A. B. C. Truck Lines, Inc. v. Kenemer , 247 Ala. 543 ( 1946 )

The plaintiff's complaint consisting of a single count sets forth its claim, omitting averments of inducement, as follows: "The servant, agent or employee of defendants while acting within the line and scope of his employment did so negligently operate a motor vehicle of defendants as to cause or allow the same to run upon or against said truck and trailer of plaintiff and plaintiff's truck and trailer and the cargo contained therein were thereby severely damaged or destroyed and caused to depreciate in value; plaintiff further shows that all of his injuries and damages aforesaid were sustained as a proximate consequence of the aforesaid negligence of defendants' servant, agent or employee, acting within the line and scope of his employment." Under this complaint the plaintiff could show not only initial negligence but subsequent negligence, and although it might be found that the plaintiff was guilty of contributory negligence which barred a recovery for initial negligence, nevertheless, he could still recover for subsequent negligence or negligence after the discovery of peril. Therefore, if we concede that the Georgia proceedings evidenced initial negligence on the part of the plaintiff which concurred in causing the collision this negligence was not a bar to plaintiff's right to recover for subsequent negligence. Central of Georgia R. Co. v. Forshee, 125 Ala. 199, 27 So. 1006.

It clearly appears from the averments of defendant's plea of res judicata numbered 1 that the only claim involved in the suit by Kenemer against the truck lines, brought in the civil court of Fulton County, Georgia, was the claim of Kenemer against the truck lines for damage to Kenemer's property, to wit, a truck. It further appears that the claim of the A. B. C. Truck Lines, Inc., the plaintiff in this case, for damage to its truck and trailer was not impleaded in that litigation and hence the court's jurisdiction over that claim was not invoked. It is too clear to permit of controversy that the claim of the plaintiff in this case is different and distinct from the claim involved in the litigation in the Georgia court. The subject matter of that litigation was the claim of Kenemer against the truck lines.

It further appears from the exhibits attached to said plea that the issue of contributory negligence of the plaintiff in the case as a bar to its recovery on its claim was not litigated in the Georgia court.

In applying the doctrine of res judicata it must be borne in mind that there is a wide difference between the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand, or cause of action, and its effect to preclude the relitigation of particular facts or issues in another action between the same parties on a different claim or cause of action. Tait v. Western Maryland R. Co., 289 U.S. 620,53 S.Ct. 706, 77 L.Ed. 1405; Baltimore S. S. Co. v. Phillips,274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; Central of Ga. R. Co. v. Dothan Nat. Bank, 206 Ala. 602, 91 So. 351; Commissioners' Court, Tuscaloosa County v. State, 180 Ala. 479, 61 So. 431; Crowder v. Mining Co., 127 Ala. 254, 29 So. 847; Irby v. Commercial Nat. Bank of Eufaula, 204 Ala. 420, 85 So. 509.

A final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand, and cause of action. Tait v. Western Maryland R. Co., supra; Cromwell v. Sac County, supra; Bank of North America v. Wheeler, 28 Conn. 433, 73 Am.Dec. 683; McEwen v. Grocers' Loan G. Co., 116 Fla. 540, 156 So. 527. If, however, the two suits do not involve the same claim, demand, or cause of action, such effect will not be ordinarily given to the prior judgment. Myers v. International Trust Co., 263 U.S. 64, 44 S.Ct. 86,68 L.Ed. 165; Schleicher v. Schleicher, 120 Conn. 528, 182 A. 162,104 A.L.R. 572. In this respect, it is worthy of notice that there must be not only identity of subject matter, but also of the cause of action, so that a judgment in a former action does not operate as a bar to a subsequent action, where the cause of action is not the same, although each action relates to the same subject matter. United Shoe Machinery Corp. v. United States, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708; Creek v. Laski, 248 Mich. 425, 227 N.W. 817, 65 A.L.R. 1113; Cook v. Conners, 215 N.Y. 175, 109 N.E. 78, L.R.A. 1916A, 1074, Ann.Cas. 1917A, 248.

