Vol. IV.]

CROMWELL v. COUNTY OF SAC.

[No. 6.

may have been that the plaintiffs abandoned their special counts and recovered their verdict upon the general counts. The judgment rendered in that suit, while it remains in force, and for the purpose of maintaining its validity, is conclusive of all the facts properly pleaded by the plaintiffs; but when it is presented as testimony in another suit, the inquiry is competent whether the same issue has been tried and settled by it.

It is not believed that there are any cases going to the extent that because in the prior action a different question from that actually determined might have arisen and been litigated, therefore such possible ques

tion is to be considered as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions. Or principle a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action.

Various considerations, other than the actual merits, may govern a party in bringing forward grounds of recovery or defence in one action, which may not exist in another action upon a different demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own situation at the time. A party acting upon considerations like these ought not to be precluded from contesting in a subsequent action other demands arising out of the same transaction. A judgment by default only admits for the purpose of the action the legality of the demand or claim in suit; it does not make the allegations of the declaration or complaint evidence in an action upon a different claim. The declaration may contain different statements of the cause of action in different counts. It could hardly be pretended that a judgment by default in such a case would make the several statements evidence in any other proceeding. Boyleau v. Rutlin, 2 Excheq. 665, 681, and Hughes v. Alexander, 5 Duer, 493.

The case of Howlett v. Tarte, 10 C. B. N. S. 813, supports this view. That was an action for rent under a building agreement. The defendant pleaded a subsequent agreement changing the tenancy into one from year to year, and its determination by notice to quit before the time for which the rent sued for was alleged to have accrued. The plaintiff replied that he had recovered a judgment in a former action against the defendant for rent under the same agreement, which had accrued after the alleged determination of the tenancy, in which action the defendant did not set up the defence pleaded in the second action. On demurrer the replication, after full argument, was held bad. In deciding the case Mr. Justice Willes said: "It is quite right that a defendant should be estopped from setting up in the same action a defence which he might have pleaded, but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action. . . . . I think we should do wrong to favor the introduction of this new device into the law." Mr. Justice Byles said: "It is plain that there is no authority for saying that the defendant is precluded from setting up this defence." Mr. Justice Keating said: "This is an

Vol. IV.]

CROMWELL V. COUNTY OF SAC.

[No. 6.

attempt on the part of the plaintiff to extend the doctrine of estoppel far beyond what any of the authorities warrant."

The language of the vice-chancellor, in the case of Henderson v. Henderson, 3 Hare, 100, 115, is sometimes cited as expressing a different opinion, but upon examining the facts of that case it will appear that the language used in no respect conflicts with the doctrine we have stated. In that case a bill had been filed in the supreme court of Newfoundland by the next of kin of an intestate against A. and others for an account of an estate and of certain partnership transactions. A decree was rendered against A., upon which the next of kin brought actions in England. A. then filed a bill there against the next of kin and personal representative of the intestate, stating that the intestate's estate was indebted to him, and alleging various errors and irregularities in the proceedings in the supreme court of the island, and praying that the estate of the intestate might be administered, the partnership accounts taken, and the amount of the debt due to him ascertained and paid. A demurrer to the bill was allowed for want of equity, on the ground that the whole of the matters were in question between the parties, and might properly have been the subject of adjudication in the suit before that court. It was with reference to the necessity of having the subject of particular litigation as a whole at once before the court and not by piecemeal, that the vicechancellor said: "In trying this question, I believe I state the rule of court correctly, that when a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation, in respect of matter which might have been brought forward as part of the subject in controversy, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of the case. The plea of res adjudicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion, and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

There is nothing in this language, applied to the facts of the case, which gives support to the doctrine that whenever in one action a party might have brought forward a particular ground of recovery or defence, and neglected to do so, he is in a subsequent suit between the same parties upon a different cause of action precluded from availing himself of such ground.

