
    Silber et al. v. The First Catholic Slovak Union.
    
      Judgments — Res judicata applies, when — Beneficiary of benefit certificate determined in first action — Second action raised issue of insured’s insanity when beneficiary changed— All defenses to be tried in one action.
    
    1. In action on benefit certificate, where all parties in interest submitted claims for money in custody of court, and last-named beneficiary was adjudged to be sole beneficiary, judgment therein held res judicata as to suit on certificate by first-named beneficiaries, alleging insured was insane at time beneficiary was changed, since issue of insanity could have been raised in first action.
    2. “Res judicata” applies to all judgments affecting same issues and same parties and growing out of same transaction, even though issues which might have been raised were not raised in proceedings.
    3. Party defending is bound to set up all matters of defense, and cannot retry same issues in new and independent action.
    (Decided November 15, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. J. W. Kulha and Mr. H. R. Hill, for plaintiffs in error.
    
      Mr. E. W. Vallco, for defendant in error.
   Sullivan, J.

This cause is here on proceedings in error from the municipal court of the city of Cleveland, and the question is whether the principle of res adjudicata applies.

It appears that prior to 1920, one Michael Zoldak, now deceased, was a member of the First Catholic Slovak Union of the United States, and as such was insured for the sum of $1,000. He designated as his beneficiaries his children, including Mary Silber and George Zoldak, tbe plaintiffs in error. In September, 1924, under the constitution, rules, and regulations of tbe society, tbe decedent changed tbe beneficiaries named in tbe policy, and in a new policy issued named as bis sole beneficiary one Regina Projanowski, a daughter, for tbe full amount of tbe policy, to wit, $1,000.

Tbe insured died March 25, 1925, and under tbe provisions of tbe poliey tbe daughter, as beneficiary, made necessary proof of death and established her right to tbe proceeds of tbe insurance, but it became necessary on account of tbe conflicting claims growing out of the change in beneficiary to begin an action in tbe municipal court to obtain the $1,000 by the recovery of a judgment therefor. By reason of conflicting interests, as above mentioned, tbe insurance company by interpleader paid tbe $1,000 due on tbe policy into court, there to await tbe decision of the court as to whether the last beneficiary was entitled to recover.

In this suit all parties interested in tbe sum due under tbe policy, and in custody of tbe court, submitted their claims, and upon them the issues were made up and a judgment rendered in favor of tbe last beneficiary, Regina Projanowski, who was designated as tbe sole beneficiary in tbe policy sued upon. Thereupon, under the order of tbe court, tbe $1,000 was paid to tbe plaintiff. Said cause remained unreversed, unmodified and unvacated, and no proceedings in error whatsoever were bad. Therefore tbe judgment remained final.

Subsequently, a second suit, tbe case at bar, was begun to recover on tbe first policy in favor of the beneficiaries mentioned therein, on tbe ground that the issue of insanity, at the time of the change in the beneficiary, was not raised in the first proceeding. It is claimed that if such an issue had been raised, the change in the beneficiary would have been held to be null and void. The issue in the former suit was the invalidity of an alleged assignment instead of a change of beneficiary.

It appears that all the parties to the first suit were aware of the condition of insanity, but for some reason it was not raised in the trial. There is only one inference, and that is that such an issue, if successful, might defeat the allegations of the assignment, the basis of the claim. However that may be, notwithstanding this knowledge, and participation by all parties interested in the litigation, this question was not raised, and a recovery is now sought by the beneficiaries of the first policy.

In the final analysis of the record it is clear that to all intents and purposes there was but one contract, and between two parties, to wit, the insurer and the insured. The rights of the beneficiaries would accrue only upon the decease. It is a well-settled proposition of law that res adjudicate/, applies to all judgments affecting the same issues and the same parties and growing out of the same transaction, and this principle applies even though some issues were not raised in the proceedings. The courts go so far, however, as to hold that all issues which might have been properly raised and were not raised do not change the proposition, because a party defending is bound to set up all matters which are strictly matters of defense, and when he does not do so he cannot retry the same issues in a new and independent action.

This principle was decided in Swensen & Sears v. Cresop, 28 Ohio St., 668. The first paragraph of the syllabus reads:

“A party defending is bound to set up all matters which are strictly matters of defense, and if he omit to do so, he cannot afterward relitigate those same matters in a new action.”

In Kunneke v. Mapel, 60 Ohio St., 1, 53 N. E., 259, we find a similar holding, and in Strangward v. American Brass Bedstead Co., 82 Ohio St., 121, 91 N. E., 988, the second paragraph of the syllabus reads:

“When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the case.”

We find similar authority in the case of Mengert, Trustee, v. Brinkerhoff; Sr., 67 Ohio St., 472, 66 N. E., 530.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Levine, P. J., and Vickery, J., concur.  