I am compelled to depart from the judgment of the majority of this court.
In the common pleas court the motion of the defendant for judgment on the pleadings was granted *Page 523 by that court by reason of prior adjudication of controlling facts in issue. Accordingly the plaintiff's petition was dismissed.
On February 16, 1928, plaintiff filed a petition wherein it was alleged that through the carelessness and negligence of the defendant, the plaintiff sustained permanent injuries, and he prayed for judgment in the sum of $25,000. The answer filed by the defendant, by way of special defense, sets forth the defense of res judicata, in this, to wit, that on or about November 15, 1928, in an action in the municipal court of Cleveland, wherein the present defendant, Claude C. Falkenhof, was plaintiff, and Roosevelt Allamong, the present plaintiff, was defendant, the issues were the same as in the petition herein, and Claude C. Falkenhof recovered a judgment against defendant, Roosevelt Allamong, for $153; that the judgment of the municipal court was affirmed by the Court of Appeals on April 17, 1929; that said judgment involved the same parties and the same issues, and that therefore the judgment of the municipal court, which now stands unreversed and unmodified, is a bar to the present action because the issues have been fully determined in the municipal court.
To this answer the plaintiff filed a reply wherein it is admitted that on November 25, 1928, defendant in the present action recovered a judgment against plaintiff in the present action, in the sum of $153 for property damage, and that the same stands unreversed and unmodified. The reply denied that the issues in the municipal court were the same as those in the present case, and also averred that the municipal *Page 524 court was without jurisdiction to determine the issues in the present case.
As I scan the operative facts which appear in the plaintiff's amended petition, I gather that a collision occurred between two automobiles, the one driven by plaintiff, and the other driven by the defendant; that the action instituted by the present defendant against the present plaintiff in the municipal court of Cleveland, in which he recovered a judgment for property damage, arose from the same accident as that which now furnishes the basis for the action of the plaintiff in the common pleas court.
It is quite true that, if the finding of the municipal court to the effect that the present plaintiff, who was defendant therein, was negligent in the operation of his automobile, were to be held an adjudication as to all further disputes between the parties, the present action would necessarily be barred. It must be kept in mind, however, that in the municipal court the present plaintiff, who was defendant therein, did not set up a counterclaim embracing the claim which is now asserted in his petition filed in the common pleas court. All that he did was merely to defend himself against the action brought against him in the municipal court for property damage.
The defendant in an action is ordinarily required to set up all his defenses which do not constitute separate causes of action, and if he neglects to do so he is precluded by the judgment rendered in the action. The general rule is that a judgment operates as res judicata not only in regard to the existence of the plaintiff's cause of action, but as to the non-existence of the defense which was not *Page 525 pleaded. The reason for the rule lies in the principle that there must be an end to litigation, and where a party has an opportunity to present his defense and neglects to do so the demands of the law require that he should take the consequences.
It is the policy of the law that a defendant cannot split up his defenses when they are indivisible, and present them piecemeal in successive suits growing out of the same transaction. This statement of the general rule is subject to definite limitations. Thus it has been held that other separate and distinct causes of action need not be pleaded by the defendant, and that the failure so to plead does not operate as a bar to any further action between the parties.
The case which to me seems to be quite in point is the case ofJordahl v. Berry, 72 Minn. 119, 75 N.W. 10, 45 L.R.A., 541, 71 Am. St. Rep., 469. In that case suit was brought before a justice of the peace for a physician's services. The defendant did not interpose any counterclaim for malpractice, but resorted to the defense that the services were not skillfully performed and that therefore the doctor's fees were not earned. The justice of the peace rendered a judgment in favor of the physician, which judgment stood unreversed and unmodified. Later the defendant in the justice of the peace court filed a separate suit in a court of competent jurisdiction for a large sum, asking a judgment against the physician for malpractice. The physician interposed a defense of res judicata, asserting that the question of the character of the services rendered by the physician was necessarily involved in the suit before the justice of the peace, in which he *Page 526 recovered a judgment, and that therefore said judgment should operate as a bar to the present action against him for malpractice.
