Where the second suit is upon the same cause of action set up in
the first suit, an estoppel by judgment arises in respect to every
matter offered or received in evidence or which might have been
offered to sustain or defeat the claim in controversy; but where
the second suit is upon a different claim or demand, the prior
judgment operates as an estoppel only as to matters in issue or
points controverted and actually determined in the original
suit.
To work an estoppel, the first proceeding and judgment must be a
bar to the second one because it is a matter already adjudicated
between the parties, and there must be identity of parties in the
two actions.
A suit for damages for causing death brought by the widow and
surviving children of the deceased under the state law is not on
the same cause of action as one subsequently brought by the widow
as administratrix against the same defendant under the Employers'
Liability Act, and the judgment dismissing the complaint in the
first action is not a bar as
res judicata to the second
suit.
After a plea of
res judicata has been filed and
considered and the case
Page 227 U. S. 435
tried, it is too late for defendant to raise the objection in
this Court for the first time that the case was not at issue and
should not have been tried until after plaintiff had filed a
replication to the plea.
200 F. 44 reversed.
The facts, which involve the construction of the Employers'
Liability Acts of 1906 and 1908 and the validity of a judgment
recovered thereunder, are stated in the opinion.
Page 227 U. S. 438
MR. JUSTICE DAY delivered the opinion of the Court.
This case was brought in the circuit court of the United States
for the Eastern District of Pennsylvania under the Federal
Employers' Liability Act, as amended (35 Stat. 65, c. 149; 36 Stat.
291, c. 143), by Lizzie M. Troxell, administratrix of the estate of
Joseph Daniel Troxell, deceased, against the Delaware, Lackawanna
& Western Railroad Company, to recover for the alleged wrongful
death of decedent. A verdict was rendered by the district court,
which had succeeded the circuit court, in favor of the plaintiff,
and judgment entered accordingly, which, on writ of error, was
reversed by the Circuit Court of Appeals for the Third Circuit. 200
F. 44. The case was then brought here upon writ of error.
It appears from the record that the defendant railroad company
operates a line of road running from Nazareth to Portland,
Pennsylvania, and that a branch road, known as the Pen Argyl
Branch, puts off in a northeasterly direction from Pen Argyl
Junction, a point on the defendant's line. Between 100 and 150
yards northeast of Pen Argyl Junction there is a switch running off
the Pen Argyl Branch, called Albion Siding No. 2, which extends to
certain quarries in that vicinity. The switch track is level, or
practically so, for the first 100 feet, and then rises towards the
northeast with a grade of 1 foot in 100 feet. From the place where
the Albion switch connects with the Pen Argyl Branch down to the
main track, and then westward on the main track, there is a down
grade. Six gondola cars, each about 36 feet in length, loaded with
ashes, had been placed on the Albion spur by the
Page 227 U. S. 439
train crew of which Troxell was the fireman, he at that
particular time acting as engineer, two days before the happening
of the injury hereinafter described. The night before the injury,
the yard shifter and crew had moved the cars a considerable
distance further on the spur from the junction of the siding with
the branch and on the up grade. The next morning at about half-past
7 o'clock, these cars were seen to be running rapidly down grade
toward the point where the collision occurred. The decedent,
Troxell, then engaged as fireman in propelling a train eastwardly,
consisting in part of interstate cars and freight, was at the time,
working on the tender of the engine, and when the runaway cars,
going at great speed, collided with the locomotive, he was buried
under the wreck and killed.
Lizzie M. Troxell (now the administratrix of his estate) brought
a previous action, suing as surviving widow, and joining the two
living children, against the defendant railroad company for
damages, stating that at the time of the injury, July 21, 1909, the
deceased was engaged in the capacity of fireman on a locomotive
hauling one of the defendant's trains in interstate and foreign
commerce, and that, while so engaged, without fault on his part,
and because of the negligence of defendant, and its failure to
supply and keep in good condition proper and safe devices,
instruments, and apparatus, the locomotive and train came into
violent collision with several runaway cars, resulting in the death
of Troxell, and she prayed damages on account of herself and the
children. She recovered a verdict, and judgment was rendered in her
favor, which, upon writ of error, was reversed by the Circuit Court
of Appeals for the Third Circuit. 183 F. 373.
