This cause comes into this court on error to the common pleas court of Cuyahoga county; the purpose being to reverse a judgment by direction in the court of common pleas against plaintiff in error, Roosevelt Allamong, who was plaintiff below, in favor of the defendant, Claude C. Falkenhof, on the theory that the whole matter had been *Page 516 decided in the municipal court of the city of Cleveland, which court had jurisdiction of the persons and of the subject-matter that was in dispute, and that, the judgment of the municipal court having been affirmed by the Court of Appeals, the whole matter had been determined and was res judicata, and therefore Allamong could not maintain his cause of action, and therefore judgment of dismissal was entered against him. As already stated, it is to reverse that judgment that error is prosecuted here.
The questions that are raised in this case are interesting and important, and therefore we have taken considerable time to investigate and to thoroughly familiarize ourselves with both the law and the facts, and even after all that is done, the court cannot unanimously agree upon the decision, but the majority of the court feel that the common pleas court was right in its judgment, and that the whole matter had been determined and adjudicated in the municipal court.
From the record, arguments of counsel and briefs we learn that the plaintiff and the defendant, each driving his own automobile, came into collision on St. Clair avenue near East Sixty-Fourth street and Addison road. It seems that the defendant in the court of common pleas, Claude C. Falkenhof, as plaintiff in the municipal court, commenced a suit to recover damages sustained to his automobile by reason, as he alleged in his statement of claim, of the carelessness and negligence of the defendant in that court, Roosevelt Allamong, the plaintiff in the court of common pleas, the instant case. Summons was served upon the defendant in the municipal court case, and the defendant filed a statement of *Page 517 defense in which he denied any negligence upon his part, but alleged that the negligence was solely upon the part of the plaintiff, and he denied specifically and particularly, as the rules of the municipal court require, all negligence asserted in the plaintiff's statement of claim in the municipal court, and alleged that he himself was free from negligence.
The issue was thus made up in the municipal court and the case came on for trial, and after hearing all the evidence in the case the court, sitting both as judge and jury, found in favor of the plaintiff in that action and against the defendant, finding, of course, that the defendant's negligence, as alleged in the petition, caused the accident and the damage resulting therefrom, and that the plaintiff was free from negligence, and the court rendered a judgment in favor of the plaintiff in the sum of $153, the amount of damage to the automobile.
The defendant in that action, Allamong, the plaintiff in the common pleas court, carried that case to the Court of Appeals, and in due time it came on for hearing in the Court of Appeals, and the Court of Appeals, after hearing the argument of counsel and the law in the matter, affirmed the judgment. It does not appear that the case was carried any farther, nor does it appear that that judgment was ever paid or satisfied, but it was never modified or changed, and became a binding judgment upon the defendant in that case, the plaintiff in this.
Now the day after the plaintiff in the municipal court case, Falkenhof, brought his suit, plaintiff in the instant case, Allamong, brought his suit in the court of common pleas alleging personal injuries, *Page 518 and damages to his autmobile, as well, and the defendant filed an answer setting up the judgment in the municipal court case in which the issue upon which a recovery could be based was decided in favor of the defendant in the common pleas court action, plaintiff in the municipal court action, and against the defendant in the municipal court action; and such proceedings were had before the court as brought into the record, probably by the pleadings and opening statement of counsel, the whole matter, so that the court was fully advised of the exact status of the litigation between these parties, and as already stated, the court sustained the motion for judgment in favor of the defendant below, defendant in error here.
Now it is claimed that this is not res judicata, because in the common pleas court there were alleged very serious injuries to the plaintiff, that is personal injuries, which in amount were much greater than the municipal court had jurisdiction of, and that, therefore, the matter could not be res judicata, because the municipal court did not have complete jurisdiction over the possible amount that might have been recovered, for, as alleged in the plaintiff's petition, the plaintiff suffered the loss of one, if not both, eyes, and, of course, that injury, if sustained by proof, would entitle the plaintiff to much greater damages than the municipal court could allow.
There has been much learning expended in this case, and there has been searching of authorities, but so far as I have been able to learn there is not one that is exactly in point. There are many authorities to the effect that had the plaintiff in the *Page 519 common pleas court brought an action for the damage to his automobile in the municipal court, and recovered, he would not be barred from bringing another action in a court having jurisdiction for the personal injuries. In other words, there were two causes of action, and while it is better practice that a man settle all his difficulties in one suit, yet if he sought to divide them up, the splitting of causes of action would not necessarily be a bar in a court having complete jurisdiction over one of the causes of action, and much authority has been cited to sustain this contention, and the writer of this opinion agrees with it.
