Ornauer v. Penn. Mutual Life Insurance, 52 Colo. 632

Ornauer v. Penn. Mutual Life Insurance

52 Colo. 632 | Colo. | 1912

Mr. Justice Gabbert

delivered the opinion of the court.

*636Counsel for plaintiff in error contends that the court should have entered judgment in favor of plaintiff, for' the reason that the plea of res judicata was established. In support of this proposition, it is urged that the adjudication of the first case was res judicata of all matters therein determined, and of all matters that might have been determined in that action. Hence, it is claimed that the failure of defendant in the first action to interpose the defense of the breach of the conditions of the contract involved precludes it from interposing such defenses in the cases under consideration. This is not tenable. As applicable to these cases, the rule of res judicata is that 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 judgment was rendered, and not as to other matters which might have been litigated and determined. —Cromwell v. County of Sac, 94 U. S. 351; Davis v. Brown, ibid, 423; Russell v. Place, ibid, 606; 2 Black on Judgments, section 614; 24 Ency. 784; Grand Valley I. Co. v. Fruita Imp. Co., 37 Colo. 483; Hickey v. Anheuser-Busch Brewing Assn., 36 Colo. 386; Jacobson v. Miller, 41 Mich. 90.

So that, in all cases 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 between the same parties, the inquiry must always be as to the issue actually litigated and determined in the original action, not what might have been thus litigated and determined in the original action, for it is only as to the former that the judgment is conclusive in another action. Each of the cases instituted by plaintiff *637grew out of the same contract, but the demands, or causes of action, are different. In the first case the question of the discharge of. plaintiff for a breach of the conditions of the contract was not controverted by. the defendant, and not in issue between them.' In fact, it affirmatively appears that at the instance of plaintiff the attempt on the part of the defendant to litigate it was prevented for the reason that under the pleadings it had not made any issue thereon. The judgment was in no sense based upon this question, in so far as it- was based upon any issue or defense made by the defendant. In other words, in the first case it was not in issue, was not controverted, not contested, and not litigated or adjudicated, upon any defense interposed by the defendant; or, in brief, he did not interpose a defense which would permit him to litigate this question, and for that reason was not permitted to do so; consequently, it follows that in the cases under consideration the judgment in the first action did not estop the defendant from pleading and proving that defendant, by reason of a breach of the conditions of- his contract, was not entitled to recover commissions upon the renewal premiums.

Counsel for plaintiff also contend that the evidence is insufficient to sustain the findings of -the court upon which the judgments were rendered. We do not deem it necessary to go into a detailed examination of the testimony bearing on this question. That to which our attention is called appears to have been sufficient to1 sustain the finding of the court.

The judgment of the district court is affirmed..

Judgment affirmed.

Mr. Justice MussEr and Mr. Justice Hill -concur.