Thereafter, having been appointed administratrix of the estate
of her husband, Lizzie M. Troxell began the present action in the
circuit court of the United States.
Page 227 U. S. 440
This action was specifically brought under the Federal
Employers' Liability Act. The petition charged that the defendant
was a common carrier engaged in interstate transportation; that
Troxell, deceased, was a fireman, engaged in that capacity upon a
locomotive and train engaged in carrying interstate and foreign
commerce, and charged that, because of the negligence,
carelessness, and oversight of the defendant, and its failure to
supply and keep in good condition proper, necessary, and safe
devices, instruments, and appliances, the locomotive and train came
into violent collision with several loose and runaway cars, causing
Troxell's death, and the plaintiff, administratrix, as aforesaid,
prayed damages, setting forth that she was the widow of the
decedent, and that there were two minor children of the parties.
The case was tried to a jury, and again resulted in a verdict and
judgment in the district court, successor to the circuit court, in
favor of the administratrix. Upon writ of error, the Circuit Court
of Appeals for the Third Circuit reversed the judgment, holding
that the first proceeding and judgment was a bar to a recovery in
the second action.
Where the second suit is upon the same cause of action set up in
the first suit, an estoppel by judgment arises in respect to every
matter offered or received in evidence, or which might have been
offered, to sustain or defeat the claim in controversy; but, where
the second suit is upon a different claim or demand, the prior
judgment operates as an estoppel only as to matters in issue or
points controverted and actually determined in the original suit.
Cromwell v. Sac County, 94 U. S. 351-353;
Southern Pacific Railroad Co. v. United States,
168 U. S. 1,
168 U. S. 50;
Virginia-Carolina Chemical Co. v. Kirven, 215 U.
S. 252,
215 U. S.
257.
An inspection of the record shows that, upon the trial of the
first action, the judge of the district court held that the
Employers' Liability Act prevented Lizzie M. Troxell
Page 227 U. S. 441
from maintaining the suit in her individual capacity for herself
and children, and that the federal act should not be considered in
determining the case, and that it was brought under the statutes of
the State of Pennsylvania, authorizing a widow to bring suit for
herself and children, not as administratrix, but in her individual
capacity, to recover damages for the death of the decedent. In such
an action, there could be no recovery because of the negligence of
the fellow workmen of Troxell. The record shows that in the first
action the trial court held that no question of the negligence of
the fellow servants was submitted, and the jury was confined to the
question of responsibility for failing to provide proper safety
appliances to prevent the cars from running down the grade in the
manner in which they did, if left unbraked, or on becoming unbraked
on the siding. The circuit court of appeals, in reversing the case,
distinctly stated that, in its view, the case might be brought
under the state act, notwithstanding the Employers' Liability Act,
and reached the conclusion that the judgment below should be
reversed.
The second action was brought under the Federal Liability Act,
under which there might be a recovery for the negligence of the
fellow servants of the deceased, and the judgment of the district
court, holding that the former case had adjudicated matters as to
defects in cars, engines, and rails, submitted to the jury only the
question of the negligence of fellow servants in failing to
properly brake and block the cars on the siding. Upon the issue
thus submitted, a verdict was rendered and recovery had in the
trial court, as we have already said.
In the circuit court of appeals, however, it was held that the
judgment in the first case was a bar to the second proceeding,
because, in view of the decision of this Court in
Second
Employers' Liability Cases, 223 U. S. 1, an
action of this kind for injury to one engaged in interstate
commerce could only be maintained under the Federal Employers'
Page 227 U. S. 442
Liability Act, and that, although the plaintiff undertook in the
first action to abandon the charge as to the negligence of fellow
servants, and relied only on the want of a proper derailing switch
on Albion Siding No. 2, nevertheless the first judgment was a bar
because, in the second action, she was merely offering to prove
additional facts which might have been proved in the first
trial.
We think it is apparent from what we have said that the first
case was prosecuted and tried upon the theory that it involved a
cause of action under the state law of Pennsylvania. It was so
submitted to the jury, and they were told that they were not to
consider the federal law, but recovery should be based upon the
right under the state act. If the circuit court of appeals was
right in its second decision that no action could have been
maintained under the state law in view of the Employers' Liability
Act, the fact that the plaintiff attempted to recover under that
law, and pursued the supposed remedy until the court adjudged that
it never had existed would not, of itself, preclude the subsequent
pursuit of a remedy for relief to which in law she is entitled.
