312 Ky. 187 | Ky. Ct. App. | 1950
Reversing.
Appellee filed special demurrer on the ground that there was a misjoinder of causes and moved for an election. The demurrer and motion were not passed on by the court, perhaps because it is elsewhere shown that the parties had agreed that the claim of Young should be tried separately on the petition as filed and the defensive pleading defendant should file. Hitt demurred, and without waiving filed answer and counterclaim, first denying the allegations of the petition, except that at the time of the collision each was the operator of the respective vehicles. He then pleads that the collision was due solely to the negligence of Young, then operating the company’s car; he asked damages for injury to his truck and the loss of its use for a short period.
The portion of the joint action was tried out, and a judgment entered in favor of Young against Hitt for $100, and the “cause is filed away as regards the claim of Young and retained on the docket as regards the action of the plaintiff, Newton Manufacturing Co.” This judgment was satisfied by payment in full.
Following the trial and resulting judgment the Company filed an amended petition, in which it reiterated the allegations of the original petition, and plead that since it had beep, filed there had been a trial of the Young-Hitt issue and the jury had returned a verdict in favor of Young, and the court had in that judgment dismissed Hitt’s counterclaim, or adjudging that he recover-nothing thereon. It was then plead that the damage to its vehicle, as originally alleged, resulted from the same collision of the two vehicles, and under the same facts as were presented and heard on the YoungHitt trial on the charge and counter-charge of negligence on the part of Hitt and Young, the latter at the time being its agent, servant and employee, driving the Com
Hitt objected to the filing of this amended pleading, moved to strike it from the record and without waiving filed a general demurrer. The court permitted the filing, overruled the motion to strike, but sustained the demurrer. Hitt then filed answer and counterclaim to plaintiff’s original petition, first denying then charging that plaintiff’s injuries were caused solely by its negligence. The counter-pleading is substantially the same in words as were used in pleading to Young’s petition. There was objection to this filing and motion to strike it from the record; motion was overruled.
The record does not contain the evidence, instructions or all of the proceedings had in either trial. The trial order merely shows that the cause was submitted to the jury, which found “both the plaintiff and defendant guilty of negligence and will not award damages to either.” On the verdict it was adjudged that “plaintiff take nothing by his petition and defendant take nothing by his counterclaim.”
The overruled motion for a new trial set up the following grounds in support; (1) The court erred in sustaining defendant’s demurrer to plaintiff’s amended petition, and (2) in overruling plaintiff’s motion to strike defendant’s counterclaim and in overruling its motion for a directed verdict. The last ground may not be considered since neither the evidence, proceedings or instructions appear in this record.
Counsel for appellee takes the position that because the original petition of this Company did not allege the relationship of employer and employee, there was no
Appellant for reversal relies on Blue Valley Creamery Co. v. Cronimus, 270 Ky. 496, 110 S. W. 2d 286, and prior and later cases where the facts justifying the doctrines have been consistently applied. Vaughn’s Adm’r v. Louisville & N. R. R. Co., 297 Ky. 309, 170 S. W. 2d 441, 152 A. L. R. 1060; Travelers Indemnity Co. v. Moore, 304 Ky. 456, 201 S. W. 2d 7.
Appellee seems to agree that if there existed the necessary privities in the instant case, the Cronimus case controls, but if the relationship did not exist then the Montgomery v. Taylor-Green case is controlling. "We note that the court in his opinion refers to the Cronimus and Travelers Indemnity Company cases and says if the court is to follow these cases plaintiff’s “demurrer should have been sustained and the judgment reversed,” but otherwise if the Montgomery case is applicable, and the court very aptly points out, as does appellant in brief, that this court in the Montgomery case rejected the plea of res adjudicata “upon the theory that there was no privity between the two injured parties. ’ ’
The whole argument here, however, is that if there was or existed the required privity to form a basis for the res adjudicata rule, ij; was not made manifest until after the judgment in the Young-Hitt trial. This is true, but by the amendment such elements were shown to have existed at the time of the collision, and this it seems to us is the controlling factor, and we are not referred to any court ruling or Code provision which would tend to preclude appellant from amending its petition at the time and in the manner adopted. It is suggested that if Young was using the Company’s car, not in pursuit of its business, or was working on commission, or was using the car without the consent of the owner, then there would be a lack of the elements which go to constitute privity. If an issue on this point
The appeal here is prosecuted from the judgment following the jury’s verdict in the instant case, and we are asked to reverse and remand for a new trial. Reversal is sought, as stated, on the grounds stated above, and we are of the opinion the court was in error in both instances (grounds 1 and 2), hence the judgment is reversed with directions to grant appellant a new trial and for proceedings consistent herewith.