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District Court of Appeal, Second District, Division 1, California.


Civ. 13469.

Decided: June 12, 1942

Romaine Hogan, of Los Angeles, for appellant. Jennings & Belcher and Louis E. Kearney, all of Los Angeles, for respondent.

This is an action for damages for personal injuries. Defendant's affirmative defense raised the issue of res judicata, which was heard and determined pursuant to the provisions of section 597, Code of Civil Procedure. Judgment was for defendant. The court found “that each and all and every allegation contained in the ‘Separate, Third and Distinct Answer and Affirmative Defense’ set forth and appearing in the answer to the ‘Amended Complaint’ are true and correct.” A motion for a new trial was denied and the appeal followed.

In the first action it is alleged: “That then and there, said defendant Great Western Packing Co. negligently and carelessly maintained and operated the said premises in that it knowingly, and as was customary, permitted Walter Lee, one of the defendants herein, to come in and upon said premises and take possession of a large parcel of meat and use certain machinery known as a trolley, which was then owned and operated by said defendant Great Western Packing Co. on said premises for the conveyance of large parcels of meat from the refrigerator to the place of delivery to the customer, and in so doing, the said defendant Wilson Lee obtained a large parcel of meat, attached to said trolley and with great speed, negligently and carelessly, pushed said meat over said trolley and caused it to collide with plaintiff herein and strike him on the left side of the face, left shoulder, and left side of his body, and knock him down and upon a handtruck * * *.”

In the instant action it is alleged: “That on the 6th day of December, 1939, at or about the hour of 9:45 A. M., defendant was the sole owner of and solely maintaining, and solely operating a public place of business at 3115 East Vernon Avenue, Los Angeles, California, for the sale of meat to the public. That plaintiff is informed and believes and therefore alleges that then and there defendant operated an overhead trolley, conveying meat from the refrigerator through the east door thereof and south on to the platform where the plaintiff and the public were purchasing meat and in so doing carelessly, negligently, and recklessly operated the said trolley so as to cause the meat, by it being conveyed, to strike plaintiff on the left side of his head and left shoulder and knock him down upon a hand–truck on the floor of the said premises.”

It is contended by appellant that the only issues tendered in the first action were: 1. Defendant negligently maintained its premises by permitting a third party, Lee, to come thereon. 2. Defendant negligently permitted Lee to take possession of a large parcel of meat on defendant's premises. 3. Defendant negligently permitted Lee to take possession of defendant's machinery for conveying meat, with which the said Lee struck the plaintiff.

In the trial of the issue of res judicata in the present action it was urged by defendant that the judgment in the previous action is a bar, not only as to the issues litigated, but also as to issues which could have been litigated. That such a rule prevails and is controlling in certain circumstances may be conceded. Whether it applies to the situation here presented, however, is open to question, for it is evident from an examination of the record, that the question as to whether defendant Great Western Packing Co. struck the defendant was not determined in the first action. In the sense that anything and everything is possible, it likewise may be conceded that it could have been determined in that action, but the test for the application of the defense of res judicata is somewhat more limited. It is contended by appellant, and which contention is sustained by the record, that at the first trial plaintiff (appellant here) sought to introduce evidence that incidentally threatened to reveal Great Western Packing Company's direct liability, but that Great Western Packing Co. successfully excluded such evidence on the ground that, as to the alleged acts of negligence on its part, the question was immaterial.

Respondent now argues that: “If plaintiff felt at the time of the trial of the previous action that he was unduly hampered by the single, adverse ruling of the court therein, as shown in Plaintiff's Exhibit ‘A’ herein, he could have sought leave during the course of the trial of such action to amend his pleadings to expand the factual allegations underlying his claimed right to recover judgment. If he was unaware, as he now claims, of all of the facts of his case in said action number 448,894, he could easily have determined them, if by no other means, by taking the depositions of the various defendants in such action prior to the time of trial. That is the usual and customary procedure and the right to take such depositions is given to the plaintiff by section 2021 of the Code of Civil Procedure.

