694
. I:.
-1,
J'EDEBALt BERORTEB,
,vol. 62.
/'
defendant responsible.. That. there are many others, not paJ.'ties"equally ;interested, only ,comes to iVhis,:that the defendant maybe with many' 'suits unless,· in the· event of an adverse· decision, it voluntarily restores the excessive charge it will have received. On: :the other hand, if· a prelilninary injunction be now granted, it would likely stand until final hearing in the /ilupreme'.court. In the meantime, the defendant would lose a sum· stated .in, the sworn answer as amounting, on business originatlng in Oincinnati alone, of upwards of $100,000 per year. A 10l).gadherence to a, lower schedule of rates would render it (liffiGlllt,o restore the oldl'ates maintained, with occasional exceptionsJdor.years. In addition, theeffe<Jt of enforcing the rates from. Ciilcinnati to the desiguated points would inVOlve a readjustment from dUes contiguous to Cincin:na'ti, and having commerce in the ,.same southern ,territory. The 'balance of inconvenience seeIl).i$, to, be on the side of the defendant. For these reasons, it seema, ,to; me that a' preliminary injunction ought not to issue, and thattberestraining order should be dissolved. . no opinion nponany of the questions involving the merits. .AnN reasonableoroer tending to speedy preparation and trial'of"thismatter will be made on application. In the,meantime, hils ol1dered that plaintiff file replication to the answer; and that the cause then stand at issue. CITY OF· NORTH MUSKEGON' Gourt of 1.
v.
Sixth .CirclJ.!t.
No. 170. , .. Judgment temiered aga!nSt"a plaintiff on .demurrer to his declaration, because,{it,does'not essential to a recovery;' is no bar to a second sUit,bYliil;ll on the same cause· of action, wherein the declaration, in stating the cause of action; avers the fact· previously omitted, Goodrich iV, 'Chicago, 5 Wall. 556. and Alley v. Nott, 4 Sup. Ct. 495, 111 U. S. 472nHflt1nguished.·· ' ., , RES JrlDtcATA.:"":JUDGMENT,'()* fblllM:URRER.
.,
'..
2.' ABATEME1N'T4>FoRMER . TO PLEAD. iPendeD,cY of ,a formel1 suit fpr the same cause of action can be availed: of as a only by plea Wabatement. ' . . 8. SAME-STATll:, AND' Fll:Dll:RALQOl,JRTS.
Pendency of the same aetlpn in a state court is not :a good plea, even , in'abatement; in a federal· court, though it has concurrent territorial juris, diction with .the s t i J t e o o u r t . ·
, .
'
This writ of, error tbe judgIDent of the clrcllit conrt for the western district of. Michigan. Bridget Clark, the. plaintiff helow, l\. citizen of the state of' York, filed :her aeclaration setting forth a plea of trespass on the: caae· agamst: thel city· of North MUskegoh,' a municipal cot·,
)Ii Error States for the Western Sputhe,rn DiVision. , , District of ,Tllis, .wag' a:n .!lction by. against (he city of North The jury found ,f@r plaintiff, and Muskegon illdgm,ent ,W.ll-iIitiff wl:\S on the verdict. Defendant brought errol'.: " .,' , , ' .. .'
crTY OF.NORTH MUSKEGONV. CLARK.
