206 A.D. 584 | N.Y. App. Div. | 1923
John S. Weekes, deceased, was the owner of household and personal property contained in his home in the city of Schenectady, N. Y. He had it insured for $1,000 against loss or damage by fire under a policy written by the plaintiff company. On November 23, 1919, a gas explosion occurred in the cellar of his home resulting in his death and in fire damage. The defendant had installed in "the cellar its meter and pipes for the purpose of supplying gas for his household purposes. There was a leak in the pipes or meter of which the defendant had been notified but did nothing to repair. On that morning the decedent went into the cellar with a lighted lantern after his wife had again spoken to him about smelling gas. Shortly thereafter there was an explosion resulting in his death and in damage by fire to his household property insured under said policy. The fire started immediately after the explosion and the fire department was called to extinguish it.
An action was brought by the executrices of the decedent pursuant to article 5 of the Decedent Estate Law to recover the pecuniary loss, resulting from decedent’s death, to the persons for whose benefit the action is permitted to be brought under the Decedent Estate Law. A recovery was had by the plaintiffs of $15,000 and the judgment was affirmed by this court. (Weekes v. Adirondack Power & Light Corp., 199 App. Div. 137.) In that action the question of defendant’s negligence was in issue and this court held that while the case was a close one it could not be said that the verdict was against the weight of the evidence. The question of the decedent’s contributory negligence was also raised by the defendant. It being an action to recover damages for causing death, the contributory negligence of the person killed was a defense to be pleaded and proven by the defendant. (Decedent Estate Law, § 131;
The plaintiff, as insurer, paid for the fire damage to the personal property of the decedent resulting from the explosion. The plaintiff became subrogated to the rights of the estate of the decedent by an assignment of the executrices of their claim for the damages, alleged- to have been due to the negligence of the defendant in causing the explosion. This action is brought by the plaintiff as such assignee to recover such damages. At the trial the plaintiff made proof as to the title of the deceased to the property damaged, the issuance of the policy, the fact that the fire started immediately after the explosion, the damage to the property, the payment of the loss by the plaintiff and the assignment of the claim. The plaintiff made no attempt to make specific proof on the issues of negligence and contributory negligence but relied upon the judgment in the former action as a former adjudication of those issues., The plaintiff introduced in evidence the judgment roll in the former action and also the testimony taken upon that trial. It was stipulated that the court should take the case under advisement without the jury and should determine whether there was an issue of fact to be tried before the jury as to the negligence of the defendant and as to the contributory negligence of the deceased or whether these issues were res judicata by reason of the previous-action. The trial court determined the case as a matter of law, ruling that these issues were res judicata as between the parties and granted judgment for the plaintiff. •
The question is whether there was such identity of parties or their privies and of issues as to render the former adjudication res judicata here upon the issue of contributory negligence. We think there was neither identity of parties nor of issues. In the present case the plaintiff sues as privy to the rights of the executrices of the estate. While the executrices brought the former action as such, in a very real sense the former action was brought by them in
Moreover, the rights claimed by this plaintiff in the second action were not actually put in issue and litigated in the former suit. “ If an issue presented in a subsequent suit between the same parties or their privies is shown to have been determined in a former one, the question is res judicata, although the actions are based on different grounds, or tried on different theories, or are instituted for different purposes and seek different relief. The test of identity is found in the inquiry whether the same evidence will support both actions.” (24 Am. & Eng. Ency. of Law [2d ed.], 780; Clement v. Moore, 135 App. Div. 723; Williams v. Barkley, 165 N. Y. 48; Steinbach v. Relief Fire Ins. Co., 77. id. 498, 501; International Paper Co. v. Purdy, 136 App. Div. 189, 191.) The estoppel of a former judgment does not depend upon technicalities
In the application of the rule of res judicata it is essential that its operation be mutual. (2 Black Judg. [2d ed.] § 548.) If this present action had been the first one brought and judgment had
The judgment and order should be reversed upon the law and a new trial granted, with costs to the appellant to abide the event .
Cochrane, P. J., Van Kirk, Hasbrouck and McCann, JJ., concur.
Judgment and order reversed on the law and new trial granted' with costs to the appellant to abide the event.
Added by Laws of 1920, chap. 919.— [Rep.
Added by Laws of 1913, chap. 228.— [Rep.
Created, by Laws of 1847, chap. 450, as amd.; Code Civ. Proc. § 1902 et seq., as amd.; now Decedent Estate Law, art. 5, as added by Laws of 1920 chap. 919.— [Rep.