
    Schram v. The City of Cincinnati.
    
      Agreed statement of facts as special verdict — Adjudication of case upon demurrer to reply — Res adjudicada — Two causes pleaded in former action — One erroneously excluded and other determined — Error not prosecuted from either — Damages for change of street grade — Lateral support and ingress and egress.
    
    1. Where a cause Is submitted to the court upon demurrer to a reply and at the same time counsel for the parties agree upon a statement of facts and submit same to the court as an aid in determining the demurrer, the statement of facts will be treated as in the nature of a special verdict, and, although the cause is one properly triable by jury, and a jury is not expressly waived, the demurrer will search the Tecord and the court may properly dispose of the entire controversy.
    2. Where a suit at law for damages pleads one cause of action involving two elements of damage, and issue is joined thereon and trial had, and upon such trial the court rules that one of the elements is proper, and erroneously rules that the other is improper and not a basis of recovery, and withholds evidence of same from the jury and instructs the jury to limit Its inquiry to one element only, and judgment is entered for plaintiff on one element only and error is not prosecuted therefrom, the doctrine of res adjudicata applies.
    (No. 17198
    Decided June 27, 1922.)
    Error to the Court of Appeals of Hamilton county-
    The parties occupy the same relation in this court as in both lower courts, the judgments having been in favor of defendant. The petition filed in the trial court is based upon a claim for damages to real estate situate on Elberon avenue, Cincinnati, Ohio, resulting from a change in the established grade of the street, whereby the street level was reduced from three to seven feet, thereby not only interfering with ingress and egress from plaintiff’s lot, but also destroying a retaining wall on the lot line of the property, which wall had theretofore given lateral support to the premises, and upon removal of which support the ground slipped and the buildings and improvements were totally destroyed. No claim was made for damages to ingress and egress. The damages were solely based upon destruction of the wall, the removal of the lateral support, and the consequent destruction of the buildings and other improvements. The petition was filed April 29, 1915. It contained no allegations as to the date of the change of the established grade, or the date of the destruction of the improvements. To this petition an answer was filed, alleging that the improvement was in fact made in 1909, and that in 1912 a suit was brought claiming not only damages to ingress and egress but also damages for the destruction of the improvements, and alleging further that in this former suit the issues were fully made up, the cause submitted to a jury, verdict returned in favor of the plaintiff, and judgment entered thereon and paid. The answer alleges that it was the same change of grade, the same premises, and that the improvements alleged to have been destroyed were the same improvements as covered in the pending suit. The answer therefore claimed a former adjudication of the controversy. To this answer a reply was filed which contained the following allegations: “This plaintiff denies that the acts and things complained of in her petition as having been done by the defendant are the same acts and things complained of by said plaintiff as having been done by the defendant, the City of Cincinnati in case No. 150595, Common Pleas Court of Hamilton county, Ohio, wherein this plaintiff was plaintiff and the defendant was defendant.” In order to determine the question of res adjudicaba a demurrer was filed to the reply, and the parties agreed upon a statement of facts, and the demurrer with the agreed statement of facts was sub- - mitted to the court. The trial court determined the demurrer in favor of the defendant, and plaintiff not desiring to further plead the petition was dismissed. The usual steps were taken to perfect and allow a bill of exceptions, embodying the agreed statement of facts, and error was prosecuted to the court of appeals. That court treated the proceeding as a hearing upon the merits upon the issue of res adjudicaba— as a hearing upon an agreed statement of facts, and found no error in the judgment of the court of common pleas and affirmed the judgment.
    
      Mr. Herman P. Goebel, for plaintiff in error.
    
      Mr. Saul Zielonka, city solicitor, and Mr. F. K. Bowman, assistant city solicitor, for defendant in error.
   Marshall, C. J.

Two questions are presented to this court for determination: first, whether the court of common pleas properly disposed of the issue of res adjudicaba and whether the plaintiff was denied the right of jury trial upon that issue; second, whether the doctrine of res adjudicaba does apply. These questions will be discussed separately.