“Again, if appellant in the previous case was injured by any adverse ruling of the court (which we do not concede), or if he suffered surprise or accident with respect to the facts at the time of trial, his remedy lay not in filing a new action but in moving for a new trial, after judgment in the previous action, upon appropriate grounds and upon proper showing under section 657 of the Code of Civil Procedure, and by appeal if relief were denied him erroneously. However, having permitted the judgment in the previous case to become final, as he did, such judgment is a bar to the present suit even if such judgment were erroneous (which we do not concede).” However, the foregoing argument is without merit, as will hereinafter appear.

It should be noted again for the sake of emphasis that in the first action the plaintiff relied on the alleged negligence of the defendant in permitting one Walter Lee to come upon the premises, etc. In other words, that the defendant only indirectly caused the injury complained of. In the second action the plaintiff alleged that the defendant actually committed the acts which directly caused the injury complained of. Appellant contends that during the first trial the court sustained a motion by the defendant Great Western Packing Co. for a directed verdict; that thereafter, as the trial progressed against another defendant and after the defendant packing company was out of the case, it developed, and plaintiff learned for the first time that it was defendant Great Western Packing Company's servants that committed the acts causing the injury complained of. Proof of the foregoing was offered by appellant upon the hearing in the present action pursuant to section 597 of the Code of Civil Procedure, but the offer of proof was refused. It should be noted here that, assuming appellant's contention in this regard to be true, a situation was there presented where the facts were peculiarly within the knowledge of defendant and the plaintiff's good faith in the premises is not disputed.

Although there appears to be considerable confusion in the many decisions on the subject, the well settled general rule appears to be that matters not in issue in the previous action are not res judicata. Section 1911 of the Code of Civil Procedure reads as follows: “That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.”

The latter provision affords a defense by way of abatement, generally characterized as an estoppel by judgment, as distinguished from the doctrine of res judicata. As to whether the first action is res judicata, generally that question may be determined by an examination of the pleadings and the judgment; whereas the latter may not be disclosed by the pleadings and the judgment, but nevertheless may be made available and possible by the introduction of extrinsic evidence drawn from the transcript of the proceedings had upon the former trial.

In a comprehensive review of the subject in 15 California Jurisprudence the following appears at page 137: “Where the circumstances are such that a judgment may not be relied upon as a bar, but is pleaded or proved merely as an estoppel as to some matter coming again in question in a subsequent action on a different claim or cause of action, the adjudication is conclusive only as to those matters which were directly in issue and in fact determined. ‘In order that a judgment in one action may constitute an estoppel against the parties thereto in a subsequent action, it must be made to appear, either upon the face of the record or by extrinsic evidence, that the identical questions involved in the issues to be tried were determined in the former action.’ ” And at page 139 thereof: “A fact which was fundamental to the judgment––without which it could not have been pronounced––is necessarily res judicata.”

Considerable confusion appears to exist by reason of the expression in some of the cases to the effect that a judgment may operate as an estoppel with respect to all matters which might have been litigated in the former action; and which would appear to extend the rule almost without limitation; but in that connection the Supreme Court has pointed out that: “The general rule that a judgment is conclusive, not only as to that which is actually determined, but also as to every other matter which the parties might have litigated in the action, is not always applicable literally. Mr. Freeman on this subject says: ‘It may be that the plaintiff might have united other causes of action with that set out in his complaint, or that the defendant might have interposed counterclaims, cross–bills, and equitable defenses, or either of the parties may have acquired new rights pending the litigation, which might, by permission of the court, have been pleaded by supplemental complaint or answer, and therefore might have been litigated in the action. But as long as those several matters are not tendered as issues in the action, they are not affected by it.’ ” (Italics included). Brown v. Brown, 170 Cal. 1, 6, 147 P. 1168, 1170.

Hardenbergh v. Bacon, 33 Cal. 356, was concerned with the question of agency. A former action was set up as a bar to the second action, in connection with which the court made the following observation, at page 375 of 33 Cal.: “It is unnecessary to enter into an analysis of the facts in that case, or to inquire into the effect of a judgment on demurrer to the complaint, when there is no issue of fact; and it need only be observed that the agency of Bacon was not alleged; and as it was not alleged it could not have been proven by the plaintiff or found by the Court. Had that fact been stated it would have essentially changed the action. In this action the agency is the leading fact, and if that fact had not been averred, or, if averred, had not been found by the Court below, the plaintiff must of necessity have failed. Although many of the facts in the former action are identical with those in this, the causes of action are not the same, and, therefore, the former recovery is no bar to this action.”

