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District Court of Appeal, Fourth District, California.

HALL et al. v. COYLE et al.

Civ. 4243.

Decided: August 29, 1951

Raymond F. Feist, Oceanside, and Henry F. Walker, Los Angeles, for appellant. Charles B. Provence and Brooks Crabtree, San Diego, for respondents.

Defendant Clyde Truss, individually and doing business as Ramona Liquid Gas and Appliance Company, appeals from a judgment in favor of plaintiffs in an action for damages occasioned by the negligence of defendants in the handling of butane gas. It was alleged in the complaint, filed July 28, 1948, that plaintiffs were the owners of a house and contents, located in San Diego county; that appellant was in the business of supplying butane gas to the public for use as a household fuel; that on October 28, 1947, appellant, through an employee, was in the act of delivering butane gas to plaintiffs' residence when the employee negligently and carelessly transferred butane gas to containers on plaintiffs' premises; that by reason of the negligence of defendants' employee and as a proximate result thereof, plaintiffs' house and contents were destroyed by fire.

The trial court gave judgment for plaintiffs in the sum of $7,000 and no question is here raised concerning negligence, contributory negligence or proximate cause. The controversy is principally as to the effect of a judgment rendered in a prior action between the parties, pleaded as a bar to the present action.

The record shows that on December 5, 1947, plaintiff Kenneth W. Hall filed an action entitled ‘Complaint on Express Contract’ against appellant and others in which it was alleged, among other things, that plaintiff's house and contents were of a reasonable value of $7,000; that on October 28, 1947, defendants negligently and carelessly transferred butane gas into said house; that by reason thereof and as a direct and proximate result of such negligence, said house and contents were destroyed by fire, to plaintiff's damage in excess of $4,000; that defendants, in consideration of such damage and destruction, promised to pay $4,000 in settlement of the claims arising from said negligence, which promise and offer was accepted; that demand had been made for the sum of $4,000 from defendants, who failed to pay the same or any part thereof. The prayer was for $4,000, with interest, for costs and for ‘such other relief as to the court seems just.’

Defendants answered and denied the allegation of negligence, admitted that defendants were in the business of supplying butane gas to the public, admitted the delivery of the gas and the occurrence of the fire and denied the allegation that ‘the defendants in consideration of such damage and destruction promised to pay plaintiff at once the sum of $4,000 in full and complete settlement of all of plaintiff's claim for damages by reason of such negligence, which promise and offer the plaintiff accepted forthwith.’ It was admitted that a demand for $4,000 had been made, and contributory negligence was pleaded as an affirmative defense.

Trial was had without a jury and at the conclusion of plaintiff's case, the trial court granted defendants' motion for a nonsuit since it appeared that the person making the promise to pay had no authority to bind the partnership. Judgment was thereupon entered against the plaintiff. No appeal was taken therefrom and said judgment became and is final.

In the instant action, the defendants, by answer, alleged that plaintiff, in the 1947 action, sought to recover compensation from these defendants for the loss alleged to have been suffered by the plaintiff by reason of said fire; ‘that said cause came on regularly for trial; that thereafter, on or about the 29th day of July, 1948, judgment was entered in said cause, adjudicating the merits thereof in favor of these defendants, and against the plaintiff, and that such judgment has become final and constitutes a bar to any and all proceedings in the instant cause.’

Appellant's contentions are that the judgment of nonsuit constitutes an adjudication on the merits; that the issues of negligence, proximate cause and damages were before the court in the former action and the judgment of nonsuit is a bar to the instant cause; and that the prior action constituted an election of remedy which debars the maintenance of the present action.

Section 581c of the Code of Civil Procedure, as amended in 1947, provides that if the motion for judgment of nonsuit is granted ‘unless the court in its order for judgment of nonsuit otherwise specifies, such judgment operates as an adjudication upon the merits.’ In the 1947 action it was ‘adjudged and decreed that the motion of defendants for a nonsuit be and the same is hereby granted.’ While the trial judge therein, judging from his remarks made upon the submission of the case, evidently believed that a tort liability existed in favor of plaintiff and that it was not too late to file an action therefor, he apparently based his judgment of nonsuit on a failure of plaintiff to establish liability against the defendants on the contract set forth in the complaint. The court failed, however, to specify in his judgment that it was based only on the cause of action on contract and that the tort liability was not passed upon.

In May of 1949, plaintiff filed a motion for an order ‘correcting a mistake in the judgment’ and to modify it so as to include the following words: ‘This judgment of nonsuit is not an adjudication upon the merits.’ This motion was denied and no appeal was taken from the order of denial.

The remarks of the trial court, the testimony in the 1947 action, and the plaintiff's complaint filed therein indicate that the action was tried on the theory of a contract liability, and that the tort liability was not passed upon by the trial court. Plaintiff had the right to allege various counts in the complaint, even though inconsistent, Goldwater v. Oltman, 210 Cal. 408, 423, 292 P. 624, 71 A.L.R. 871, and the general rule is that a judgment in a prior action between the same parties on the identical cause of action is res judicata, and a bar to a second suit thereon, not only as to issues actually determined therein but also as to issues necessarily involved, and even though the causes of action be different, the prior determination of an issue is conclusive in a subsequent suit between the same parties as to that issue and every matter which might have been urged to sustain or defeat its determination. Krier v. Krier, 28 Cal.2d 841, 843, 172 P.2d 681. It is also the rule that only that is adjudged in a former judgment which appears upon its face to have been adjudged or which was necessarily included therein or necessary thereto, Code of Civ.Proc., sec. 1911, and when it affirmatively appears that an issue was not determined by the judgment, it is not res judicata upon that issue. Stark v. Coker, 20 Cal.2d 839, 843, 129 P.2d 390; Estate of Williams, 36 Cal.2d 289, 292, 223 P.2d 248.

