and return a different verdict from that found in the Newcomb case. Be that as it may, the rule is that a judgment may not successfully be pleaded as res judicata, or as an estoppel where there is no identity, or at least privity, of parties in the same antagonistic relation. An estoppel must be mutual and cannot apply as against a stranger to a judgment, since one's rights cannot be determined without an opportunity to present his side of the controversy. Sim v. Bishop,
"The grounds for a new trial in this case include the insistence by plaintiffs' counsel that they were entitled to the application of the doctrine of res judicata by reason of the judgment in the Newcomb case,
"The opinion in the Cronimus case, as well as the opinion in the later case of Sherwood v. Huber Huber *259
Motor Co.,
"In my opinion the evidence did not disclose that the relationship between Montgomery and Newcomb was that of Master and Servant, or that it was even that of Principal and Agent, but it indicates that Newcomb was an independent contractor. Montgomery would certainly have been justified in denying liability had Newcomb been guilty of some act of negligence that caused the explosion. The situation is far different from that in the Cronimus case. The requirements therein set out, where there was no question that the relationship was that of Master and Servant, included the requirement that the negligence relied on to sustain or defeat a recovery in a case to which the Master was a party must be purely derivative and 'dependent entirely on the principle of respondeat superior' (
"While it may be said that this statement would be in point if raised in behalf of plaintiffs rather than defendant, the opinion in the Cronimus case recognizes the rule that the estoppel must be mutual. As said in the syllabus to Wolff
Sons v. New Zealand Ins. Co.,
"A rather full discussion of some of the requirements for the application of the doctrine of res judicata may be found in Wolff ( Sons) v. New Zealand (Ins. Co.) mentioned above.
"As a practical matter, the injustice of applying the doctrine of res judicata to this case is illustrated by the several cases growing out of this explosion. A number of them were suits for personal injuries. The Newcomb case was one of these. The defendant carried liability insurance which covered personal injuries but not property damage. The Newcomb case was defended by the insurance carrier and defendant could not control the conduct of that case and I think the court should be slow to hold the defendant is concluded by the judgment in a case, the defense of which it was not in a position to control. On the other hand, if the judgment in the case tried had gone against Newcomb, I think it should not have precluded these plaintiffs here from prosecuting their actions, since they were not parties *261 to and could not control the conduct of the Newcomb case. The rule should work both ways and so far as I have found the courts agree that the estoppel must be mutual. A party should not be permitted to claim the right to assert in his favor estoppel by a judgment in a suit, if an unfavorable judgment in the same suit could not have been asserted as an estoppel against him."
For the reasons given, the judgments are affirmed.