695
poration existing under the laws of Michigan, which, since the acts complained of, had ceased to be a village, and had become a city. The declaration averred that the of the village extended over divers pubUc ways, highways, and streets, and especially over a certain public hig'lW;ly or street li::nown as Maple street. and over the brid/{es, sidewalks, crosswalks, and culverts on the same; that the said Maple street, for more than 10 years before the committing of the grievance in the declaration thereinafter set forth, had been, and was at the time of the filing of the declaration, a public highway and street of the village, and open to public travel: that It was the duty of the village, by reason of Act No. 264 of the Public Acts of the State of Michigan, passed at the regular session of 1887, al1d approved ,June 27, 1887, to li::eep and maintain the sidewalk upon said street in reasonable repair, so that it should be reasonably safe for public travel; that, in violation of this duty, the village, at a point on the street in front of tlle premises of one Misner, carelessly and negligently permitted the s(lid walli:: to become greatly out of repair, and the boards or planks to become so loose that it was in a dangerous condition for persons to pass and repass upon it, of all of which the village had had notice for a year preceding the 8th day of October, 1890, upon which day the plaintiff, wllile proceeding along the sidewall, of said Maple street with due care and caution, was tripped by the loose planks or boards in said sidewalk, was thrown to the ground with force and violencc, and the bones of her left ankle and leg were broken. 1'01' this injury she asked damages. Tile defendant pleaded the general issue, and in its bill of particulars gave notice that it would give in evidence the fact that the plaintiff had sued the defendant, under its then corporate name of the village of Muskegon, in the circuit court of the county of Muskegon, in the state of Michigan, in a certain plea of trespass on the case for committing the same supposed wrongs and injuries (if any such there were) In the plaintiff's declaration mentioned; that thereafter the defendant demurred to the declaration, and, the issue corning on to be tried, the court adjudged that the matters contained in the declaration were not sufficient in law for the plaintiff to haye the action against the defendant, and sustained the demurrer; that the court ordered that, upon payment by the plaintiff to defC'lldant of $10 as attorney's fee, within 20 days thereafter, the plaintiff might have leave to file an amended declaration, to which the defendant should plead, within the rules of practice of the court, but otherwise it was considered by the court that the plaintiff should take nothing by her declaration, and that the defendant should recoyer, against the plaintiff, its costs, and have execution therefor; that the plaintiff did not file an amended declaration, and did not pay the attorney's fee required, and that the judgment of the circuit court for the county of Muskegon against the plaintiff, and in favor of the defendant, remained in full force and effect, unreversed. No. 264 of the Public Acts of Michigan for 1887 imposes a liability upon townships, villages, cities, and other municipal corporations for bodily injury sustained by any person by reason of the neglect of such municipal corporation to keep in repair its pUblic highways, streets, bridges, sidewalks, crosswalks, ano. culverts, when the same are open to public travel, and the municipal corporation has had reasonable time and opportunity, after knowledge that such highway, street, bridge, sidewalk, crosswalk, or culvert is unsafe or unfit for travel, and has not used reasonable diligence thereafter in putting the same in repair. The fourth section limits the application of the law to highways In certain corporations which have been in use 10 years or more. The declaration in the circuit court of the cOlmty of Muskegon Bet out exactly the same cause of action as the declaration herein, except that it did not allege, what the declaration herein does allege, that Maple street was a street which had been in use for 10 years, and was open to public travel. It appeared from the bill of exceptions that, after the demurrer was sustained, and judgment given for the defendant, a writ of errol' was sued out, and the case carried for review to the supreme court of. the state: that there the judgment of the state circuit court was affirmed,. and leave was given to the plaintIff to file an amended declaration, but the plaintiff never did so: that subsequently, and after suit was brought in the court below, a stipulation to.discontinue the sUit, signed by the attorneys, was filed in the state court.
696
FEDERAL HEPORTER,
vol. 62.
The supreme conrtol lIt1tchIgll.n, In Its decision In this case, reported in 88 Mich. 808,150 N. W. 254, affirmed the judgment of the state circUit court only because· the declaration did not aver either that the sidewalk UP(l"'\ Maple street was open to public travel at the time of 'the accident, or that the street had been in use as a highway for 10 years: In the case of Fuller v. City of Jackson, 92 Mich. 197, 52 N. W. 1075, the supreme court of the state decided that the proviso in the fourth. section of the statute of 1887, with respect to 10 years' use of·the street, applied oIlly to highways in townships, and not to highways In VlIIages and cities, and to this extent the decisiO'tl in Clark v. Village of North Muskegon, 88 Mich. 808, 50 N. W. 254, was overruled. The circuit court held that the judgment in the state court was no bar to a recovery in this action, and upon a trial a judgment and verdict for plaintitr was rendered in the sum of $2,500. The only assignments of error relate to the ruling of the court with reference to the etrect of the action in the state court and the judgment therein.