In Takekawa v. Hole, 17 Cal.App. 653, at page 655, 121 P. 296, at page 297, the court declared: “It is settled law that in a judgment of any character pleaded in bar it must appear that the parties are the same and the subject–matter the same.” And in the same case, at page 656 of 17 Cal.App., at page 297 of 121 P., the court further noted, with regard to the matter there presented, that: “The right to the relief in the second action was based upon entirely different facts from those set out in the first action.”

In Horton v. Goodenough, 184 Cal. 451, at page 460, 194 P. 34, at page 38, is to be found the following on the same subject: “If the issue, as to which estoppel is claimed, is one which had to be determined by the jury in order to arrive at the verdict they reached, the verdict and consequent judgment are a final determination of the issue binding upon the parties in all subsequent litigation. On the other hand, if the issue were not one which the jury had to decide to arrive at their verdict, as, for example, if in the other action there were other issues presented by the defendant's answer which made out a good defense even though this particular issue were determined favorably to the plaintiff's contention, then it is not possible to say that this issue has in fact been determined one way or the other, and there is no estoppel with regard to it.” And further, the court in the same action continued, at page 461 of 184 Cal., at page 38 of 194 P.: “ ‘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, upon one or more of which the judgment may have passed, without indicating which of them was thus 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.’ See, also, 1 Freeman on Judgments, §§ 276 and 276a; 23 Cyc. 1536, 15 R.C.L. 980.)”

In Southern Pacific Co. v. Edmunds, 168 Cal. 415, page 418, 143 P. 597, at page 598, the court declared: “The rule undoubtedly is that a former judgment between the parties to an action is conclusive in all subsequent actions involving the same question, not only as to the matters actually decided in the former controversy, but as to all matters belonging to the subject of the controversy and properly within the scope of the issues which also might have been raised and determined; the presumption being that all such issues were presented and decided. Bingham v. Kearney, 136 Cal. 175, 68 P. 597; Rucker v. Langford, 138 Cal. 611, 71 P. 1123. As to matters, however, which might have been litigated and decided in a former suit as within the scope of the issues, but which were not actually or expressly in issue and adjudicated, only a presumption is indulged in that they were decided. This presumption is, however, a disputable one, and may be overcome by showing that, although a particular matter was involved in the former action, it was by consent of the parties withdrawn from consideration at the trial and did not at all enter into or constitute any part of the verdict of the jury or final determination of that action. If this is the situation here, defendant certainly cannot invoke the doctrine of res adjudicata against the assertion by plaintiff in this action of a right to the credit claimed. He cannot assert the conclusiveness of the former judgment on that matter, if he consented with plaintiff that it might be withdrawn from consideration by the jury as an issue in the former action, and it was in fact withdrawn.” And again in Bank of Visalia v. Smith, 146 Cal. 398, at page 402, 81 P. 542, at page 543, is to be found: “A finding made by a court of a fact upon which there is no issue in the case before it, and which does not enter into or form the basis of the judgment rendered in the action, is not admissible in another action between the same parties as evidence of that fact, either as an admission or by way of estoppel. House v. Lockwood, 137 N.Y. 259, 33 N.E. 595; Black on Judgments, § 619; Freeman on Judgments, § 251. It is the judgment, and not the preliminary determination of the court or jury, which creates the estoppel. Only that which is the matter directly adjudged, or which appears upon the face of the judgment to have been so adjudged, is conclusive between the parties. Code Civ.Proc., §§ 1908, 1911.”

Purcell v. Victor Power & Min. Co., 29 Cal.App. 504, at page 510, 156 P. 1009, at page 1011, concerned the question of a special defense by way of estoppel and there the court declared: “It is elementary, and indeed necessarily, true that the force of an estoppel by judgment resides in the judgment itself. It is not, in other words, the finding of the court or the verdict of the jury which concludes the parties, but the judgment entered thereon. See 23 Cyc. 1218, and cases named in the footnote.

