Triano v. F.E. Booth Co., Inc.

TYLER, P. J.

Action for damages by plaintiff, a minor eight years of age, for injuries received by him in coming in contact with a gear of one of the peeling devices in defendant Booth Company’s canning plant.

The action was first brought in Alameda County. The complaint was in two counts. The first alleged that plaintiff became dizzy and was about to fall and to save himself from striking the floor he ran his hand into the gear, resulting in the. injuries, complained of. The second count was based upon the attractive nuisance theory. Defendant Booth & Company is a Nevada corporation. The ease was transferred or removed to the federal court. At the opening of the trial in that court, plaintiff dismissed the first count and the case was tried under the second. The trial resulted in a verdict for defendant and judgment on such verdict was entered and it became final.

Thereafter plaintiff instituted another action to recover for the same injuries, and joined as defendants the Booth Company and its stockholders. This complaint contained the identical counts of the original and earlier action. Both actions were founded on the same cause of action and the parties were the same except the stockholders of the Booth Company were joined as defendants. The defendants pleaded estoppel and

res judicata.

The trial court granted the motion and dismissed the case as against all the defendants and both causes of action. Judgment was entered accordingly. This appeal is from the judgment.

[347]

It is claimed that the trial court committed error for the reason that the only matter litigated in the federal court was the count based on the attractive nuisance theory which resulted in favor of the Booth Company, and nothing else, and in favor of no one else. While the complaint in the original action was in two counts, there was but one cause of action.

It is a universal rule that a judgment between the same parties is conclusive, not only as to the subject matter in controversy in the action upon which it is based, but also in all other actions involving the same question, and upon all matters involved in the issues which might have been litigated and decided, the presumption being that all such issues were met and decided. It is the policy of the law to put an end to litigation and not to allow a new and different action between the same parties, concerning the same subject matter that has already been litigated. A party cannot litigate his cause of action by piecemeal and after a judgment against him seek in another action to obtain relief dependent upon the transaction therein adjudicated, by bringing forward claims and demands properly belonging to the first action. He may not split up a single cause of action in this manner.