The court, amongst other things, pointed out that the claim of the plaintiff for damages for malpractice was for an amount far exceeding the statutory jurisdiction of the justice, and that therefore it was not incumbent upon the plaintiff in the malpractice case to have asserted his claim in the suit which the physician brought against him for services in the justice of the peace court.
It has been said that it would be a harsh and oppressive rule which would make it necessary for one sued on a trifling claim to resist it and engage in costly litigation in order to prevent the obligation of a judgment which would be held conclusively to have established against him every material fact alleged and not denied, so as to preclude him from showing the truth, if another controversy should arise between the same parties. Watts v.Watts, 160 Mass. 464, 36 N.E. 479, 23 L.R.A., 187, 39 Am. St. Rep., 509; 15 Ruling Case Law, 970, Section 447.
The Minnesota case above referred to has an important bearing upon the case before us. It must be borne in mind that the jurisdiction of the municipal court in tort actions for injury to person or property, or both, is limited to $2,500. The issues involved in the present litigation were outside the jurisdiction of the municipal court to determine, for under no circumstances could the municipal court have granted the prayer of the plaintiff's petition, wherein he asked damages in the sum of $25,000.
I am of the opinion that before a judgment of a court of competent jurisdiction could be held to *Page 527 operate as a bar against further litigation between the same parties, it must appear that the subsequent claim asserted by one of the parties was such as could have been adjudicated in a single action by the same court; that where it appears that the jurisdiction of the court was of a limited nature, and that the entire controversy between the parties could not have been adjudicated had the parties seen fit to assert it by way of counterclaim, the judgment of such court should not be said to operate as a bar against further litigation between the same parties.
It will be seen that the doctrine of res judicata was founded upon public policy which frowned upon interminable litigation. It was thought best, as a rule of public policy, to promulgate a doctrine which would put an end to litigation once it has been determined by a court of competent jurisdiction.
Whether or not damages to person and property arising from the same accident are regarded as a single cause of action is discussed in volume 1, Sedgwick on Damages (9th Ed.), Section 85 (c), as follows: "Where the defendant commits two distinct torts, recovery may be had in separate actions; the damages recovered in each action being confined to those resulting from the tort in question. So where the same accident resulted in damage to the plaintiff's person and to his property it is usually held that he may recover separately for the separate injuries." See, also,McAndrew v. Lake Shore M.S. Ry. Co., 70 Hun, 46, 23 N.Y.S., 1074; Reilly v. Sicilian Asphalt Paving Co., 170 N.Y. 40,62 N.E. 772, 57 L.R.A., 176, 88 Am. St. Rep., 636; Watson v. Texas Pac. Ry. Co., 8 Tex. Civ. App., 144, 27 S.W. 924; Town ofNewbury v. *Page 528 Connecticut Pass. Rivers Rd. Co., 25 Vt. 377; Brunsden v.Humphrey, 11 Q.B. Div., 712, 14 Q.B. Div., 141.
In a few jurisdictions it is held that there is but one cause of action.
Among the reasons for thinking the causes of action different is the following: Negligence is no cause of action at all, and only becomes so when united with damage.
It seems to me that since by the weight of authority injuries to a person and injuries to his property, though resulting from the same accident, are deemed separate causes of action, the adjudication of one cause of action dealing with injuries to one's property should not be held a bar to another existing and separate cause of action which consists of injury to one's person, even though the question of negligence was involved in the former suit for injuries to property.
In my opinion the doctrine of res judicata applies only to all existing defenses which might have been interposed in the former suit, wherein the judgment was rendered, but does not apply to separate existing causes of action which the party did not see fit to assert.
The sound objection which is lodged against splitting one cause of action and dividing it into several items cannot be urged against existing separate causes of action.
In so far as the judgment of the municipal court relates to property damage, I can well concede that no other action based on property damage can be brought, because it has been fully adjudicated by a court of competent jurisdiction. It does not, in my *Page 529 opinion, apply to another existing and separate cause of action, based upon the injuries to person.
For these reasons I respectfully dissent from the judgment of the majority of the court, and am of the opinion that the common pleas court committed error in granting defendant's motion for judgment on the pleadings.