In Bell v. Jones, 223 Ala. 497, 36 So. 826, 829, an original petition for mandamus addressed to this court, a suit was instituted by Baggett Freight Lines against Bell claiming damages for injury to its truck in the circuit court of Jefferson county. Bell instituted suit in the circuit court of Montgomery county against the New York Indemnity Company, the insurance carrier of Baggett Freight Lines, claiming damages for personal injury and property loss growing out of the same accident or occurrence. The insurance carrier filed a plea in abatement in the Montgomery circuit court setting up the pendency of the action in the Jefferson circuit court, alleging that the issues in both cases were the same, and that a determination of those issues in the suit first brought in the Jefferson circuit court would settle the controversy, praying that the action be abated in the Montgomery circuit court. The court made an order to that effect, and the purpose of the petition for mandamus was to have that order vacated. The basis of the argument in substance was that the Indemnity Company was standing in the shoes of the Baggett Freight Lines, being in privity with it by contract, and therefore a judgment for or against Baggett, plaintiff in the Jefferson circuit court, would be conclusive between Bell and the insurance carrier as to the issues of negligence.

The writ was granted by this court requiring the Montgomery circuit court to vacate the order and restore the case to the docket for trial. While much was said in the opinion of Justice Thomas, the authoritative utterance is found in the last paragraph of the opinion: "All the Justices are agreed that the several suits in question, presented by the petition, are separate and independent; that the parties to be bound are different and sued in different rights; and that the circuit judge was in error in staying or abating the Montgomery county action. The writ will issue to the extent of and for the setting aside, annulment, and cancellation of 'said judgment of April 25, 1931, and to restore said cause to the trial docket of said court,' thereafter to be called and dealt with under the law and procedure obtaining in the circuit court."

That the Indemnity Company, the defendant in the Montgomery circuit court, stood in the shoes of the Baggett Freight Lines in so far as the issue of negligence was concerned there can be no doubt, and could defend on the ground of concurring contributory negligence by Bell, if such negligence could be established, but the Indemnity Company had no right or authority to plead the claim or cause of action of Baggett Freight Lines asserted against Bell in the Jefferson circuit court in the Montgomery circuit court. The issue of contributory negligence as to Baggett's claim was purely defensive and could be asserted only in the court where that claim was pleaded as a basis of the cause of action. This is also true as to contributory negligence of Bell; this defense could only be asserted in the action in the Montgomery circuit court against the claim of Bell. Therefore, the holding in the case of Bell v. Jones, supra, supports this opinion, and demonstrates that the Georgia judgment is not good as res judicata.

Analogous to the question presented in this case, Myers v. International Trust Co., supra, holds that an action to recover damages for deceit in obtaining money by a false statement of financial condition is not the same as an opposition to a confirmation of a composition in a bankruptcy proceeding because of such alleged deceit, and therefore a judgment allowing a composition is not a bar to an action for deceit on the ground of res judicata.

Schleicher v. Schleicher, supra, holds that a judgment for the defendant in an action to determine title to realty does not preclude the plaintiff therein from subsequently bringing an action against the defendant to recover sums expended by him for carrying charges and repairs while occupying the premises under a bona fide claim of ownership.

In Central of Ga. R. Co. v. Dothan National Bank, supra, the plaintiff purchased a car of cotton seed meal and consigned it to himself at Richmond, Virginia, delivered it to the railroad company taking its bill of lading therefor, notify buyer, and in payment seller drew a draft on buyer for price attached to the bill of lading which seller endorsed to complainant bank, and the goods were delivered by connecting carrier to another company without bill of lading, which company deposited the invoice price and subsequently sued the carrier and plaintiff in a Virginia court for the return of the money to which plaintiff made no claim. This case holds that plea of res judicata, rested upon the judgment of the Virginia court, was no answer to an action against the carrier for conversion, pleas not showing that the plaintiff had ratified or waived its rights under the shipping contract. In that case this court speaking through the then Chief Justice observed [206 Ala. 602,91 So. 356]: "Pretermitting other reasons and conceding, only for the purpose of deciding this case, that the Virginia judgment, set out in the defendant's pleas, was valid and binding upon this plaintiff as to the matters thereby adjudicated; yet the pleas fail to show that the claim or demand in the present suit was involved and adjudicated in the Virginia suit, and the action of the trial court, in sustaining the plaintiff's demurrer to the defendant's special pleas, can be affirmed on this ground alone."