Boyd & Sullivan, for plaintiff in error. R. J. Macdonald, for in error. Before TAFT and LURTON, Circuit Judges. TAFT, Circuit Judge, after stating the case as above, delivered the opinion of the court. By the common law of Michigan, municipal corporations are not lia.ble for injuries to a traveler caused by the defective condition of the streets within their borders. Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012; Detroit v. Blackeby, 21 Mich. 84; Detroit v. Putnam, 45 Mich. 263,7 N. W. 815; Church v. City of Detroit, 64 Mich. 571, 31 N. W. 447. The right of the plaintiff below to recover for her· injuries against the village or city rested wholly upon the act of 1887, and a good declaration ought to have set out the conditions precedent to a recovery mentioned in the statute. The d,ec1aration in .the state court was bad for not averring that the street or sidewalk upon which the accident occurred was open for public travel. The declaration in the court below. contained such an averment. The question presented, therefore, is whether a judgment rendered against a plaintiff on demurrer to his declaration, because it does not aver a fact essential to a recovery, estops the plaintiff from recovering on the same cause of action in a second suit, wherein the declaration, in stating the of action, does a\7er the essential fact previously omitted. We are clearly of the opinion that the first judgment is no bar to a recovery in a second suit. A demurrer to a declaration is an admission by the defendant that the factl;\ stated in the declaration are true, and a submission to the court of' the question whether, on those facts, the plaintiff is entitled to recover. If the demurrer is sustained, the decision of the court is one of law, namely, that, on the facts stated in the declaration, the plaintiff is not entitled to recover, and, if judgment goes upon the demurrer, the only issue which has been finally determined between the parties is this one of law. Such a judge ment only estops 'the plaintiff from raising, in a second suit, the .same question of law in the prosecutioll; of the same canse of action. It does not, prevent him from prosecuting, a second time, the same cause of action, provided he can and does allege, in his
CITY OF NORTH MUSKEGON tI. CLARK.
697
declaration, additional facts, so that its legal sufficiency to sustain a recovery does not depend on the question of law upon which the demurrer in the first case turned. A leading case establishing this principle is Gould V. Railroad Co., 91 U. S. 526, 533. Upon pa.ge 533, Mr. Justice Clifford, delivering the opinion of the court, said: ''From these suggestIons and authorItIes, two proposItIons may be deduced, each of whIch has more or less application to certaIn vIews of the case before the court: (1) That a judgment rendered upon demUITer to the declaration. or to. a materIal pleadIng, settIng forth the facts, Is equally conclusive of the matters coI\fessed by the demurrer as a verdict finding the same facts would be, since the matters In controversy are established In the former case, as w.ell as in the latter, by matter of record; and the rule Is that facts thus established can never after be contested between the same parties, or those In privity with them. (2) That if judgment Is rendered for the defendant on demUITer to the declaration, or to a materIal pleading in chIef, the plaintift can never after maintain against the same defendant, or his privies, any similar or concurrent action for the same cause upon the same grounds as were disclosed In the first declaration, for the reason that the judgment upon such a demurrer determines the merits of the cause, and a final judgment decidIng the right must put an end to the dispute, else the lltlgation would be endless. Rex v. KIngston. 20 State Tr. 588; Wtchin v. Campbell. 2 W. Bl. 831; Clearwater v. Meredith, 1 Wall. 43; Gould. PI. § 42; Ricardo v. Garclas, 12 Clark & F. 400. Support to those propositions Is found everywhere; but It Is equally well settled that If the plaIntiff fails on demurrer, In his first action, from the omission of an essential allegation In his declaration, which Is fully supplied In the second suit, the judgment In the first suit is no bar to the second, although the respective actions are Instituted to enforce the same right; for the reason that the merits of the cause. as disclosed in the second. declaration, were not heard and decided In the first action. Aurora City v. West, 7 Wall. 90; Gilman V. Rives, 10 Pet. 298; Richardson v. Boston, 24 How. 188."