If now we consider the main question presented for our determination by the light of the views thus expressed and the authorities cited, its solution will not be difficult. It appears from the findings in the original action of Smith that the county of Sac, by a vote of its people, authorized the issue of bonds to the amount of ten thousand dollars for the erection of a court-house; that bonds to that amount were issued by the county judge and were delivered to one Meserey, with whom he had made a contract for the erection of the court-house; that immediately upon receipt of the bonds, the contractor gave one of them as a gratuity to the

Vol. IV.]

CROMWELL v. COUNTY OF SAC.

[No. 6.

county judge; and that the court-house was never constructed by the 'contractor, or by any other person pursuant to the contract. It also appears that the plaintiff had become before their maturity the holder of twentyfive coupons which had been attached to the bonds; but there was no finding that he had ever given any value for them. The court below held upon these findings that the bonds were void as against the county, and gave judgment accordingly. The case coming here on writ of error, this court held that the facts disclosed by the findings were sufficient evidence of fraud and illegality in the inception of the bonds as to call upon the holder to show that he had given value for the coupons, and not having done so, the judgment was affirmed. Reading the record of the lower court by the opinion and judgment of this court, it must be considered that the matters adjudged in that case were these: that the bonds were void as against the county in the hands of parties who did not acquire them before maturity and give value for them; and that the plaintiff, not having proved that he gave such value, was not entitled to recover upon the coupons. Whatever illegality or fraud there was in the issue and delivery to the contractor of the bonds, affected equally the coupons for interest attached to them. The finding and judgment upon the invalidity of the bonds as against the county must be held to estop the plaintiff here from averring to the contrary. But as the bonds were negotiable instruments, and their issue was authorized by a vote of the county, and they recite on their face a compliance with the law providing for their issue, they would be held as valid obligations against the county in the hands of a bona fide holder taking them for value before maturity, according to repeated decisions of this court upon the character of such obligations. If, therefore, the plaintiff received the bond and coupons in suit before maturity for value, as he offered to prove, he should have been permitted to show that fact. There was nothing adjudged in the former action in the finding that the plaintiff had not made such proof in that case which can preclude the present plaintiff from making such proof here. The fact that a party may not have shown that he gave value for one bond or coupon is not even presumptive, much less conclusive, evidence that he may not have given value for another and different bond or coupon. The exclusion of the evidence offered by the plaintiff was erroneous, and for the ruling of the court in that respect the judgment must be reversed and a new trial had.

Upon the second question presented we think the court below ruled correctly. Evidence showing that the action of Smith was brought for the sole use and benefit of the present plaintiff was, in our judgment, admissible. The finding that Smith was the holder and owner of the coupons in suit went only to this extent, that he held the legal title to them, which was sufficient for the purpose of the action, and was not inconsistent with an equitable and beneficial interest in another.

Judgment reversed and cause remanded for a new trial.

1. Whether it is due and proper care to attempt to remove a person from a street railroad car, while the same is in motion, is a question of fact for the jury, and not of law for the court.

2. If the driver of such car has authority to collect fare, and to put a person off for its non-payment, his master will be liable, if injury results from excessive force and violence in so doing, or if, as driver, he is guilty of carelessness or negligence in keeping the car in motion, by reason of which the person is run over and injured. 3. Where the evidence of the plaintiff tends to show want of care on the part of the driver of a street car in keeping the car in motion, while he is putting a person off for non-payment of fare, by reason of which the person is run over by the car and injured, it is error, in such case, to instruct the jury that the liability of the railroad company depends solely on the question whether the driver acted within the scope of his employment in attempting to collect fare, and in putting the person off for refusal to pay.

4. Where the injury complained of results from want of care in the driver in running of the car, and not from the force and violence used in ejecting a person from the car, the company would be liable, whether the driver had or had not authority to collect

fare.

ERROR to the superior court of Cincinnati.

The facts of this case will be found in the opinion of the court.

Thomas Powell, for plaintiff in error. 1. The driver had control over the front platform of the car, was acting within the scope of his authority, and the company is responsible for his acts while he is on the platform in the discharge of his duty. Drew v. Sixth Avenue R. R. Co. 26 N. Y. 49; 3 Keyes, 428; 17 N. Y. 362; 8 Bosw. 305; 38 N. Y. 131, affirming 10 Bosw. 260.