Irby v. Commercial National Bank of Eufaula, supra, holds that while a former judgment is a bar or estoppel against the prosecution on the same claim or demand between the same parties, and concludes them, not only as to what was offered to maintain or defeat the claim or demand, but as to any other admissible matter which might have been offered; but that where the subsequent action between the same parties is upon a different claim the judgment in the former action operates as res judicata only as to matters in issue, or points controverted, and upon which the determination and finding, or verdict, was rendered.

In Commissioners' Court, Tuscaloosa County v. State, supra, this court held that a judgment denying a writ of mandamus to compel the commissioners to pay over to the city a part of the proceeds of a special road tax was not res judicata of a proceeding to compel the Commissioners' Court to pay over to the city a portion of a general tax appropriated to the Road and Bridge Fund. The two claims being separate and distinct.

These authorities, and the preceding observation, are sufficient to show that the defendant's plea 1 was subject to the objection pointed out by grounds 23 and 24 of plaintiff's original demurrer, and grounds 23, 24, and 25 of the additional demurrer. Ground 9 of the additional demurrer takes the point that the averment of the plea "that the matters and things set up in plaintiff's complaint have been adjudicated against plaintiff", is a conclusion of the pleader.

Defendant's special plea 2 is subject to the same objections. It, like plea 1, pleads the identity of the "accident", but not the identity of the claim, demand or cause of action.

It appears from the exhibit to said pleadings that the action in the Georgia court was commenced by attachment on the grounds that the defendant, A. B. C. Truck Lines, Incorporated, was a non-resident corporation, organized under the laws of Florida, and the claim set forth in the initial affidavit or pleading was for $1,685.75. The attachment was levied upon one 1 1/2 ton Chevrolet truck, and one Frauhof trailer. That notice of the pending attachment was, as indicated by officer's return, "served the defendant A. B. C. Truck Lines, Inc., a corporation, by serving a copy of the within notice on H. M. Clokey, in charge of the office and place of transaction the usual and ordinary public business of said corporation, in Fulton County, Georgia." There is nothing in the proceeding to show that the truck lines had qualified to do business in the state of Georgia, nor that Clokey was an agent of the defendant upon whom process was authorized to be served. The statute of Georgia authorizing service of process on foreign corporation is not pleaded. Said proceedings also show that John M. Slaton and James J. Slaton appeared and filed in the attachment proceeding a denial of the material allegations of the complaint as attorneys for the defendant in that suit.

The plaintiff's replications aver that said John N. Slaton and James J. Slaton were not employed by the plaintiff truck line, but were employed by an insurance carrier who had issued a policy of liability insurance to plaintiff covering the claim involved in said suit, in which said insurance carrier agreed to defend said suit, and that said carrier should have the right to make investigation, negotiations and settlement of any claim or suit as might be deemed expedient by said company. That said attorneys, acting under and by virtue of their employment by said insurance company, consented and agreed to the entry of said judgment in the Georgia court for $250 without the consent of the plaintiff, that the judgment was not entered after a trial of the cause upon its merits, but entered by consent by the defendant Kenemer and the attorneys representing the insurance company; and that said insurance company paid said judgment. Attached to the replication is a copy of the insurance contract in which the following stipulation appeared:

"11. Defense, Settlement, Supplementary Payments.

"As respects such insurance as is afforded by the other terms of this policy under coverages A and B the company shall

"(a) defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company;

"(b) pay all premiums on bonds to release attachments for an amount not in excess of the applicable limit of liability of this policy, all premiums on appeal bonds required in any such defended suit, but without any obligation to apply for or furnish such bonds, all costs taxed against the insured in any such suit, all expenses incurred by the company, all interest accruing after entry of judgment until the company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the company's liability thereon, and expenses incurred by the insured, in the event of bodily injury, for such immediate medical and surgical relief to others as shall be imperative at the time of accident;

"(c) reimburse the insured for all reasonable expenses, other than loss of earnings, incurred at the company's request."

