
    McKinney et al. v. Townsend et al.
    (No. 74 CV 402
    Decided June 25, 1975.)
    Common Pleas Court of Greene County.
    
      Mr. Marshall J. Massie, for plaintiff.
    
      Mr. Jerome Q. Mens, for defendant.
   BayNes, J.

A motion for summary judgment was filed on defendants’ behalf. It is claimed that the judgment rendered in the case of Shupert v. McKinney (a) estops Me-Kinney from relitigating the issues of her negligence adjudged in the Shupert case and (b) estops McKinney from denying that her negligence proximately caused or contributed to her damage which she seeks to recover from defendant Townsend in the present action.

The motion is presented on the pleadings, an exhibit, being the charge to the jury and its verdict in the Shupert case, plaintiffs’ affidavit which merely parrots the allegation of the complaint, the memorandum and oral argument of counsel.

We have not been cited to a case, nor have we found one, raising the question of an estoppel between former co-defendants in a subsequent case between them where the basis of both actions is negligence.

Defendants attempt to distinguish cases on which they rely on a judgment by estopped theory as distinguished from cases in which plaintiffs rely as merely being a judgment bar. We do not analyze the cases so as to support defendants ’ contention.

Defendants reason a verdict finding McKinney and Townsend jointly negligent and liable to Shupert for injuries also joined and determined issues of negligence and proximate cause between McKinney and Townsend for any injuries either or both may have suffered. This reasoning is invalid for no claim of McKinney against Townsend was asserted, controverted or decided in the Shupert case. There is no statute or rule of law which required, or perhaps permitted, such claim to have been asserted.

In Koelsch v. Mixer (1894), 52 Ohio St. 207, 39 N. E. 417, where plaintiff had been held solely liable in a prior suit by a third party on a bond executed by plaintiff and defendant’s decedent, it was held that the former judgment was not conclusive as between the signers of the bond. It was further observed that they were not adversary parties in the former suit so that primary issues between them as co-defendants had not been presented or decided.

The Koelsch case was cited and relied on in Fidelity & Casualty Co. of New York v. Federal Express (C. A. 1938), 99 F. 2d 681. This case involved a prior recovery by a third party on an indemnity agreement. In discussing why the co-defendants were not adverse it was pointed out neither could have appealed an adverse judgment against the other in the case where they had been co-defendants.

Mansker v. Dealers Transport Co. (1953), 160 Ohio St. 255 and State, ex rel. Ohio Water Service Co., v. Mahoning Valley Sanitary District (1959), 169 Ohio St. 31, relied on by defendants, do not apply to the facts in the instant case.

Beyond a doubt the operative facts of the collision are “locked in” by the testimony adduced in the Shupert trial. Without a transcript of the evidence it’s impossible to determine, if it could be with the transcript, whether, irrespective of McKinney’s negligence respecting Shupert, Townsend was negligent with respect, to McKinney and if that negligence was a proximate cause of any injuries suffered by McKinney subsequent to McKinney’s collision with Shupert. Or, further, whether McKinney’s negligence, as a matter of law, caused or contributed to cause injuries she claims to have suffered; whether such negligence related to Shupert or Townsend or both.

. Defendants’ motion is overruled, judgment accordingly.

Motion overruled.  