Telephone Co. v. St. Louis.

would be liable to indemnity in favor of the other, or whether one would be liable in contribution to the other, cannot be determined in the original action against both of them. Miller v. United Rys. Co., 155 Mo. App. 547. The plaintiff in the Merritt case was in no way interested in any question of primary and secondary liability, as between the defendants, and no such question was there litigated. (4) Defendant offered no evidence of any facts tending to show that the Kinloch Telephone Company was primarily liable to Merritt. It merely sought to overcome the prima-facie case made by the plaintiff under the statute: (a) By arguing that the Merritt judgment rested upon the primary liability of the Kinloch Telephone Company, and (b) by introducing in evidence two bonds given by the Kinloch Telephone Company to the city, conditioned for the faithful compliance by it with the provisions of certain general ordinances regulating wire-using corporations. The judgment

in the Merritt case is conclusive as to these facts only, viz. that the street was in an unsafe condition; that Merritt was injured by reason thereof, without fault on his part; that he sustained damage to the amount of four thousand dollars; and that each defendant was liable therefor. "The scope of the estoppel created by the first judgment cannot be extended beyond the points and issues necessarily determined by it." St. Joseph v. United Rys. Co., 116 Mo. 643; Black on Judgments, 574. The subject of these ordinances has nothing to do with telephone poles. The bond was, therefore, not applicable to any work done about a telephone pole. Neither of these bonds was given to indemnify the city against liabilities for injuries resulting from negligence. (5) The defendant city is precluded, by its own conduct in the Merritt case, from asserting that the Kinloch Company was primarily responsible for

Telephone Co. v. St. Louis.

the injuries to Merritt. It had an agreement with the Kinloch Company, in the interests of a common and joint defense, that neither defendant would attempt to cast any primary liability upon the other. And it argued that Merritt had made no case of negligence against the Kinloch Company, that the uncontradicted evidence showed that the original excavation was refilled by the Kinloch Company; and that there was no testimony that the hole was neglegently and carelessly filled. The law will not permit the defendant now to assume a position inconsistent with that taken by it in the Merritt case. Bigelow on Estoppel (6 Ed.), p. 732; 16 Cyc. 801, 805; Bensieck v. Cook, 110 Mo. 182; School District v. Dorton, 145 Mo. 304; Greeley v. Bank, 103 Mo. 212; Coney v. Laird, 153 Mo. 408; Nave v. Todd, 83 Mo. 601; Fairbanks v. Baskett, 98 Mo. App. 64.

Charles H. Daues and Truman P. Young for respondent.

(1) The plaintiff is not entitled to recover under the petition and the facts in this case because the Kinloch Telephone Company created the condition in the street which caused the injury to Merritt and was primarily responsible to Merritt, the person injured and who recovered judgment against the city and the company. If the city had been required to satisfy this judgment, the Kinloch Telephone Company would have been liable over to the city in exoneration for the whole amount of the judgment. Hanniford v. Kansas City, 103 Mo. 172; Chicago v. Robbins, 67 U. S. 418; 4 Dillon, Mun. Corp. (5 Ed.), secs. 1728, 1720, p. 3024; 1 Shearman & Redfield on Negligence (5 Ed.), sec. 301; 2 Thompson on Negligence (1 Ed.), pp. 789, 791; St. Joseph v. Union Ry. Co., 116 Mo. 637; Memphis v. Miller, 78 Mo. App. 67; Rochester v. Campbell, 123 N. Y. 411; Lowell v. Rail

Telephone Co. v. St. Louis.