There is nothing in this stipulation to authorize the insurance company, or the attorneys employed by it, to implead the plaintiff's cause of action in this case in the Georgia court proceeding.

Conceding, for present purposes, that the averments of the replications to defendant's pleas is a collateral attack upon the Georgia judgment, and not a mere interpretation of the record in that proceeding, it is well settled that such foreign judgment is subject to collateral attack when impleaded in the courts of this state. Zorn v. Lowery, 236 Ala. 62, 63,181 So. 249, 250. In that case this court speaking by one of the distinguished Justices observed: "There is a distinction between the effect of a domestic judgment rendered on the appearance of an attorney without authority from that of a foreign judgment, when under collateral attack. As to a domestic judgment the rule seems to prevail that it is not subject to collateral attack on that ground, but that it is so when a foreign judgment is thus under attack. Wise v. Miller,215 Ala. 660, 111 So. 913; Harshey v. Blackmarr, 20 Iowa 161, 89 Am.Dec. 520, 523; 5 Am.Jur. 310, § 83; 34 Corpus Juris 537, § 840, p. 1148, § 1625; 88 A.L.R. 36. Compare Mason v. Calhoun,213 Ala. 491, 105 So. 643 and Kingsbury v. Yniestra, 59 Ala. 320. "

It appears on the face of the proceeding that in the proceeding in the Georgia case, as we have pointed out, the claim involved in the suit in this case was not pleaded, and for this reason on the face of the proceeding the Georgia court had no jurisdiction over that claim. It also appears on the face of the proceeding that no proof was made, and the return of the officer does not recite, that the person upon whom process was served was an agent of the corporation, plaintiff in this case, upon whom service could be perfected.

The statute of Georgia in respect to the service of process on foreign corporations not being made to appear here by pleading, in the construction of said pleading we will apply the law of the forum which requires that the return of the officer as to the service of process show, "that the person to whom delivered is an agent of the corporation, or proof must be made that such person upon whom process was served was such agent". Peet Co. v. Hatcher, 112 Ala. 514, 522, 21 So. 711, 57 Am.St.Rep. 45; see also Code 1940, Tit. 7, § 188; Baker v. Sparks, 202 Ala. 653, 654, 81 So. 609; St. Mary's Oil Engine Co. v. Jacksonville Ice, etc., Co., 224 Ala. 152, 138 So. 834; Palatine Ins. Co. v. Hill, 219 Ala. 123, 121 So. 412; Ex parte New Home Sewing Mach. Co., 238 Ala. 159, 189 So. 874. In the Peet Company v. Hatcher case it was observed [112 Ala. 514,21 So. 713]: "It may be well said that, as we judicially know no other law of the case than our own, the parties litigant, by failing to produce the lex loci contractus, impliedly agree that it is the same as the lex fori, be the latter common law or statute. Thus, it may be regarded as settled in this state that when a contract made in a state or country wherein we cannot presume the existence of the common law is sought to be enforced in the courts of this state, and the lex loci is not produced, we will apply to it our own law."

Our judgment, therefore, is that the court erred in overruling the plaintiff's demurrer to the special plea and to the replications, and for these errors the judgment must be reversed.

The concurring opinion of Mr. Justice Foster overlooks the fact that some of the essential elements of res judicata, or res adjudicata, so far as applicable to the plaintiff's claim or cause of action, is absent in the Georgia court proceedings. To restate the doctrine, the court must be a court of competent jurisdiction — that is, must have conferred upon it by law the authority to adjudge and settle such controversies or disputes, if and when its jurisdiction is invoked in the particular proceeding, by appropriate pleading according to the course of the common law, that is, pleadings previously provided for and authorized by law. Ex parte Wilkey, 23 Ala. 375, 172 So. 111; Benners v. First National Bank of Birmingham et al., Ala.Sup.,22 So.2d 435, 438.¹ And, must have acquired jurisdiction of the person in accordance with the principles of due process of law.

