
    Profitt et al. v. McQuiston et al.
    [Cite as Profitt v. McQuiston, 9 Ohio Misc. 43.]
    (No. 124538
    Decided November 4, 1966.)
    Common Pleas Court of Montgomery County.
    
      Mr. Jerome B. Bohman, for plaintiffs.
    
      Messrs. Altich & McDaniel, for defendants.
   Mills, J.

This cause is before the court upon the motion of plaintiffs for reconsideration of a former decision of the court sustaining the motion to dismiss of defendant for the reason that said ruling was based upon the fact that the merits of this action had been decided by ruling in Case No. 122697, an action for declaratory judgment.

On June 19, 1964, plaintiffs, Viola Ann Profitt and Jerry M. Profitt, husband and wife, filed an action against Judith S. McQuiston and the Nationwide Mutual Insurance Company, defendants, setting forth an accident between an automobile driven by Judith S. McQuiston and an automobile occupied by Viola M. Profitt.

Plaintiffs charge the defendant, Judith S. McQuiston, with negligence.

On July 18, 1964, defendants filed a demurrer to the action of the plaintiffs for the reason there is another action pending between the parties for the same cause, said cause being filed June 26, 1963, and being Case No. 122697 on the docket of this court, for declaratory judgment and for the court to decide whether or not a certain purported release signed by Viola Ann Profitt and Jerry M. Profitt was a good and valid release to the Nationwide Mutual Insurance Company. The court withheld a decision on the motion to dismiss filed by defendants until Case No. 122697 was decided.

Thereafter Case No. 122697 was heard by Judge Cecil Edwards of this court on April 15,1965, and the following judgment entry was filed:

‘ ‘ This cause came on to be heard on the pleadings, stipulation of facts and memoranda of the parties. Upon due consideration thereof, the court finds that the requirements of Sections 2721.01 to 2721.15, Revised Code, for a declaratory judgment have not been met by the plaintiff; and that the release in question is a good and valid release. It is, therefore, hereby ordered that judgment is entered for the defendants and against the plaintiff. Plaintiff’s exceptions are noted.”

A copy of the “Agreement and Release” signed by the plaintiffs to the Nationwide Mutual Insurance Company, was attached to the answer of the defendants in Case No. 122697, and so far as applicable here reads:

“In consideration of the promise of payment to us by the insurance company accepting this agreement, of compensation in accordance with the family compensation schedule set forth below (not copied here) I, we, for ourselves, our heirs, executors, administrators and assigns, do hereby release and forever discharge Judith McQuiston and any and all other persons, firms and corporations, including the company accepting this agreement (except as to any liability which such company may have under any uninsured motorists coverage or equivalent coverage), of and from all actions, causes of action, claims, demands, damages, costs, loss of services, expenses, and all consequential damage on acount of, or in any way growing out of, any and all known and unknown personal injuries and death and property damage resulting or to result from an accident which occurred on or about the 23rd day of June, 1962, at or near Dayton, Ohio.

“We under stand that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of the persons, firms, and corporations hereby released by whom liability is expressly denied.

“This agreement and release contains the entire agreement between the parties hereto, and the terms of this instrument are contractual and not a mere recital.

“It is further agreed that all parties to this instrument have carefully read the contents thereof and the signature below are the voluntary and free act of each.

“In witness whereof we have hereunto set out hands and seals this 28th day of August, 1962.

“In the presence of (Sgd) Violla Profitt

Gene Stone Jerry M. Profitt

“Accepted by: Nationwide Mutual Insurance Company.” On December 2, 3 965, counsel for the parties in Case No. 124538, signed the following stipulation:

“It is stipulated by the parties hereto, through their attorneys, that the record of the proceedings and all papers filed in Case No. 122697 in the Common Pleas Court of Montgomery County, Ohio, entitled “Viola Ann Profitt, Plaintiff, vs. Judith S. McQuiston and Nationwide Mutual Insurance Co., Defendants,” may be received into evidence by this court for the purpose of deciding defendants’ motion to dismiss. Further, the parties hereby waive oral hearing on the said motion.”

On August 12, 1965, defendants filed a motion in Case No. 124538 to dismiss plaintiff’s petition and for final judgment, and the court having sustained said motion, the following entry, duly signed by counsel for plaintiff and counsel for defendants, was filed in Case No. 124538 on October 1, 1965:

“This cause came on to be heard upon the motion of the defendants for dismissal of plaintiffs’ petition and for final judgment.

“The court, being fully advised in the premises and after due consideration of this matter finds the motion to be well taken, and it is, therefore, ordered, adjudged and decreed that plaintiffs’ petition be dismissed and final judgment is entered in favor of the defendants and against the plaintiffs. Costs to be paid by plaintiffs. Exceptions noted.”

Thereupon on October 15, 1965, counsel for plaintiffs requested the court reconsider its decision and requested the right to submit memorandum and have hearing on said motion as soon as possible.