road, 23 Pick. 24; McNoughton v. Elkhart, 53 Ind. 391; District of Columbia v. Railroad, 12 D. C. 318; Elkhart v. Wickwire, 87 Ind. 80; Rochester v. Montgomery, 72 N. Y. 65; Milford v. Holbrook, 9 Allen (Mass.), 23; Portland v. Richardson, 54 Me. 46; Inhabitants of Swansey v. Chase, 16 Gray (Mass.), 303; Inhabitants of West Boylston v. Mason, 102 Mass. 341; Inhabitants of Woburn v. Railroad, 109 Mass. 283. (2) Sec. 5431, R. S. 1909, providing that defendants in a judgment founded on an action of tort shall be subject to contribution in the same manner as defendants in a judgment in an action on contract, refers only to cases where there has been a concert of action in the commission of a tort. The statute has no possible application to a case where the liabili ty of the parties is upon a different plane, where the liability of one is primary and the liability of the other is secondary. Robertson v. Trammell, 83 S. W. (Tex.) 265; Burkson v. Railroad, 144 Mo. 217; Avery v. Bank, 221 Mo. 71; Iron Co. v. Rice, 179 Mo. 493; Eaton & Prince v. Trust Co., 123 Mo. App. 117; Van Patten v. Richardson, 68 Mo. 380; 9 Cyc. 794; 6 Pomeroy's Eq. Jurisprudence (3 Ed.), secs. 912, 915, 916; Adams' Equity star p. 267; 7 Am. & Eng. Ency. Law (2 Ed.), pp. 325, 330, 364, 365; Portland v. Richardson, 54 Me, 46; Milford v. Holbrook, 9 Allen (Mass.), 17; Lowell v. Railroad, 23 Pick. (Mass.) 24; Mill Co. v. Wheeler, 31 Minn. 121; Newbury v. Connecticut Co., 25 Vt. 377. (3) The Kinloch Telephone Company was under bond to the city to protect the city against damage suits such as Merritt brought against the Kinloch Telephone Company and the city. The city was fully protected by that bond, and if the city had been compelled to pay the judgment obtained by Merritt it could have recovered the amount on the bond given by the Kinloch Telephone Company to the city. This alone would be

Telephone Co. v. St. Louis.

Heman Const. Co.

a sufficient defense in this case. v. St. Louis, 256 Mo. 332; Rev. Code of St. Louis, secs. 1102, 1107, 1125, 1182, 1192. (4) The principle of estoppel does not apply in this case. The mere fact that the city was jointly sued with the Kinloch Telephone Company and defended the suit and raised no controversy between itself and the company, cannot possibly operate as any estoppel against it in subsequent litigation between the city and the company. 11 Am. & Eng. Ency. Law (2 Ed.), pp. 433, 434; Bigelow on Estoppel (5 Ed), pp. 556, 609, 626. (5) While it is true that the judgment in the Merritt case is not res adjudicata as to the respective rights between the telephone company and the city, yet, the judgment in the Merritt case was an adjudication, at least, to the effect that Merritt was entitled to a judgment against the company, and the company could not in subsequent litigation undertake to show that it had a complete defense in that case, and that if there was any hole in the sidewalk it was due to causes other than those for which the telephone company could be held responsible. The fundamental fact that the hole was made by the Kinloch Telephone Company, and that it was therefore liable to Merritt, was a thing adjudicated in the Merritt case. It is no longer an open question. It is obvious from the evidence in the case that the Kinloch Telephone Company was primarily liable to Merritt, and that the liability of the city was secondary, and that therefore the right of contribution does not exist

ROY, C.-One Merritt recovered judgment for $4000 as damages for personal injuries in a suit against both the parties to this suit. The telephone company paid that judgment with interest and costs and sues herein for contribution. Defendant had judgment and plaintiff has appealed. The opinion of

Telephone Co. v. St. Louis.

this court on appeal in the Merritt case is reported in 215 Mo. 299. Reference is made to the report of that case for such facts as are not herein stated.

In the latter part of September, 1901, the telephone company replaced an old pole with a new one at the intersection of Newstead Avenue with Lucky Street in St. Louis, with permission of the city. On February 5, 1902, Merritt fell into a hole at the foot of that pole and was injured.

The petition in that case stated that the telephone company, in setting said pole in the street near the sidewalk, had negligently refilled the hole in which such pole was set in such manner that the earth around the pole sank, forming a hole dangerous to persons on the street, and that the telephone company knowingly and carelessly permitted said hole to remain without a guard or light, and that the city knowingly and negligently permitted such hole to remain unfilled and unguarded. That petition then stated that by reason of such negligence Merritt fell into that hole and was injured.

The petition in this case alleges the beginning of the Merritt suit, sets out in haec verba the body of the petition in that case, alleges that the defend ants in that case filed separate answers therein denying the negligence charged, and averring that Merritt's injuries were the result of his own negligence. The petition in this case then alleges the recovery of judgment by Merritt against both the defendants in that case, and the payment of the entire judgment by this plaintiff.

The answer herein states that said telephone pole was set by this plaintiff in a street of that city by permission of the city under an ordinance which required that those who should erect such poles should restore the streets and save the city harmless from all loss, cost or damage by reason of the exer