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Masters v. Central Ill. Elec. & Gas Co.

OCTOBER 9, 1957.

J. MASTERS AND SUSAN T. MASTERS, PLAINTIFFS-APPELLANTS,

v.

CENTRAL ILLINOIS ELECTRIC & GAS CO., FRANK WOJCIK AND A.F. WOJCIK, PARTNERS D/B/A WOJCIK CONSTRUCTION CO., A. REYNER EASTMAN, AUBREY J. GREGORY AND HILMER T. ANDERSON, PARTNERS D/B/A GREGORY EXCAVATING CO., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago county; the Hon. WILLIAM M. CARROLL, Judge, presiding. Reversed and remanded.

JUSTICE MCNEAL DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 1, 1957.

This action was brought by the plaintiffs, J. Paul Masters and Susan T. Masters, to recover damages occasioned by a gas explosion which demolished their newly constructed dwelling house and contents. Plaintiffs alleged that the explosion was caused by the negligence of the Central Illinois Electric & Gas Co., which installed a gas service line, Frank Wojcik and A.F. Wojcik, partners d/b/a Wojcik Construction Co., general contractors who built the house, A. Reyner Eastman, architect who supervised the construction, and Aubrey J. Gregory and Hilmer T. Anderson, partners d/b/a Gregory Excavating Co., whose employee struck the service line with a grading machine, thereby pulling the line loose from the gas meter in the house and allowing the escape of gas which exploded.

On the first trial the court directed verdicts in favor of the Construction Company and the architect Eastman at the close of plaintiffs' case, the jury returned a verdict for $42,000 against the Gas Company, and found the Excavating Company not guilty. On post-trial motions the court granted the Gas Company's motion for judgment notwithstanding the verdict, and allowed plaintiffs' motion for a new trial as to the Excavating Company. This court denied the Excavating Company's petition for leave to appeal, affirmed the judgments in favor of the architect and Construction Company, and reversed and remanded for a new trial as to the Gas Company. Masters v. Central Ill. Electric & Gas Co., 7 Ill. App.2d 348.

The second trial resulted in a hung jury. At the third trial the jury returned a verdict finding the Gas Company and the Excavating Company not guilty and judgment was entered on the verdict. Plaintiffs' post-trial motion was denied and plaintiffs appealed.

The complaint and factual situation are set forth fully in the former opinion. Plaintiffs state that the evidence in this record is identical with that on the former appeal, and defendants have pointed out no substantial difference. On the former appeal this court held that the trial court properly directed a verdict in favor of the Construction Company because there was no evidence of negligence, and in favor of the architect because there was no evidence that he violated any duty he owed to plaintiffs. On the third trial the Gas Company and Excavating Company proceeded on the theory that the architect or the Construction Company was negligent; that such negligence contributed to cause the explosion; and therefore that plaintiffs could not recover on account of the contributory negligence of "their agent or agents." The trial court adopted defendants' theory and instructed the jury accordingly.

On this appeal plaintiffs contend that by the former verdict and judgment the defendants were estopped from claiming that the architect and the Construction Company were guilty of negligence; that the trial court erred in giving instructions tendered by defendants; and that the verdict finding the Gas Company and Excavating Company not guilty is contrary to the manifest weight of the evidence.

The rules applicable to the doctrine of former adjudication and estoppel by verdict have been defined by the Supreme Court in many cases. "An estoppel by verdict is but another branch of the doctrine of res judicata, and it rests upon the same principle of law; that is, that a matter once litigated between parties to a final judgment in a court of competent jurisdiction cannot again be controverted. When this doctrine is applied to a single question or point arising in the course of litigation which has finally been adjudicated, it is designated as an estoppel by verdict, and the same question or point cannot again be litigated between the same parties in the same or any other court of law or in chancery, and neither party, nor their privies, will be permitted to allege anything inconsistent with the finding upon that question." Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485, 493.

"In applying the doctrine of estoppel by judgment, the distinction has been made between the finality of a judgment as a bar or estoppel where the second demand is for the same cause of action and between the same parties or their privies as the former action and those cases where the second action is between the same parties but upon a different claim or cause of action. If the action is of the former class, the judgment operates as an estoppel not only as to every matter actually litigated in such action, but extends to all grounds of recovery or defense which might have been presented." Ohio Nat. Life Ins. Co. v. Board of Education, 387 Ill. 159, 167.

"Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties or their privies, its adjudication in the former suit if properly pleaded, will be conclusive of the same question in the latter suit. This is so irrespective of the question whether the cause of action is the same in both suits. . . . Under this rule in order that the judgment in the first suit shall operate as an estoppel in the second suit, it must appear on the face of the record or be shown by extrinsic evidence that the precise question was raised and determined in the first suit." City of Elmhurst v. Kegerreis, 392 Ill. 195, 202.

In Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401, the Dairy and its driver, Vandeville, brought suit for damages to its truck and for his personal injuries against Mary Emery, owner, and her son, William, driver of her automobile which collided with the truck. She counterclaimed for property damage to her auto. The Court of Appeals held that the Emerys could plead as an additional defense that in another suit William had recovered judgments against the Dairy and Vandeville. The court said: that since it had been adjudicated that the operator of Mary Emery's automobile was not negligent as to the plaintiffs, that question was foreclosed and the plea of res judicata was available to her. The court referred to Portland Gold Mining Co. v. Stratton's Independence, 158 F. 65, 68, wherein the Eighth Circuit Court of Appeals said that if a defendant's responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel. The New York Court of Appeals further said: "Thus it has been held that where the liability of a principal or master is derivative, a judgment on the merits in favor of the servant or agent from whom the liability is derived may be set up as a defense by the principal or master, although he was not a party to the earlier action. . . . Under such circumstances the judgment is held to be conclusive upon those who were parties to the action in which the judgment was rendered. Where a full opportunity has been afforded to a party to the prior action and he has failed to prove his freedom from liability or to establish liability or culpability on the part of another, there is no reason for permitting him to retry these issues."

In Voss Truck Lines, Inc. v. Pike, 350 Ill. App. 528, Voss, owner of a trailer, and Curtis, owner of a tractor, brought suit in Sangamon county against Pike, owner of a truck, and the administrator of the estate of Howard, deceased driver of the truck, for damages resulting from a collision of the vehicles. Both defendants answered and Pike counterclaimed against both plaintiffs for damages to the truck, alleging that Price was Voss' driver of the tractor, leased by Curtis to Voss. Plaintiffs moved for summary judgment on the ground that Price had obtained a verdict and judgment against Pike in a McLean county suit in which Pike had answered and counterclaimed against Price, and also against Voss and Curtis who were made additional parties. The circuit court in Sangamon county allowed the motion for summary judgment finding Price, Voss and Curtis not guilty on Pike's counterclaim against them, and awarding damages to Voss and Curtis.

The Appellate Court, Third District, held that the McLean county judgment was not conclusive on the question of the contributory negligence of the plaintiff Voss, because it was not determined by that judgment that Voss could be guilty of no negligence contributing to the accident aside from the acts or conduct of its servant, Price, and reversed and remanded the case for trial on the merits. However, the Court said (p. 536): "As to the contributory negligence of Price, insofar as it is involved in the Sangamon County case, and the negligence of Pike, there would seem to be no question but that Voss is entitled to the benefit of an estoppel by verdict and the findings in the McLean County case are binding as between Voss and Pike."

In Hanna v. Read, 102 Ill. 596, 603, the court said that estoppel by verdict "is equally available to a plaintiff in support of his action, when the circumstances warrant it, as when ...


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