The motion for reconsideration was filed by counsel for plaintiffs on September 27, 1966. However, on October 15, 1965, an entry was submitted by counsel for plaintiff, whieh reads:

‘ ‘ This matter having come on to be heard upon oral application of the plaintiffs and upon due consideration and for good cause shown, the court does hereby vacate the judgment previously granted in this case and does hereby allow the plaintiffs to file an application for reconsideration of its prior decision granting judgment against the plaintiffs.

“Therefore, the court hereby orders that the judgment filed in this action be vacated and further orders the plaintiffs file their motion for reconsideration forthwith.”

It is this motion for reconsideration which is before the court, and it is the court’s opinion that the question at this time is whether or not the final judgment in Case No. 122697 was res judicata or estopped plaintiff herein from proceeding further in this action, Case No. 124538. Case No. 122697 was never taken to the Court of Appeals and now remains final.

In the case of Hixson v. Ogg, 53 Ohio St. 361, the syllabus reads:

“Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subsequent action, whether the second action is upon the same or a different subject matter from the first. In this respect it is immaterial that one of the actions may have been ex contractu and the other ex delicto.”

The declaratory judgment action sought to avoid the release on the grounds that the words of the release did not constitute a release and that the drafts issued by defendant Nationwide were returned to it by plaintiff without being cashed. In the case at bar, the plaintiffs attempt to avoid the release by again relying on the fact of nonacceptance of the drafts and also by alleging additional facts in an attempt to show fraud. The plaintiffs eonld have included the claim of fraud in the original action on the release and the failure to do so bars them from presenting those facts as reasons for avoiding the release in this action. See First National Bank of Cincinnati v. Doyle, 92 Ohio Law Abs. 385, syllabus 2, which reads:

“A final judgment, rendered by a court of competent jurisdiction on the merits, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action between the same parties or their privies, even though the two actions differ in form. A party cannot, by varying the form of action or adopting a different method of presenting his case, escape the operation of the principle that one and the same causes of action shall not be twice litigated. Where either of two remedies is equally available to vindicate the same right, the judgment in an action employing one of them will bar a resort to the other.”

See also The Covington and Cincinnati Bridge Co. v. Sargent, 27 Ohio St. 233, syllabus 1, which reads:

“In a judicial proceeding in a court of record, where a party is called upon to make good his cause of action or establish his defense, he must do so by all the proper means within his control, and if he fails in that respect, purposely, or negligently, he will not afterward be permitted to deny the correctness of the determination, nor to relitigate the same matters between the same parties.”

On page 238 of the same case it is stated:

“If a party fails to plead a fact he might have plead, or makes a mistake in the progress of an action, or fails to prove a fact he might have proven, the law can afford him no relief. Where a party passes by his opportunity, the law will not aid him.”

The attempt to plead facts tending to prove fraud in the former proceeding, does not give plaintiffs the opportunity to attack the release for that reason in this action.

The fact that Jerry M. Profitt, while not a party to the previous action, is nevertheless bound by the previous adjudication because he was in privity of contract with Viola Profitt, as one of the parties to the release.

See Quinn v. State, 118 Ohio St. 48, syl. 1, where it is stated:

“Material facts or questions which were in issue in a former suit and were there judicially determined by a court of competent jurisdiction are conclusively settled by the judgment therein so far as concerns the parties to that action and persons in privity with them and cannot be again litigated in any future action between the same parties or privies, and this rule not only applies to what was determined but also as to every other question which might properly have been litigated in the case.”

Jerry M. Profitt’s cause arises only because he is the spouse of Viola Ann Profitt.

See also 23 Ohio Jurisprudence, Section 747, p. 976, citing many cases.

See Babcock & Co. v. Camp et al., 12 Ohio St. 11, 35:

“A decision upon any material point is conclusive, though the subject matter of the two suits is different.”

Freeman on Judgments, Section 253, reads:

“The general principle announced in many cases is that a right, question or fact, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.”

S. Pac. Ry. Co. v. U. S., 168 U. S. 1, reads :

“When a former judgment is raised as a bar in a later action, it is not essential that there be a complete identity as to all the parties in both proceedings; it is only necessary that the persons between whom the judgment is to operate as res judicata should be the same.”

Wright v. Schick et al. (1938), 134 Ohio St. 193, 16 N. E. 2d 321, states:

“Therefore, res judicata or estoppel by judgment may arise as .between codefendants if they represented adverse interests in a formr proceeding as to an issue and such issue was in fact litigated.” Id.

“* * # if COparties on the record were in fact adversaries as to an issue, and such issue was in fact litigated and they had full opportunity to contest it with each other, either upon the pleadings between themselves and the plaintiff, or upon cross-pleadings between themselves, they are concluded by the adjudication of such issue in a subsequent controversy between each other.”

The court, therefore, is of the opinion that the matters and facts in issue in this case are res judicata, and plaintiffs herein are forever barred as against the defendants; and plaintiffs herein are estopped from proceeding further in the case at bar, being Case No. 124538.

Judgment accordingly.  