What is the "res"? As applied to the plaintiff's case the answer is, its claim, demand or cause of action. This much is conceded by Mr. Justice Foster, but he overlooks the fact that to quicken into exercise the court's jurisdiction there must be an appropriate pleading, according to the course of the common law, a complaint or a plea of recoupment. "A plea of recoupment, which advances a counterclaim and seeks judgment over, must set forth the defendant's claim with the same certainty in averment as is required in stating a cause of action in a complaint." Berlin Machine Works v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567; J. C. Lysle Milling Co. v. North Alabama Grocery Co., 201 Ala. 222, 77 So. 748. Hence, the Georgia court's jurisdiction was not invoked or quickened into exercise over the "res".

What does the term "judicata", or "adjudicata" import? The answer to this is not difficult. It imports the application of judicial power duly invoked and authorized by law. Such was not the effect of the Georgia judgment. Plaintiff's claim was not pleaded, and in the absence of such pleading plaintiff's contributory negligence as to his claim was not pleadable.

Mr. Justice Foster in his concurring opinion says the difference between plea 1 and plea 2 is that plea 1 is in substance that the negligence of the defendant (Kenemer) was adjudicated in the Georgia case in which Kenemer was plaintiff, whereas, plea 2 is in substance that the negligence of the truck lines, plaintiff in the instant case, was adjudicated in that same Georgia case, and that it was there determined that it was negligence. Then he observes: "The instant suit is for simple negligence, and therefore plaintiff's contributory negligence is a complete bar to recovery, and was set up in plea 2. That defense under that plea is proven by proving the allegations of plea 1. So that plaintiff cannot be injured by the error if any in overruling the demurrer to plea 1."

As we understand the statement it is, that Kenemer, the defendant in this case, by plea 1 has pleaded his own negligence to the plaintiff's cause of action, and that the averment of defendant's plea 1 proves the averments of plea 2, which set up contributory negligence in the Georgia proceedings. Said plea 2, eliminating all else, it may be conceded by the averment "that the servant, agent or employee in charge or control of the truck A. B. C. Truck Lines, Inc., on the occasion complained of in plaintiff's complaint, was guilty of negligence which proximately caused the collision referred to in plaintiff's complaint in the case at bar, in or about the operation and control of said automobile truck on the occasion complained of" could be accepted as an original plea of contributory negligence in this suit or action, subject to proof in this case, but the averments of said plea do not show, nor do the exhibits attached show, that this defense was pleaded or could have been pleaded in the Georgia case, for the simple reason that the court's jurisdiction over the plaintiff's claim in this case was not invoked.

There is another fact patent on the face of the record in the Georgia court when construed in connection with the suit in this case — the first action brought. Said Georgia proceedings subsequently instituted was a rush proceeding, an attempt, no doubt, to foreclose litigation of plaintiff's claim, and when taken in connection with the averments of the replications was conducted by the insurance company carrying the liability of plaintiff with Kenemer's consent as a means of settling its own liability at a minimum cost; and was done without the consent of the plaintiff. Said insurance carrier and its lawyers were without authority to compromise or destroy the plaintiff's cause of action without its consent. Senn v. Joseph, 106 Ala. 454,17 So. 543; Craft v. Standard Accident Insurance Co.,220 Ala. 6, 123 So. 271; National Bread Co. v. Bird, 226 Ala. 40,145 So. 462.

Nor, does the Georgia court proceedings, as we have heretofore pointed out, show jurisdiction of the plaintiff's person by due process of law.

However treating plea 2 as an original plea of contributory negligence in this case to be proved on the trial, it is bad in that it characterizes the "collision" and not the injury or damage as negligently caused.

Herein lies the major vice of the pleas in this case, they plead the collision as the "res", not the injury or damage. Harrison v. Formby et al., 225 Ala. 260, 142 So. 572; Decatur Car Wheel Mfg. Co. v. Mehaffey, 128 Ala. 242 (255),29 So. 646.

¹ Ante, p. 74.