“In Foster v. The Richard Busteed, 100 Mass. 409, 1 Am.Rep. 125, the rule of res adjudicata is stated as follows: ‘To be a bar to future proceedings it must appear that the former judgment necessarily involved the determination of the same fact, to prove or disprove which it is pleaded or introduced in evidence. It is not enough that the question was one of the issues in the former suit. It must appear to have been precisely determined.’ [cases cited.]”

In an earlier case the Supreme Court noted that, “A record is not conclusive as to the truth of any allegations which were not material and traversable; but as to things material and traversable it is conclusive and final.” Wixson v. Devine, 67 Cal. 341, at page 345, 7 P. 776, at page 778.

Referring again to the confusion that exists by reason of the use of the expression, what “might have been litigated,” the Supreme Court in that regard has declared as follows: “ ‘* * * The general expression, often found in the reports, that a judgment is conclusive of every matter which the parties might have litigated in the action, is misleading. What is really meant by this expression is that a judgment is conclusive upon the issues tendered by the plaintiff's complaint. It may be that the plaintiff might have united other causes of action with that set out in his complaint, or that the defendant might have interposed counterclaims, cross–bills, and equitable defenses, or either of the parties may have acquired new rights pending the litigation, which might, by permission of the court, have been pleaded by supplemental complaint or answer, and therefore might have been litigated in the action. But, as long as these several matters are not tendered as issues in the action, they are not affected by it.’ ” Metropolis, etc., Sav. Bank v. Barnet, 165 Cal. 449, at page 453, 132 P. 833, at page 835, quoting from Freeman on Judgments, 4th Edition, section 249. To the same effect, see Concannon v. Smith, 134 Cal. 14, at page 17, 66 P. 40, at page 41 wherein the court refers to the quotation from Freeman on Judgments to the effect that an adjudication is final and conclusive not only as to matters actually litigated but also as to every other matter which the parties “might have litigated and have had decided as incident to or essentially connected with the subject–matter of the litigation,” and states that this passage is quoted by the learned author from Harris v. Harris, 36 Barb., N.Y., 88, but notes also that the same learned author has qualified the statement by the quotation already given above, taken from Metropolis, etc., Sav. Bank v. Barnet, supra, to the effect that such a statement is misleading. See, also, Maddux v. County Bank, 129 Cal. 665, 62 P. 264, 79 Am.St.Rep. 143.

From a consideration of the foregoing authorities it is evident that the literal application of the expression, “what might or could have been litigated in the former action,” is not the test as to what constitutes res judicata, nor as to what amounts to and operates as an estoppel. And that the true rule, as expressed and sustained by the foregoing authorities, is based on sound reason there can be no question, for in the absence of the limitations therein referred to, the scope of the doctrine is extended to the realms of speculation. The following authorities relied on by respondent are not in conflict with the views herein expressed: Caminetti v. Board of Trustees, 1 Cal.2d 354, at page 356, 34 P.2d 1021; Price v. Sixth District Agricultural Association, 201 Cal. 502, at page 511, 258 P. 387; Sutphin v. Speik, 15 Cal.2d 195, at page 202, 99 P.2d 652, 101 P.2d 497; Sullivan v. Triunfo Gold & Silver Mining Co., 39 Cal. 459, at page 464; Hellman v. Los Angeles Railway Corp., 135 Cal.App. 627, at page 631, 27 P.2d 946, 28 P.2d 384; Lamb v. Wahlenmaier, 144 Cal. 91, at page 95, 77 P. 765, 103 Am.St.Rep. 66; Triano v. F. E. Booth & Co., Inc., 120 Cal.App. 345, 8 P.2d 174.