First: Was the action of the court of common pleas regular? It seems quite clear that the court of common pleas had under consideration a demurrer to the reply. It seems equally clear that the allegation in the reply above quoted raised a question of identity of the subject-matter. This was an issue of fact which was proper for the determination of a jury. It appears from the bill of exceptions on file, however, that the parties desired to have the entire issue of res adjudicata determined in advance of other questions and to facilitate that inquiry agreed upon a statement of facts. While it does not appear that a jury was at any time expressly waived, the submission of an agreed statement of facts left nothing for the determination of a jury, because it is elemental that a jury is only for the purpose of passing upon facts. By agreeing to the facts and submitting them to the court in connection with the argument of the demurrer to the reply, counsel will not be heard at this time to complain of irregularity, but will be held to an observance of the well-established rule that an agreed statement of facts covering any issue should be treated as a special verdict, leaving to the court only the determination of the law applicable to a special verdict. (Clinton Bank of Columbus v. Ayres & Neil, 16 Ohio, 282.) Although the demurrer was filed only to the reply, the demurrer brought before the court all the pleadings in the case and searched the entire record, and the parties having agreed upon the facts pertaining to that issue the trial court was fully authorized to determine the issue and enter final judgment. There was therefore no irregularity on the part of the trial court.

Second: Does the doctrine of res adjudicata apply? It is admitted that there was a former trial between the same parties, and both lower courts have found that there was an identity of the subject-matter. This court will not review or weigh evidence to determine whether the findings of the lower courts were justified, but the discussion of the case in this court will be upon the theory that those findings are finally established. In the brief of counsel for plaintiff in error it is conceded that the damages alleged in the first and second suits were caused by the same change of grade, that the verdict rendered in the first suit covered the damages to ingress and egress, and that the amount of the verdict was paid. It is further admitted that no error was prosecuted from the judgment in the first suit. The question remaining for determination arises out of the fact that upon the hearing in the first suit the court ruled as matter of law that the plaintiff was not entitled to recover for damages to her improvements, that this ruling of the court was erroneous, and that there was therefore no determination of the damages to the improvements. The agreed statement of facts clearly shows that all evidence offered by the plaintiff in the first suit tending to prove damages to the improvements was rejected, and in the charge of the court to the jury plaintiff was limited to the damages caused by obstruction to ingress and egress. The agreed statement of facts shows that no determination of damages was ever made by the jury, but it also shows that a determination of the legal question of her right to damages for injuries to her improvements was submitted to and determined by the court. The plaintiff was apparently satisfied at that time with the action of the court and the judgment in her favor, because tbe amount of the judgment was paid by defendant and received by plaintiff and no error prosecuted therefrom. The doctrine of res adjudicada is much broader in its application than necessary to a determination of the question involved. The rule is well settled that an adjudication in one action between the same parties is final and conclusive not only as to the matter actually determined but as to every other material issue which the parties might have litigated, incident to or connected with the subject-matter of the litigation. In the instant case it is not a question of what might have been determined, because it appears from the agreed statement of facts that the issue as to damages to improvements was in fact determined. A careful study of the two petitions leaves no doubt that in both pleadings claim was made for damages to the improvements and that an answer to the first petition clearly made an issue upon that claim and that the court determined, whether rightfully or wrongfully, that she was not entitled to recover upon that ground. Portions of the testimony adduced in the first hearing were incorporated in the agreed statement of facts, which testimony discloses that the injury had already occurred and that the property was already practically destroyed at the time of the former suit. It therefore leaves no possible ground for the claim that the actual damages to the improvements occurred since the determination of the first suit.

It has been several times decided by courts of Ohio that when a demurrer to a petition had been sustained and the cause dismissed on the ground that no cause of action was stated, a subsequent suit involving the same facts in which a cause was well pleaded did not come within the rule of res adjudicates. Those cases are now urged by counsel for plaintiff as applying to this controversy, but it seems quite clear that the principle of those cases does not apply here, because in the first suit a good cause was pleaded and submitted upon evidence and disposed of by the judgment of the court, and the courts below have found in the second suit as a fact that there is an identity of subject-matter between the two. If counsel’s contentions are sound then the doctrine would never apply to a directed verdict and such cases would be interminable.

Judgment affirmed.

Johnson, Hough, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  