Hartman v. Pittsburg Inclined Plane Co.

Opinion by

Rice, P. J.,

It is claimed that the records of the judgments in the former suits were not admissible in evidence, unless accompanied by proof aliunde of the facts found by the jury on those trials. It might be true that the judgments would not be conclusive, per se, upon any of the questions in issue upon this trial, if there were any uncertainty as to the grounds of recovery in the former suits. The law upon this subject was clearly stated by Justice Field, as follows: “ It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record —as, for example: if it appear that several distinct matters may have been litigated, and upon which the judgment was rendered — the whole subject-matter of the action will be at large, and open to a new contention unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made when the record leaves the matter in doubt, such evidence is admissible: ” Russell v. Place, 94 U. S. 606. See also Leathery. Poultney, 4 Binn. 352; Wilson v. Hamilton, 9 S. & R. 424; Ruggles v. Gaily, 2 Rawle, 232; Coleman’s Appeal, 62 Pa. 252; Follansbee v. Walker, 74 Pa. 306; Susquehanna Mut. Fire Ins. Co. v. Mardorf, 152 Pa. 22; Hexter v. Bast, 125 Pa. 52; Kapp v. Shields, 17 Pa. Superior Ct. 524. In such a case, that is where the record leaves the matter in doubt and explanatory evidence has been given, the question of the conclusiveness in his favor of a former verdict and judgment for the plaintiff as to a matter directly involved in the second suit is to be determined, not dry. a mere inspection of the declaration filed in the former suit- but by the extrinsic evidence as _io. the claim-submitted to and determined by the jury. If the declaration in the first suit shows two claims, one of which is identical with the claim declared on in the second suit, it is competent to show that the other claim was eliminated from the case by judicial ruling or otherwise, and hence that the verdict and judgment were based on the claim identical with that declared on in the second suit. This, as shown'by the context, was what was meant by the concluding remark in Judge Reedeb’s opinion in the first case between these parties brought to this court: Hartman v. Pittsburg Incline Plane Co., 2 Pa. Superior Ct. 123. But if the record of the former trial shows that the verdict and judgment in the plaintiff’s favor could not have been rendered without the existence and proof or admission of certain facts alleged in the declaration, there is a necessary implication, or, to say the least, a prima facie presumption that such facts were admitted, or were proved to the satisfaction of, and found by, the jury. In such a case no extrinsic evidence as to the point decided need be offered in aid or in explanation of the judgment; the pleadings show the issue and the verdict and judgment show how it was decided. “ A judgment concludes, not only the technical fact in issue, but also every component fact necessarily involved in its determination: ” Rauwolf v. Glass, 184 Pa. 237; Weaver v. Lutz, 102 Pa. 593. These principles are applicable here. The pleadings show that, after the elimination of part of the plaintiff’s claim by the decision of the Supreme Court in 159 Pa. 442, the nuisance charged in this case is identical with that charged in the former cases. The plaintiff could not have recovered in the first suit without proof or admission of the facts, that the structure described in the report of the case last cited was maintained by the defendant, that it was negligently and improperly constructed or maintained — the language of the declaration is “carelessly, imperfectly and defectively built, constructed and maintained ” —and that by reason thereof it was the cause of injury to the plaintiff’s premises. The judgment therefore, in the absence of explanatory evidence, must be regarded as a conclusive adjudication of these matters; the conclusion that they were adjudicated arises by necessary implication from'the records offered in evidence. As was said in Rockwell v. Langley, 19 Pa. 502, which was a second action for a continuing nuisance, “ this action recites, and is founded upon the former judgment, and avers a continuance of the nuisance; and to this the plea is, not guilty, the only meaning of which here is, that the defendant has not continued the nuisance charged and found in the former action.” It follows that the'court committed no error in admitting the records of the former suits in evidence, or in the instructions complained of in the fifth assignment of error.

