Petitioner, having paid the judgment affirmed in
George A.
Fuller Co. v. McCloskey, 228 U. S. 194,
recovered indemnity from the respondent upon the ground that the
latter, at the time of the accident, retained its control over the
negligent servant.
Held that, there being sufficient
evidence upon that point to warrant the verdict, petitioner's
judgment should be affirmed.
Held further that the
adjudication in the former case did not estop the petitioner upon
the issue of primary responsibility here presented, as it did not
determine or involve that issue, and respondent had been dismissed
from that case as codefendant before petitioner's evidence therein
was heard; and, further, that such adjudication, had it purported
to include that issue, would not have the force of a precedent,
since, in the present case, there was evidence, absent in the
other, which makes it impossible
Page 245 U. S. 490
to say as a matter of law that respondent did not retain control
of the servant.
The writ of certiorari, when issued to the Court of Appeals of
the District of Columbia, is not limited to cases in which final
judgment has been entered, but only to cases in which the judgment
when entered is final. Jud.Code, § 251. So
held where the
judgment of the Court of Appeals reversed the judgment of the
Supreme Court of the District.
44 App.D.C. 287 reversed.
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a suit brought by the petitioner to recover indemnity
for a judgment that it had to pay in pursuance of the decision of
this court in
George A. Fuller Co. v. McCloskey,
228 U. S. 194.
McCloskey, the plaintiff in the former suit, was injured upon an
elevator through the negligence of Locke, the man in charge of it.
He was at work for the Mackay Company, which was doing some
painting under a subcontract with the defendant, the present
petitioner, which, it was held, as between the parties then
concerned, made the defendant answerable for Locke. The petitioner
had constructed an office building under an agreement with the
owner, Hibbs. The Otis Elevator Company had put in the elevators,
also under an agreement with Hibbs, and furnished the man Locke
upon a somewhat vague understanding with the petitioner, which, the
latter contends, left Locke the servant of the Elevator Company as
between the parties now before this Court. If the petitioner is
Page 245 U. S. 491
right, and the primary duty rested on the Elevator Company, it
may recover in the present suit unless the former proceedings
constitute a bar.
Washington Gas Light Co. v. District of
Columbia, 161 U. S. 316,
161 U. S.
328.
There was evidence fully sufficient to show that the respondent
retained its control at the time of the accident, and the jury
found a verdict for the plaintiff, but the judgment was set aside
by the Court of Appeals on the ground that, although the former
judgment did not make the matter
res judicata, it
concluded the case:
"In view of the adjudicated facts, which were not open to the
consideration of a second jury, there was no such primary liability
on the part of the Otis Company as will support an action for
indemnity."
But there were no facts, whether adjudicated in the former case
or not, that were not open to the consideration of the jury in
this. The Otis Company was joined as a party defendant, it is true,
in the former action, and a verdict was directed in its favor. But
even if the former verdict against the petitioner had gone on the
same issue that was tried in the present case, which was not the
fact, it could not have concluded the petitioner in favor of the
Otis Company, for the reason, if for no other, that the Otis
Company was dismissed from the suit before the petitioner's
evidence was heard.
The former judgment did not decide that the evidence in the
present case showed as matter of law that Locke, who was in the
general service of the Otis Company, was transferred for the moment
to the petitioner. It did decide as matter of law that, as between
the Mackay Company and the petitioner, their agreement left the
petitioner responsible. It had no occasion to decide, and did not
purport to decide, more. Even if it had gone farther, it would have
been
res inter alios as an adjudication, and it would not
have been a precedent, because the evidence in the present case had
additional details which, if meagre,
Page 245 U. S. 492
still made it impossible to say as matter of law that the Otis
Company did not retain control.
It is objected to the writ of certiorari in this case that there
was no final judgment; but the writ, when issued to the Court of
Appeals, is not limited to cases in which final judgment has been
entered, but only to cases in which the judgment, when entered, is
final. Judicial Code, § 251. The words "with the same power and
authority in the case as if it had been carried by writ of error or
appeal to said Supreme Court" express the character of the power,
not its conditions, as the power is granted only when a writ of
error or appeal does not lie.
See Judicial Code, § 240.
Denver v. New York Trust Co., 229 U.
S. 123,
229 U. S. 133.
The decision in
Bruce v. Tobin, 245 U. S.
18, cited for the respondent, is concerned with the Act
of September 6, 1916, c. 448, § 2, 39 Stat. 726, which requires a
final judgment in terms.
Judgment reversed.
Judgment of Supreme court affirmed.