In Gilman V. Rives, 10 Pet. 297, 302, it was held that "a judgment that a declaration is bad in substance can never be pleaded in bar to a good declaration for the same cause of action." See, also, Terry V. Hammond, 47 Cal. 32; Gerrish V. Pratt, 6' Minn. 61 (Gil. 14); Wilbur V. Gilmore, 21 Pick. 250; Carmony V. Hoober, 5 Pa. St. 307; Rodman V. Railway Co., 59 Mich. 398, 26 N. W. 651; Stevens v. Dunbar, 1 Blackf. 55, 56; Birch V. Funk, 2 }Ietc. (Ky.) 544; Railway CO. V. Brown, 23 Fla. 104, 1 South. 512; Moore V. Dunn, 41 Ohio St. 62; Freem. Judgm. § 267; Herm. Estop. § 273. The case of Goodrich v. Chicago, 5 Wall. 566, is much relied upon by counsel for the plaintiff in error, but it is entirely consistent with the cases above cited, and does not aid him. The case was a libel in admiralty against the city of Chicago by the owner of a steam vessel which had been sunk by a collision with certain obstructions in the harbor of the city. The answer of the city set up, in bar of recovery on the libel, a former adjudication in a state court in illinois, in which the libelant, as complainant in a common-law action against the city, had filed a declaration setting out the same facts as those averred in the libel. In the state court, the city had demurred to the declaration on the gronnd that, under the statute relied upon, the city owed no duty to the plaintiff. The demurrer was sustained, and judgment was given on demurrer for the city. The supreme court of illinois affirmed
698 this judgmeJit.20 TIl.: MIS. The supreme court 'Of thEt mUted States that the a good bar to recovery, because,the ,facts stated in the1i,\bel: ta:lsed thesllme:pointof law whic!lihadbeen decided:agairuitthe libelant when complainant in the state coui-t, and this conclnded him upon that point of law, with respect to that cause of action. If the libelant in had set forth, in his libel, facts of its legal sufficiency a different question frQm that presented to the state court on demurrer to the declaration;' the'l,'esult would' :llecessarily _ have been' different. No,tI:,,;,111 U. s. 472, 4 Slip. ' Ct. 495; has no to ,th:e,,,point here ,under discussion. The question in! that case was whether a hearing on -a general demurrer to undertlie J()ode of New was a "trial" of the cause, withiq section,? 'pf the act.of March, -3, 1875, providing defendants entitled to remove any suit from a state court to the circuit'colilrt of the United States could do so by filing a for suchrerlioV'a1 or at the term at which said cause conl<t.be 1irst tI,'ied and before the .trial thereof;" and it was held that liJuchahelU'ing was a tri3.1, because it would finally dispose of the case stated in the cOIpplaint on its merits, unless lel:1v;e to amend or plead over ;was granted. But there was nothing in,that case which called upon the cou-rito decide that a judgment upon such a demurrer ,would estop the bringing of a second suit 011 the same cause of action when additional facts /were averred, raising a differe'ntquestion of law. ';rhe case did not present the question of former adjudication, and is not an authority in respect to it. It only involved a construction of the removal statute of 1875, and the mea.ning of the ,Yord "trial." There is a second assignment of errOr made by the plaintiff in errl):(', in that the court be-low held that the pendency of the suit in the state court was not'abar to the suit in the federal court. The assignment of error cannot be sustained, for two reasons: First, because the pendency of the former suit is to be availed ·of as a defense by'pleain abatement; and; second, because, even as a plea ill abatement, the pendency of the same action in the statecourt is not a good plea in nfederal court, though it has concurrent territorial 9urisdictio'n with the state court. Gordonv. Gilfoil, 99 U. S. 168. The judgment of the court below is affirmed, with costs. rt
PAULY J-kIL .BLDG. & MANUF'O .
co. v. HEMPHILL COUNTY. .
(CirCUit Court of If)
Fifth Circuit. May 15, 1893.) No. 135.
1.
_
ApPEAL-MAT'l'ERS: BROUGHT UP FOR REVIEW-EXCEPTIONS BY DEFENDANT IN ERROR.
On a w1-"it of. erl'or sued out by plalntUi to review a judgment on a verdlcUor exceptions takeJ;l,oy defendant to rulings sustaining objections to: 'cerbliIi Of his pleas cannOt' be coIlsidered.