The lack of uniformity arising over the doctrine of res judicata, as applied to “what might have been or could have been decided” in a prior action, appears in part to result from a failure to distinguish between what are merely additional probative facts and what constitutes a new issue or issues. This distinction is clearly pointed out in Sullivan v. Triunfo Gold & Silver Mining Co., supra, 39 Cal. at page 464, a case having to do with the legality of a corporate assessment. It is there stated: “* * * the question of the legality of the first assessment mentioned in the complaint, the one which was levied July 6, 1865, was considered [in a prior action], and it was held to be legal; and it is claimed by the defendants that that question is res adjudicata by virtue of that decision. The plaintiff insists, that in this case, he has stated a new fact, which did not appear in the former action; that it was not averred in the complaint in that case, but in this, that the assessment was not levied for the purpose of paying the proper and legal expenses of the corporation. It is averred, in each case, that the assessment was illegal and invalid, and the ground upon which the assessment was contested in the former case was, that it was levied for the purpose of paying debts contracted by the trustees, exceeding the limit prescribed by the by–laws of the company. This is an objection to the assessment, or a fact tending to show the ultimate fact in issue, the illegality of the assessment. What the plaintiff now claims as a new fact, is but a new objection to the assessment, or, at most, another probative fact tending to prove the ultimate fact of illegality. The fact affirmed on the one side, and denied on the other, was that the assessment was illegal; its illegality was the point of the issue. The issue might depend upon one or more than one fact, and if upon several facts, it was incumbent on the party who would claim their benefit, to present them in support of the issue.” (Italics added.)

The distinction between probative facts and new issues is even more clearly drawn through applying a practical test. If a fact sought to be introduced in a subsequent action would have been material evidence upon the issues presented in a prior action, then that fact is merely of probative value, evidence which should have been presented in support of the issue in the former action. However, if such a fact would not have been material upon the issues set forth in a prior action, and yet is material to the issues in a subsequent action, it is clear that the issues framed in the second action are different from those set forth in the former.

Unqualified language appears to have crept into some of the decisions, which, although only a partial statement of the rule but nevertheless applicable to the facts and questions under consideration therein, is misleading, as certain decisions referred to herein have indicated. Mr. Justice Field in Cromwell v. Sac County, 94 U.S. 351, 352, 24 L.Ed. 195, used the following language on the subject of res judicata:

“In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defences actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defences were not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law are concerned, as though the defences never existed. The language, therefore, which is so often used, that a judgment estops not only as to every ground of recovery or defence actually presented in the action, but also as to every ground which might have been presented, is strictly accurate, when applied to the demand or claim in controversy. Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever.

“But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”

Returning now to an analysis of the record herein, it is obvious that the basis of liability for the cause of action as alleged in the second action is not the same as that relied upon in the first action. The proof required in each is entirely different. Hence on the face of the pleadings and the judgment the defense of res judicata is unavailing. Nor does respondent's separate and affirmative defense in the second action allege anything to the contrary, for the sole allegation therein relied on is, “that the subject matter of said action so filed and decided was identical with the subject matter of this action so far as this defendant and plaintiff herein are concerned; that the issues in said previously tried action are identical with the issues of this action so far as the parties named are herein concerned”. Such allegation is a mere conclusion.

Nor is the basis of the cause of action in the second action a matter “within the scope of the issues” relied upon in the first action, that raises the presumption referred to in Southern Pacific Co. v. Edmunds, supra.

At the trial of the within action pursuant to section 597, Code of Civil Procedure, no effort was made by respondent to sustain the burden of proof imposed by the separate and affirmative defense set forth in the answer. § 1981, Code Civ.Proc. The complaint and judgment in the former action were alleged as a bar under the doctrine of res judicata. No facts were alleged by way of estoppel. Nor does the record reveal any showing made by respondent at the trial in this regard.

In the first action the issue was the liability of defendant packing company for negligently permitting a third party to come upon its premises and handle its overhead meat trolley. Upon this issue evidence of negligence of defendant's servants in handling the meat on the trolley was immaterial. The second action involved the issue of the negligence of defendant's servants as imputed to defendant packing company; and upon this issue the evidence of the negligence of defendant's servants in handling the meat was clearly material. The evidence in one case is not merely probative evidence of a fact material to the other. The cause of action in the second case is thus demonstrated to be different from that in the first case. And the situation here presented serves as an illustration of what was meant by the statement found in Freeman on Judgments, hereinbefore referred to, that the general expression, to the effect that a judgment is conclusive of all matters which might have been litigated, is misleading.

It follows, therefore, that the trial court's finding in favor of respondent upon respondent's affirmative defense of res judicata is not supported by the record and is unfounded. For the foregoing reasons, the judgment is reversed and the cause remanded for trial upon the issues joined by the pleadings.

DORAN, Justice.

YORK, P. J., and WHITE, J., concurred.