William W. Bierce, Limited v. Hutchins, 205 U.
S. 340;
Snow v. Alley, 156 Mass.193, 195;
Water, Light & Gas Co. v. Hutchinson, 160 F. 41.
Whether the plaintiff could properly have thus recovered is not the
question now before the court. To work an estoppel, the first
proceeding and judgment must be a bar to the second one, because it
is a matter already adjudicated between the parties. The cause of
action under the state law, if it could be prosecuted to recover
for the wrongful death alleged in this case, was based upon a
different theory of the right to recover than prevails under the
federal statute. Under the Pennsylvania law, there could be no
recovery for the negligence of the fellow servants of the deceased.
This was the issue upon which the case was submitted at the second
trial
Page 227 U. S. 443
and a recovery had. Whether the plaintiff could recover under
the Pennsylvania statute was not involved in the second action, and
the plaintiff's right to recover because of the injury by the
negligence of the fellow servants was not involved in or concluded
by the first suit.
Furthermore, it is well settled that, to work an estoppel by
judgment, there must have been identity of parties in the two
actions.
Brown v. Fletcher, 210 U. S.
82;
Ingersoll v. Coram, 211 U.
S. 335. The circuit court of appeals in the present
case, while recognizing this rule, disposed of the contention upon
the ground that the parties were essentially the same in both
actions (the first action was for the benefit of Lizzie M. Troxell
and the two minor children, and the present case, although the
action was brought by the administratrix, is for the benefit of
herself and children), and held that, except in mere form, the
actions were for the benefit of the same persons, and therefore the
parties were practically the same, and that the omission to sue as
administratrix was merely technical, and would have been curable by
amendment. This conclusion was reached before this Court announced
its decision in
American R. Co. v. Birch, 224 U.
S. 547. That action was brought under the Federal
Employers' Liability Act by the widow and son of the decedent, and
not by the administrator. The lower court held that the requirement
of the act that the suit should be brought in case of death by the
personal representative of the deceased did not prevent a suit in
the name of the persons entitled to the benefit of the recovery. In
other words, the court ruled, as did the circuit court of appeals
in this case, that, where it was shown that the widow and child
were the sole beneficiaries, they might maintain the action without
the appointment of a personal representative. This Court denied the
contention, and held that Congress, doubtless for good reasons, had
specifically provided
Page 227 U. S. 444
that an action under the Employers' Liability Act could be
brought only by the personal representative, and the judgment was
reversed without prejudice to the rights of such personal
representative. We think that, under the ruling in the
Birch case, there was not that identity of parties in the
former action by the widow and the present case, properly brought
by the administrator under the Employers' Liability Act which
renders the former suit and judgment a bar to the present
action.
It is further urged that, even if this Court should hold that
the sole ground upon which the circuit court of appeals proceeded,
namely, that the former judgment is a bar to this action, was
untenable, nevertheless the judgment of the district court ought
not to be affirmed because there is no testimony in the record
adequate to sustain the verdict and judgment of that court. The
case in the appellate court must be determined not by considering
and weighing conflicting testimony, but upon a decision of the
question as to the presence of testimony in the record fairly
tending to sustain the verdict. An examination of the record
satisfies us that the district judge in his charge fairly stated
the conflicting testimony adduced as to the negligence of the
fellow servants in securing and blocking the cars on the siding,
and that there was testimony to sustain the verdict of the jury
adverse to the defendant. It is also contended that certain
testimony was inadmissible. We have examined this assignment, and,
without going into detail, find that it, too, must be denied. It is
also urged that the record shows that the case when tried was not
at issue, at least, under the rules of the lower court, was not
triable until after issue joined, and this objection is set up
because of the failure of the plaintiff to file a replication after
the court had decided that the plea of
res judicata was a
correct plea under the local practice. The case was at issue, and
the plea of
res judicata was considered and decided in
both
Page 227 U. S. 445
courts, and it is too late to make a technical objection of that
character in this Court.
Judgment of the circuit court of appeals reversed, and that
of the district court affirmed, and the case remanded to the
district court.
Upon the issue of
res judicata, MR. JUSTICE LURTON
concurs solely because of the lack of identity of the parties in
the two actions.