Appeal from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.
February 16, 1965. Supplemental opinion, April 9, 1965. Rehearing denied,
Plaintiff, Chas. Ind Co., herein called Ind, appeals from an adverse judgment of the trial court in its suit for indemnity or action over against the defendant, Cecil B. Wood, Inc., herein called Wood. The matter was heard by the court without a jury. Ind was the general contractor for certain road construction work for the City of Rockford. Wood was one of Ind's subcontractors. During the course of the construction, Phillip Neil Burger, herein called Burger, and a passenger in his car were injured at the site of this construction. Burger and his passenger sued Ind, Wood and the City of Rockford for their injuries. A jury found Wood and the City of Rockford not guilty but returned a verdict against Ind for $12,665 and costs. Judgment was entered thereon, and Ind elected not to appeal and satisfied the judgment in full. This suit followed.
Ind here contends that it is entitled to indemnity as a matter of law against its subcontractor, Wood, in that Wood was guilty of active negligence, and that it, Ind, was guilty of only passive negligence. Ind further contends that the judgment of the trial court was contrary to the manifest weight of the evidence. Wood, in addition to denying the foregoing, contends that, by reason of the finding of the jury in the Burger case, it was not guilty of negligence, and that Ind is now estopped by such verdict from recovering against it.
In view of the contentions raised, it is necessary to review the facts giving rise to this litigation. On August 15, 1958, Ind entered into a contract with the City of Rockford to act as the general contractor for altering and improving the intersection of Sixth, State and Charles Streets in the City of Rockford. Among other things, the contract called for the construction of certain traffic islands to house traffic signals with direction controls, and to act as traffic dividers. Ind sublet the electrical work, which included the installation of traffic signals and the construction of concrete bases to support these signals, to Wood.
Ind's contract with the city provided that "The contractor shall furnish, place, and maintain, at its own expense, the necessary barricades, signs, and flares, to protect the work and the public." Both Ind and Wood were aware of this provision in Ind's contract. The particular island with which we are here concerned was about 60 feet in length. Both Ind and Wood worked on this island, Wood doing the electrical work referred to above, and Ind doing the balance of the work. On occasions, Ind and Wood were working on the island at approximately the same time. Ind constructed the six-inch curb surrounding the island and filled the center area of the island with six inches of crushed stone and completed this portion of the work about a week or ten days prior to November 7, 1958. Ind had yet to blacktop the island and did not complete this portion of the work until sometime in 1959.
Wood started its part of the job on this island in October, 1958. Its job consisted of connecting the electrical service to the traffic signal base, excavating for and constructing the concrete base, and installing the traffic signal. The concrete base was at the extreme easterly end of the island. It was approximately two feet square, extended two feet above, and approximately five feet below, the ground. The electrical service was connected and the concrete base was completed by October 20, 1958. At that time, the traffic signals had not yet been delivered to Wood for installation, and it removed its men from the job. These signals were not received by Wood until late November or early December.
During the month of October, while Wood was working on the island, it had both barricades and flares around the signal base. Cecil Wood, president of defendant, testified that whenever defendant has an excavation or an obstruction, it barricades and flares it until the obstruction is removed or the excavation filled. Wood removed the barricades on October 20, 1958, when it completed the work on the base, but it continued to provide flares on the base until the evening of November 7, 1958. It appears that Wood then stopped flaring the base as a result of a conversation on November 5th or 6th, which Cecil Wood had with the Chief Construction Inspector for the Engineering Department of the City of Rockford. Wood's testimony, which was denied by the City Inspector, was to the effect that the latter then said there was no longer any need for Wood to flare the base.
It is undisputed that Wood did not advise Ind that it was going to cease to flare the base. Likewise, there was apparently no discussion between Ind and Wood at anytime with respect to barricading or flaring the traffic signal base or the island. It does not appear that Ind at any time barricaded or flared the remainder of the island, or if it did, when it ceased to do so.
On the evening of November 7, 1958, Burger drove his car into the intersection in question from the west, striking the island with the left wheels of his car. Burger testified that his car struck the island curbing at a point fairly close to the concrete traffic signal base. A police officer investigating the accident testified that Burger's car struck the island at a point near the westerly end and that the left wheels of the car travelled approximately 58 feet along the crushed stone on the island before hitting the concrete traffic signal base. Burger did not recall whether or not he lost control of his car when it struck the island curbing. His car ultimately struck the concrete traffic signal base, turned over, and caused the injuries later complained of.
The defendant, Wood, moved to dismiss the complaint in this action on the ground that the jury's verdict in the Burger case, finding Wood not guilty of negligence, estopped Ind from now asserting that Wood could be guilty of active negligence. The trial court denied the motion and later struck the affirmative defenses based on the same grounds. The parties then stipulated that the transcript of the testimony in the Burger case be admitted as the evidence in the instant case, after which the court found the issues in favor of the defendant.
The threshold question raised by defendant is the applicability of the doctrine of estoppel by verdict. If a former judgment is raised as a complete bar against a second action, both as to those matters actually adjudicated in the first action and as to those matters which could have been raised therein, there must be, as between the actions, identity of parties, of subject matter and of cause of action. This is referred to as the doctrine of res judicata and is sometimes called estoppel by judgment. Where, as here, the parties are the same and the same subject matter is the basis for the action, but the claim or cause of action is different, the prior decision operates as an estoppel only as to those matters in issue or points controverted and is only conclusive as to those questions actually raised and determined therein. Smith v. Bishop, 26 Ill.2d 434, 436, 437, 187 N.E.2d 217 (1962); Hoffman v. Hoffman, 330 Ill. 413, 417, 161 NE 723 (1928). This is often called estoppel by verdict, the question here presented; it is but another branch of the doctrine of res judicata.
One of the prerequisites to the application of the doctrine of estoppel by verdict is that the precise fact or question asserted as having been determined and giving rise to the estoppel again be at issue. This presupposes that the fact in issue has already been litigated in the first suit, and the party whom the estoppel is to affect or against whom the estoppel is asserted must have contested this issue in the first suit. The reason for the rule is apparent. If an adverse finding on a fact is to prevent a litigant from asserting another right, he must have had an opportunity for full hearing and must have actually contested this fact when the finding was made. The obvious case for application of the doctrine is where one found guilty of negligence in a first suit, or one standing in substantially the same relationship, thereafter files a suit wherein he must prove his freedom from contributory negligence. Franciscy v. Jordan, 43 Ill. App.2d 344, 193 N.E.2d 219 (2d Dist. 1963); Stangle v. Chicago, R.I. & P.R. Co., 295 F.2d 789 (CA 7, 1961). In such a case the pleadings alone may establish that the controlling issue was necessarily raised in the first suit and that the party affected by the determination necessarily tried to prove the opposite of the ultimate determination.
The rule is not so easily applied where, as here, the present parties were coparties in the prior litigation and the pleadings in such litigation are not before the Court. However, the fact that difficulty may arise in employing the doctrine of estoppel by verdict in a case such as that before the Court, does not bar its application. Rose v. Dolejs, 7 Ill. App.2d 267, 274, 129 N.E.2d 281 (2d Dist. 1955); Franciscy v. Jordan, supra; Lawler v. Schilling, 249 Ill. App. 290, 292, (4th Dist. 1928). In such a case, whether estoppel by verdict has any application depends on whether or not the parties were adversaries as to the fact or issue determined, either by the pleadings or in fact. If the parties were not adversaries by the pleadings, it must then appear by the record of the prior suit that they were ...