The plaintiff adduced ample evidence that the injury to the plaintiff’s premises complained of in the former suits continued down to the trial of the present action and that the damages resulted wholly or in part from the same cause as the damages complained of in the former suits. The defendant was permitted to show the contrary, and the jury were instructed to determine the questions : “ Has she suffered damage ? Has this structure continued to damage her, and if so, how much ? It was open for the defendant to show that it has remedied the trouble; that it has modified the structure so that it no longer damages her. Or it was open for it to show, when she submitted the amount of her damages, that the damage, or at least a part of it, came from another cause. Even if it maintained a structure there which made it liable for the damage resulting from it, it would not be liable for damage which resulted from another cause.” Then follows the instruction complained of in the sixth assignment which was immediately accompanied by the following qualifying statement: “Yet there still remains open the amount of the damage. It is still competent, as I have said, for these parties to show that this damage, or part it, came from another cause. If the structure has ceased to damage her, and they could show that by accounting for the damage on other grounds, then, of course, she could not recover. But outside of that, the matter was not open to contest.” The same idea was conveyed in other portions of the charge. Taking the instructions upon this subject, together with the affirmation of the defendant’s fifth point, as a connected whole, and construing them in the light of the evidence, we conclude that they were as favorable to the defendant as it had a right to ask. The sixth assignment is overruled.

The instructions complained of in the seventh assignment, relative to the evidence which it was the duty of the plaintiff to produce as to the possession or control of the structure, during the time for which damage was claimed in the present suit, were in exact accordance with our ruling upon the same question in Hartman v. Incline Plane Co., 11 Pa. Superior Ct. 438. All that we said in that case upon this question is equally pertinent here, and need not be repeated. This assignment is overruled.

The precise question raised by the tenth and eleventh assignments was distinctly raised and fully considered by us in the case last cited. We recognize its importance, but after a careful reconsideration of it in the light of the argument now presented, and the authorities cited, by the appellant’s counsel, we see no reason to change our conclusion. It is to be borne in mind that the plaintiff is not asking to recover by virtue of the constitutional obligation of defendant to make compensation for property taken, injured or destroyed. She alleges a nuisance resulting from negligence and her right to recover damages therefor is in no way dependent on the constitutional provision. As said by the learned judge below, the plaintiff’s complaint is not that the structure of defendant is a nuisance, but that the manner in which it turns the water against her wall constitutes a nuisance, and, of course, the law does not declare such damage, in its essential character, permanent. It may or may not be according to the circumstances, but as we endeavored to show in our former decision, no conclusive presumption of law or fact that it is so arises from the fact that the defendant is invested with the right of eminent domain. We still think that the case is plainly distinguishable from all of the cases, certainly from all of the Pennsylvania cases, cited by the appellant’s counsel, in which it was held that the damages were to be assessed upon the same basis as if there had been a permanent appropriation of the plaintiff’s land. These assignments are overruled.

At the outset of the trial the defendant’s counsel called the attention of the court to the election they had filed to have the alleged tort, which was the basis of the action, treated as a permanent one, and to have the damages assessed on that basis, and to the demand contained in said paper “ that any recovery that may be had in this case shall be for all damages in the future as well as the past.” The paper is quoted in full in the eighth assignment. Thereupon the court made the first ruling quoted in that assignment, which, as to the damages accruing after the date of the election, was in substantial accordance with the defendant’s request. But after the plaintiff had adduced evidence tending to show that the only way in which she could remedy the past injury and prevent future injury was by taking down the side wall and a portion of the front wall of her house, rebuilding the side wall farther away from the defendant’s structure, and laying it in cement, and then offered to show what this alteration of her house, and other changes thereby made necessary, would cost, the defendant objected to the offer “ as incompetent and irrelevant, and for the further reason that the damages to be assessed in this case are damages for the term of the present tenant, and are not the damages for the permanent injury to the property.” Inasmuch as the plaintiff was simply tenant for life and was suing for damages to her possession, it seems that this objection was well taken. It would have been equally valid against an offer to show the difference between the value of the premises as affected by the defendant’s negligently and defectively constructed structure and their value if the defects therein were remedied, the cause of the injury removed, and the nuisance abated. If, therefore, the defendant’s theory as to the assessment of damages was to prevail, it would seem that the only way it could have been applied in the present action was by determining the difference in value of her life estate, as above stated. By reason of the uncertainty of its duration there were manifest difficulties in the way of the assessment of the damages upon that basis. For this reason, in connection with those set forth very clearly and forcibly in the opinion of the learned judge below refusing a new trial, with which we concur, we think she could not be compelled to submit to an adjudication of her damages based on the jury’s speculation as to her probable duration of'life, where the injury of which she complained resulted, not from a cause that was permanent, in the sense that it was an inseparable incident to the construction and operation of the defendant’s road, or even to the maintenance of the structure, but from negligence in the construction and maintenance thereof. Hence the learned trial judge committed no error in reversing his former ruling and holding that the plain, tiff could only recover, as in the former cases, for the damage done her up to the time of trial. The eighth and ninth assignments are overruled.

Judgment affirmed.