But it must be conceded that the municipal court had jurisdiction of the subject-matter and jurisdiction over the persons to settle this whole controversy. The damages that were sustained by the plaintiff might not have reached more than $2,500 and therefore the jurisdiction of the municipal court would be complete over the amount to be rendered. But the serious question is this, That in order to found any right of action on his part the plaintiff in the common pleas court must prove that the defendant was guilty of negligence, and that is the first question to be determined. The amount of recovery is incidental only to the negligence of the sued defendant, for if it were a jury case in the common pleas court, or in the municipal court either, for that matter, the court would tell the jury that the first question that they must determine was whether the defendant was negligent, and, if so, was that negligence the proximate cause of the injury? And, if they found that in favor of the plaintiff, then they could go to the second question which would be the *Page 520 amount of damages to be recovered; but in the event that they find no negligence upon the part of the defendant, or, finding negligence upon the part of the defendant, they find that the plaintiff also was guilty of negligence which contributed to the injury, then the plaintiff could not recover and they need go no further.
So the basis for the right to recover anything or any amount is the negligence of the defendant that is sued, and if there were no negligence, of course, there could be no recovery. So that was the gravamen of the offense, and the cause, if it existed, which would give rise to a right of recovery.
Now over that question the municipal court had jurisdiction and that was the issue that was raised, as shown by the pleadings and files in the case in the municipal court, and that was determined by the court in favor of the plaintiff in that action, the defendant in the common pleas action. The court found that the defendant in the municipal court action was guilty of negligence which caused the injury to the then plaintiff's automobile, that the plaintiff in that action, the defendant in the common pleas action, was guilty of no negligence, and that judgment was affirmed by the Court of Appeals and remains as the law of that case, and however we may regret the inability of the plaintiff to present the damage to his person, the loss of his eyesight, to the court and jury, it is something over which we now have no control.
It is asked what the remedy would be if a person, to avoid responsibility, when there was a possible graver liability for injuries caused by him, should rush into a lower court and secure a judgment in his *Page 521 favor. Well, that is assuming that the court acts corruptly or inadvisedly when there is a judgment in favor of the plaintiff in that action in order to prevent a larger liability being asserted. We do not think that such an argument is tenable, but, if it were, we presume there is a remedy in the courts, if taken at the proper time; that is if the municipal court case was started first so that it had precedence, and thus obtained jurisdiction, then in the common pleas court, where the same matter was involved, the common pleas court having more complete and adequate jurisdiction than has the municipal court, upon a proper setting up of that in the petition or supplemental petition in the court of common pleas an injunction might be granted by the common pleas to enjoin the defendant in the common pleas court, the plaintiff in the municipal court, from proceeding in the municipal court, for the reason that the matter was pending in the common pleas court, which had more complete jurisdiction over the matter, and we think an inferior court might be enjoined under the circumstances. That would be a complete answer to the statement that a man might steal a march on his adversary and have a judgment that would foreclose the person injured from prosecuting his claim. That was not done in the instant case. The plaintiff in the common pleas court went into the municipal court, as already stated, filed his statement of defense, and the question and the sole question before the municipal court was which of these two parties was negligent. If the plaintiff in the municipal court had been negligent, he could not have recovered, and if a judgment had been rendered against him in the municipal court in the matter of damage *Page 522 to his machine it would have been on the ground that the defendant in that court was not guilty of negligence. Then, even though the defendant in that action might have set up his damages as a counterclaim, yet if he did not, he would not be barred, we think, under the authorities, from prosecuting his claim for personal injury or damage to his automobile, or both, in the court of common pleas.
This member of the court, at least, thinks that where one has a counterclaim he can use it in asking for affirmative relief or need not use it, but simply defend and sue for relief in another court. He is not obliged to use his counterclaim, although it is better practice to do so. He can make that the basis of an affirmative action, and we think the authorities that are quoted to us in this case amply demonstrate this to be the law.
From the whole record in this case, from the authorities that we have examined, the majority of the court can come to no other conclusion than that the court of common pleas was right in dismissing the proceedings on the ground that the matter had been adjudicated in the municipal court and that it was res judicata.
For that reason the majority of the court feel that the judgment must be affirmed.
Judgment affirmed.
CLINE, J., concurs.