The uncontradicted evidence in the instant case is that the tort liability of the defendants was not actually determined in the 1947 action. The trial court's findings that the 1947 judgment does not constitute a bar to any of the proceedings in the instant cause nor to the cause of action contained in the complaint herein and that the issues involved in the present action were not involved and were not tried or determined in the former action are supported by substantial evidence and are binding upon us. In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689.

It is argued that since the plaintiff procured an attachment in the original action, he was thereafter estopped to pursue his remedy in tort and the case of Steiner v. Rowley, 35 Cal.2d 713, 720, 221 P.2d 9 is cited as authority for this contention. However, the pleading in the 1947 action contained only one cause of action which was primarily based upon the negligence of the defendants, and while the complaint contained allegations that the defendants promised to pay the plaintiff the sum of $4,000 for the damage occasioned and the prayer was for that sum, the court held that a cause of action on contract was not stated or proved, as is evidenced by the granting of a nonsuit. The judgment of nonsuit having been granted on the theory that no contractual liability was alleged or proven, was not a determination of liability for the tort and the trial court so stated. It is apparent from the record that the plaintiff had but one remedy available to him and mistakenly believed that a cause of action existed by reason of the alleged promises of one member of the limited partnership to pay the damages occasioned by the tort.

As is said in 30 Am.Jur. page 946, sec. 210: ‘The doctrine of res judicata is not available as a bar to a subsequent action if the judgment in the former action was rendered because of a misconception of the remedy available or of the proper form of proceeding. In such situation, the plaintiff is entitled to bring the proper proceeding to enforce his cause of action.’

In Miller v. Ambassador Park Syndicate, 121 Cal.App. 92, 9 P.2d 267, in an action on a promissory note, where the defense of res judicata was presented, defendants claimed that plaintiff was precluded from maintaining the action because a former action between the same parties involving identical subject matter was dismissed on the merits. The court there said, 121 Cal.App. at pages 99–100, 9 P.2d at page 269: ‘An examination of the complaint in each of the two actions reveals the fact that the former action was based upon alleged tort, and that the plaintiff therein sought damages against the several defendants therein because of their alleged fraudulent acts as against the plaintiff; whereas the cause in the instant action arises from the alleged breach by the defendants of an express contract, to wit, their failure to pay the promissory note when due. Although a mere difference in the form of the action will not necessarily prevent a bar, if the cause of action is the same and ‘the same evidence will support both actions' (Taylor v. Castle. 42 Cal. 367, 372), the principle of law is well established that, ‘if the plaintiff has mistaken his legal remedy or the proper form of action, and the judgment goes against him for that reason, it is no bar to a second action rightly brought.’ 15 Cal.Jur. 173, and cases there cited.'

In Williams v. MacDonald, 180 Cal. 546, 547, 182 P. 29, the court said: ‘A judgment in order to operate strictly as a bar to a subsequent action must have gone to the merits of the subsequent action. This is the full extent of the doctrine of such cases as Taylor v. Castle, 42 Cal. 367; South San Bernardino, etc., Co. v. San Bernardino [Nat.] Bank, 127 Cal. 245, 59 P. 699, and Heilig v. Parlin, 134 Cal. 99, 66 P. 186, cited on behalf of the plaintiff. If, for example, the plaintiff has mistaken his legal remedy or the proper form of action, and judgment goes against him for that reason, the judgment is no bar to a second action rightly brought.’

As was said in Waters v. Woods, 5 Cal.App.2d 483, 489, 42 P.2d 1072, 1075, in an action for rescission and/or damages: ‘Respondent urges that since the case was tried on the theory that rescission was the only relief open to plaintiffs, they made an irrevocable election of remedies and must accept the consequences of such choice. It is true that where the law allows two distinct modes of procedure on the same state of facts, one of which is inconsistent with the other, a party is compelled to choose between them. This is said to be an application or extension of the doctrine of estoppel. Mailhes v. Investors Syndicate, 220 Cal. 735, 32 P.2d 610. The rule, however, is grounded on the assumption that there are two or more procedural courses actually open to the party; if eventually it develops that such party misconceived his remedy and the one on which he expected to rely had never been available, the estoppel does not apply. The rule is well stated in the case of Agar v. Winslow, 123 Cal. 587, 591, 56 P. 422, 423, 69 Am.St.Rep. 84: “Where there exists an election between inconsistent remedies, the party is confined to the remedy which he first prefers and adopts.’ Before one can exercise an option or preference between two things, both these things must have an actual existence. * * * If plaintiff was mistaken, and undertook to avail himself of a remedy that he was never entitled to, this does not prevent him from subsequently availing himself of a remedy that he is entitled to under the facts of the case.' See, also, Restatement of the Law of Contracts, § 383 [vol. 2, p. 717]; 20 Corpus Jur. 21; 9 R.C.L. 962.'

In the instant case the evidence is that the plaintiffs could not elect between two remedies because the only one available to them was an action in tort. The trial of the instant action was the only adjudication on the merits of plaintiffs cause of action for negligence. The sufficiency of the evidence to sustain the court's findings with respect to the negligence of the defendant and his responsibility therefor is not here questioned, and the circumstances presented by the record do not justify a conclusion that the plaintiffs were estopped to maintain the present action because an attachment was issued in the former suit.

Judgment affirmed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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