Rodman v. Michigan Central Railroad

59 Mich. 395 | Mich. | 1886

Sherwood, J.

A case between these parties, involving the same transaction, was before this Court, and decided at the October term, 1884 (55 Mich. 57). It was held in that case, upon demurrer, by the judge of the superior court of Detroit, that the plaintiff’s declaration did not state a cause of action, and judgment was given for the defendant. From that judgment the plaintiff appealed to this Court, and the judgment of the superior court, on an equal division of this Court, was affirmed under the statute.

Since then the plaintiff has renewed his suit in the same coirrt at Detroit, and upon a new declaration, and as he claims, containing the averments omitted in the old one, which by the prevailing opinion here proved fatal thereto ; •and upon a trial before a jury thereon has succeeded in obtaining a judgment in his favor for the sum of $1,500 damages. From this judgment the defendant appeals.

The entire proceedings had in the case are now before us for review. The defendant’s counsel did not demur in the present suit, but pleaded to the declaration the general issue, and gave notice thereunder that he would insist, upon the trial, that the judgment in the first case is a bar to the present suit.

The defendant’s counsel now claims the issue sought to be tried in this case is res adjudícala; that the judgment in the first case is still in force upon the merits, upon the same cause of action, and between the same parties; that the judgment was final and conclusive between the parties.

I am not prepared to accept this doctrine. How it can be said that the merits of a plaintiff’s case have been passed upon, when the declaration does not state his case, or any merits, I am not able to comprehend. It was twice adjudicated that the declaration in the first case was without merits, that it did not state the plaintiff’s cause, or any cause, for the demurrer was held general. How a declaration containing a statement of facts, entitling a plaintiff to nothing, can be made to defeat a recovery under a declaration containing a statement of facts, entitling the plaintiff to a judgment, for $1,500,1 confess I have never been quite able to understand. A practice which will allow this to be done can find no support in reason or justice, and can never receive my sanction. This, however, must be done if the bar in this case is to be maintained.

The question of res adjudieata seems to have been the principal one raised in the case, and I think no error was committed in the ruling upon the subject.

The changes made in the old declaration, in framing the one in this suit, remedied the defects complained of, if any existed, in the old one, and the fact that no demurrer was interposed to the one in the present case would indicate that a different view was not very strongly entertained by defendants counsel.

I feel quite satisfied with the opinion given by my brother CnAMPLiN upon the several questions discussed in the former case, and see no occasion for their repetition here.

The charge made by Judge Chipman, in this case, was clear and well guarded, and covered all the questions in the case upon which the jury needed instructions.

I do not think any error was committed in any of the rulings or charge of the learned judge of the superior court, and the judgment should be affirmed.

Morse and Champlin, JJ., concurred. Campbell, C. J.

I do not think that the cause of action in the present case differs at all from what it was when formerly before us. The declaration there was demurred to as showing no cause of action, and plaintiff, without amending, chose to put himself on that issue, which was decided against him. It is manifest on the face of the record that the suit is for the precise cause of action sued for before, and I. do not understand that the declaration has introduced any legally new element. 0

If the conductor can, under any circumstances, assume the charge of the engine, it is one of the risks of the business which the' brakeman undertakes; and if he sees fit to act in his vocation and couple cars when the conductor is so acting, I do not see how the case differs from any other where he does the same work. The conductor does not, while so acting, cease to be conductor and become a general agent of the company to employ himself in some other capacity. If the company is not in fault in employing him as conductor, it cannot be any more in fault for what happens while he is acting in anything which a conductor is authorized to do. He may himself be liable for his own negligence, but the negligence of those in the same work is not a cause of recovery, in favor of an employe against the company.

Both as an original question, and as a case where the litigation has once been terminated by a judgment, I think there is no liability in this case.