2. The court erred in qualifying the first instruction asked by plaintiff and in giving the charge as modified, because it misled the jury. Walker v. Stetson, 14 Ohio St. 89; Bain v. Wilson, 10 Ohio St. 14; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 134; P., Ft. W. & C. R. R. Co. v. Slusser, Ib. 161.

If the act of the driver was wilful or malicious the company is liable. A. & G. W. R. R. Co. v. Dunn, 19 Ohio St. 170; Hopkins v. A. & St. L. R. R. 36 N. H. 9; 8 Bosw. 305; 22 N. Y. 361; 17 N. Y. 362; 1 East, 106; 1 Hill, 480; 7 Com. B. (N. S.) 290; 54 Pa. St. 315; 19 Ohio St. 11; 42 Pa. St. 365; 3 Cush. 300; 4 Gray, 465.

3. The court erred in refusing to give the second instruction to the jury asked by plaintiff. 19 Ohio St. 153; 21 Ohio St. 524; 70 Pa. St. 119; 21 How. 202; 62 Ill. 238.

4. The court erred in refusing to give the third instruction asked by the plaintiff. The qualification misled the jury. 10 Ohio St. 14; 14 Ohio St. 89; 107 Mass. 108.

E. A. Ferguson, for defendant in error, claimed there was no error in qualifying the first and third instructions asked by plaintiff, nor in refus

Vol. IV.]

HEALEY V. THE CITY PASSENGER RAILROAD Co.

[No. 6.

ing the second. Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 131; Passenger R. R. Co. v. Young, 21 Ohio St. 518; Steamboat Ocean v. Marshall, 11 Ohio St. 382.

JOHNSON, J. This action is brought by the plaintiff, to recover damages, alleged to have been caused by the want of proper care and skill of the agents and servants of the defendant, a company owning and operating a street railroad in Cincinnati. It is averred that the plaintiff was a passenger to be carried from Fifth Street near Vine to the corner of Fourth and Main streets, for a certain hire or reward, and while being so carried, the defendant, by its servants and agents, so carelessly, negligently, and unskilfully conducted the running of the car, that, without fault on his part, the plaintiff was thrown from the car to the ground, and the wheels of the car ran over and injured him.

The answer denies all the allegations of the petition, except that the defendant is an incorporated company, and the owner of the railroad.

The case was tried to a jury at special term, and verdict rendered for defendant. On motion for a new trial, which was overruled, a bill of exceptions was taken, and the case went to the general term on error, when the judgment was affirmed.

Did the superior court err in affirming this judgment? The bill of exceptions shows several errors were relied on below, part only of which need be noticed.

The plaintiff, to maintain the issue on his part, offered evidence tending to show that the plaintiff was twelve years old, and was, at the time engaged in selling newspapers along the streets of Cincinnati; that it was customary for the newsboys to get on the cars to sell papers, and ride free of charge; that on' the morning when this injury happened, he had got on the front platform of a car going east along Fifth Street, and was about to enter the car, when the driver demanded his fare; that plaintiff told him he had none; that the driver then ordered him off, and then shoved or threw him off, while the horses were going in a trot, and the wheels passed over him and caused the injuries complained of.

The defendant's evidence tended to show that the driver did not demand fare of the plaintiff, or throw or shove him off; that the boy got on the front platform where there was no one but the driver, went to the door and called "Papers," then returned to the steps, suspended himself by the iron rod, and in some way unknown to the driver, while he was engaged in driving, and without his fault, the boy fell off and was run over, before it was known by the driver, or the conductor, who was on the rear platform, and that they knew nothing of the boy's presence until after he was hurt.

Counsel for plaintiff requested the following charges to the jury:

"If the jury believe, from the testimony, that the plaintiff, James Healey, got upon the street car of the defendant for the purpose of selling newspapers, and after he was on the front platform of the car where the driver was, and was about to enter the car without paying his fare, and that the car driver used excessive force and violence to put him off the car, or throw him off while the car was in motion, in such case the defendant would be liable for an injury to the plaintiff which was the result of such force and violence."