262 N.W. 450 | Minn. | 1935
In March, 1933, plaintiff instituted an action against these respondents and also against the Standard Oil Company, a corporation, to recover damages for personal injuries sustained in an explosion of a tar compound manufactured by the oil company and sold to plaintiff by respondents, hardware retailers. The explosion occurred when the tar compound came in contact with an "open flame" light while plaintiff and his son were spreading the compound upon the walls of a cistern they were repairing under the floor of a farm dwelling house. Respondents demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. Thereafter plaintiff caused to be served *220 an amended complaint, which was also demurred to by respondents upon the same ground. The amended complaint alleged, substantially, that the Standard Oil Company had manufactured and placed upon the market for general sale and use a tar product, designed and intended by it as a substitute for and to take the place of the ordinary tar product, which was intrinsically and inherently dangerous in that it was highly explosive in the ordinary use thereof; that the oil company carelessly, negligently, and unlawfully manufactured and placed its said tar product upon the general commercial retail market without a stamp, label, or warning upon the containers of such product to indicate the dangerous character thereof or that the same was likely to explode in the ordinary use thereof; that prior to June 4, 1931, the oil company sold to respondents several barrels of said tar compound; that respondents "knew, or but for the want of ordinary and reasonable care and diligence on their part, would have known of the intrinsic and inherent dangerous nature, character and tendency of said tar product to explode"; that on June 4, 1931, respondents carelessly, negligently, and unlawfully sold and delivered five gallons of said tar product to plaintiff and his son to be used by them in their work as contractors and builders and especially for coating the interior of a cistern, without giving them or either of them any notice, information, or warning as to the dangerous character thereof or of its high explosive tendency, etc. Then follow allegations with respect to the use by plaintiff of the tar product, its explosion, and injury to him.
The court sustained the demurrer and granted plaintiff 20 days' time within which to amend his complaint, "if so advised." In its memorandum the court cited and quoted from the case of McCrossin v. Noyes Bros. Cutler, Inc.
On October 28, 1933, the present action was commenced by plaintiff against respondents, who are the same defendants as those in the former action except that the Standard Oil Company was not named as a defendant. This action was instituted to enforce the same right as was the former, but the complaint alleged that plaintiff ordered tar from respondents and that they "negligently and carelessly sold and delivered to plaintiff five gallons of a tar compound which said defendantsknew should be kept away from fire, heat and open flame lights and should not be dropped while contained in a container, and which facts the said defendants negligently and carelessly failed and neglected to inform this plaintiff, when said tar product was thus delivered to him." Respondents, answering separately, interposed as a defense the judgment and order of the court sustaining the demurrer to the amended complaint in the original action. The issue of former adjudication was stipulated to be tried before the other issues raised by the pleadings. The court made findings of fact and conclusions of law and ordered judgment dismissing the action on its merits, holding that the judgment in the former action was a bar to the instant one.
It is well settled that a judgment upon the facts presented in a complaint and confessed by demurrer is as effectual as a bar as if there had been a verdict on the same facts. Driscoll v. Bd. of Co. Commrs. of Ramsey Co.
"The judgment entered after the former appeal merely pronounced the complaint therein involved insufficient, because a good cause of action was not stated. It determined that the case there presented by the pleading was without merit, and to that extent only was there any decision upon the controversy. The facts set out in the present complaint, and especially those which render it a sufficient pleading, have never been litigated or passed upon in any way; and 'it is therefore illogical and an abuse of terms to say that the judgment relied upon is a judgment upon the merits of the present case, and for that reason must operate as a bar.' "
Watson v. St. Paul City Ry. Co.
"The order sustaining the demurrer merely determined that the facts alleged did not constitute a cause of action. It did not prevent respondent from amending the complaint and alleging, as he does now, that the destruction of the buildings was due to the fault of the appellant. Therefore the judgment is not a bar to a subsequent action in which the first cause of action is restated with additional facts which, considered together, constitute a good cause of action. This is so notwithstanding the general rule that a judgment upon the facts of an action, as presented in the complaint and confessed by a general demurrer, is upon the merits and is as effectual as a bar or estoppel as if there had been a verdict on the same facts." *223
The facts confessed by the demurrer to the amended complaint in the first action were that respondents "knew, or but for the want of ordinary and reasonable care and diligence on their part, would have known of the intrinsic and inherent dangerous nature, character and tendency of said tar product to explode." That confession amounted to nothing more than would an affirmative answer to a question put in the alternative. It did not confess that respondents "knew" that the tar product "should be kept away from fire, heat and open flame lights and should not be dropped while contained in a container," as alleged in the complaint now before us. The order sustaining the demurrer to the amended complaint determined nothing more than that respondents as vendors of another's proprietary product were not required to analyze or ascertain at their peril whether the tar product contained any dangerous substance and give warning accordingly, and that the amended complaint was defective because alleging in the alternative facts upon which a cause of action might be predicated and facts upon which a cause of action could not be based. Actual knowledge on the part of respondents of the dangerous nature of the product and failure adequately to warn thereof would give rise to a good cause of action. McCrossin v. Noyes Bros. Cutler, Inc.
Having disposed of the case on the above ground, we need not consider whether the present action is for breach of contract rather *224
than tort, as was the original action, and, if so, whether or not it is barred if the original action was determined on the merits. It is probable that it would be barred. Hoofnagle v. Alden,
Reversed.
JULIUS J. OLSON, JUSTICE, took no part.