(dissenting).
H am 'unable to agree with the majority opinion.
I ft support of its defense based upon the doctrine of res judicata the City offered in ‘evidence the Judgment roll in the condemnation prócée'ding and also offered in evidence 'the ¡hefeafter-referred-to transcript 'covering matters which occurred during '•trial of saicLproceeding.
In 'the petition,' notice, order appointing commissioner's, report of commissioners and demand for jury trial filed in the condemnation proceedings, no mention was made of ,crops or datfiag'e to crops. In th'e report of the commissioners Graham was awarded damages of $2,500 to his dairy, 'but the dairy business was not conducted on- the land upon which the broomcorn was planted. The jury, by its'verdict, awarded Graham $2,950 as damages resulting from 'the City taking his %oths interest in Tract No. 1 and awarded “damages by reason of the City taking possession of land on which (Graham) had an agricultural lease for 1956, being Tracts 1 and 2, and fix the amount of his damage at $1,700.00.” The broomcorn was planted on Tract No. 2. The verdict of the jury was quoted in the court’s judgment thereon, which judgment provided that Graham “have and recover * * * the sum of $4,650.00.” No mention of the broomcorn crop was made in said judgment. In the instant cáse the trial court found that “The item of broomcorn damage was not submitted to the jury” in the condemnation proceeding and that the jury was instructed not to consider said damages.
The referred-to judgment roll in my opinion does not clearly show that the issue presented by the instant case was adjudicated in the condemnation proceeding. This fact may have caused 'the City to introduce in evidence the transcript which shows that mention was made of said issue (damages to the broomcorn crop) at trial of said proceeding, but which also shows that said issue was in fact reserved for trial at a later date. In view of the fact that the City introduced the transcript in evidence, it is bound by the matters shown therein (32 C.J.S. Evidence § 1040, p. 1113 and 20 Am.Jur. “Evidence”, Sec. 915, p. 771) and is not in a position to urge that said transcript constitutes extrinsic evidence that may not be considered in construing the judgment roll that it introduced in evidence. To my way of thinking, the transcript shows that the City’s defense based upon res judicata is not well taken.
In a statement relative to the basis of the doctrine of res judicata, it is stated in 30A Am.Jur. “Judgments”, Sec. 326, p. 373, that “The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a 'court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. The doctrine of res judicata not only puts an end to strife, but produces certainty as to individual rights and gives dignity and respect to judicial proceedings.”
*465I am of the opinion that this is not a case where the City would be harassed or vexed, nor would the dignity that should be given judgments of courts be impinged upon by permitting Graham to assert the cause of action that he here seeks to assert. The hereafter-referred-to transcript shows that in the eminent domain proceeding the following occurred during counsel for the City’s cross examination of Graham :
“By Mr. Brown: If the court please, I want to object to this as improper cross-examination. I didn’t ask him anything about this at all. Furthermore, he has filed a claim with the City of Duncan on that, filed along two or three months ago.
“By the Court: It is improper cross-examination. He didn’t bring it out in direct examination.
“By Mr. Paul Sullivan: All I was trying to find out is what he is claiming damages for here, Your Honor.
“By Mr. Brown:. We are not claiming damages on that in this law suit. •
“By the Court: It’s improper cross,examination; it’s something you’re bringing out that the defendant did not bring out in his direct examination; it’s improper.
“Q. All right. Now, is that all the damages now that you have that you want the City to pay for ? .:
“A. In this suit? Yes, sir.
“Q. In this suit? All right, that’s what I am asking you?
“A. Yes, sir.”
On redirect examination, one of Graham’s counsel asked Graham a question relative to destruction of his broomcorn crop. Upon being reminded by co-counsel that said matter was not in issue the following transpired:
“Q. I didn’t understand that. You, filed a claim with the City for your broomcorn in addition to this suit here?
“A. Yes, sir.
“Q. And that’s not in this suit here, is that right?
“A. That’s right.
“By the Court: Let the jury disregard then any claim for broomcorn or damage to the tractor because that’s in another matter between he and the City of Duncan; it’s not in this case at all.”
It will be noted that counsel for the City ■acquiesced in Graham’s action in reserving for later trial the matter of damages that were sustained because of destruction of the broomcorn crop and that the trial judge specifically advised the jury that the claim for broomcorn damages was not in the case “at all”.
I am of the conviction that a party to litigation should not be permitted to acquiesce .in the other party expressly reserving an issue for subsequent trial and defeat trial on the reserved issue by urging the doctrine of res judicata. In 29 C.J.S. Eminent Domain § 328, p. 1371, this is said:
“However, the judgment is not conclusive as to items of damage which were not in issue or within the scope of the issues, or with respect to which the owner’s right to sue was expressly reserved. * * * ”
At p. 168, § 711, 50 C.J.S. Judgments, this is said:
“A judgment or decree is not conclusive as to questions which it reserves or excludes, either expressly or in effect, but its conclusiveness as to matters not so reserved is not affected by the reservation. The reservation is res judicata of itself, that is, of the fact that certain questions are reserved.”
In Moses et al. v. Town of Morganton et al., 195 N.C. 92, 141 S.E. 484, the Supreme Court of North Carolina held that landowners were not estopped from suing for damages for pollution of stream adjacent to their premises, nor was their cause of action rendered res judicata as against power company which condemned their *466land, where issue of damage from pollution of water was withdrawn from condemnation suit by leave of court.
This Court is committed to the rule that a judgment which excludes or reserves a particular question is not res judicata as to said question. See Powell Bros. Truck Lines, Inc. v. State ex rel. Green, 177 Okl. 568, 61 P.2d 231; Cumeo et al. v. Champlin Refining Co. et al., 178 Okl. 198, 62 P.2d 82, and Rucker et al. v. Campbell, 180 Okl. 580, 71 P.2d 718.
It is pointed out in 30A Am.Jur., Sec. 325, p. 372, that the doctrine of res judicata “is to be applied in particular situations as justice and sound application of the policy behind the doctrine require; it is not to be applied so rigidly as to defeat the ends of justice or to work an injustice.”
The record clearly shows that Graham owned the broomcorn crop; that the City destroyed same; that Graham sustained damages as a result of said destruction; that upon Graham making known to the court that he wished to reserve for trial at a later date his asserted right to recover said damages the court stated “Let the jury disregard then any claim for broomcorn or damage to the tractor because that’s in another matter between he and the City of Duncan; it’s not in this case at all.”; that the City acquiesced in said reservation and that Graham has never had a trial on said reserved issue. The majority opinion establishes that if the doctrine of res judicata is applied to Graham’s instant action he will be unable to recover because of the destruction of his broomcorn crop.
Under the facts of this case, I am convinced that the doctrine of res judicata should not be applied because to do so would manifestly defeat the ends of justice and work an injustice.
For reasons stated, I respectfully dissent to the majority opinion.
I am authorized to state that BLACKBIRD and IRWIN, JJ., concur in the foregoing dissenting opinion.