Hardy v. Rosenthal

MARKS, J.

Plaintiff recovered judgment against defendant for damages resulting from a collision between a loaded gasoline truck and trailer, driven by Jessie W. Nicholson, an employee of plaintiff, and an automobile driven by defendant. The sole question to be decided here is whether a prior judgment in favor of the plaintiffs in an action brought by Emil Stoffel and Carnation Stoffel against Jessie W. Nicholson, H. J. Hardy and T. Rosenthal, is a bar to a recovery by the plaintiff in the instant case.

This case comes before us on the judgment roll, with the pleadings, verdict and judgment in the Stoffel case, which are exhibits in the instant ease, included in the clerk’s transcript. Whether these exhibits are properly before us might be questioned, but because they are fully summarized in the findings of fact this question is rendered unimportant.

The facts pertinent to this appeal may be stated as follows: At 8 o’clock in the morning, on December 11, 1932, Emil Adolph Stoffel and his family were in their home near San Juan Capistrano in Orange County. The house was situated on the west side of the main highway between Los Angeles and San Diego (U. S. Highway No. 101). Mr. Stoffel, his wife and family, including a two-weeks old baby, were inside the house when an automobile driven by defendant who, in attempting to pass a tank truck and trailer loaded with gasoline (owned by Hardy and driven by Nicholson), collided with the truck and trailer. As a result of the collision the automobile and the truck and trailer ran off the highway and into the house of Stoffel, striking it with such force that it was thrown from its foundation. It immediately caught fire and was burned. Stoffel received personal injuries, his two-weeks old baby was killed, Hardy’s truck and trailer were demolished and burned, and Rosenthal’s car seriously damaged. Stoffel and his wife filed suit against Hardy, Nicholson and Rosenthal, charging that their

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damages were caused through the. joint negligence of Hardy, acting through his employee Nicholson, and of Rosenthal. They recovered judgment against the three defendants. Counsel are in agreement that this judgment was paid by Hardy and Rosenthal.

Defendant maintains that as the jury in the Stoffel ease necessarily found that Hardy, acting through his employee, and Rosenthal were both guilty of negligence which caused the injuries to the Stoffels, the trial judge was precluded from finding Hardy, acting through his employee, free from contributory negligence in the instant case. He cites the following cases in support of this contention: