Ohio Casualty Ins. Co. v. Gordon

28 Citing cases

  1. R.D. Wood Company v. Phoenix Steel Corporation

    327 F.2d 921 (3d Cir. 1964)   Cited 1 times

    Therefore as non-adversary, co-claimants seeking recovery against the shipowner, they were not bound by the judgment therein as between themselves, since their rights and liabilities inter se were not put in issue and determined. Bluefields S.S. Co. v. United Fruit Co., 243 F. 1, 10-11 (3 Cir. 1917); Ohio Casualty Ins. Co. v. Gordon, 95 F.2d 605, 609 (10 Cir. 1938); Greer v. Stanislau, 118 F. Supp. 494 (E.D.Pa. 1953); Chikotas v. American Buslines, Inc., 192 F. Supp. 762 (E.D.Pa. 1960). Though we are agreed that the trial judge was not controlled by the limitation findings, the record unmistakably reveals the error in that respect to have been harmless.

  2. Union Pacific Railroad Co. v. United States

    292 F.2d 521 (Fed. Cir. 1961)   Cited 5 times

    See Southern Pacific R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355, and Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898. That it applies in suits where the parties are joint defendants is well supported by the decisions of the Courts of Appeals of several of the Circuits. See National Bondholders Corp. v. Seaboard Citizens Nat. Bank, 4 Cir., 110 F.2d 138; Ohio Cas. Ins. Co. v. Gordon, 10 Cir., 95 F.2d 605; United States Fidelity Guaranty Co. v. Haggart, 8 Cir., 163 F. 801. Whether or not the United States had failed to comply with the regulations of the Interstate Commerce Commission was put in issue in the District Court.

  3. Lazarus v. Manufacturers Casualty Ins. Co.

    267 F.2d 634 (D.C. Cir. 1959)   Cited 3 times

    Thus Rubinstein was out of the case, and judgment in his favor followed. It seems to me that Rubinstein in the Hudson case was entitled to take the very steps disclosed by the pleadings, as above noted, under Rule 13(g), and see Collier v. Harvey, 10 Cir., 1949, 179 F.2d 664, 668; cf. National Bondholders Corporation v. Seaboard Citizens Nat. Bank, 4 Cir., 1940, 110 F.2d 138, 144; Ohio Casualty Ins. Co. v. Gordon, 10 Cir., 1938, 95 F.2d 605, 609. Now, when the Company in this case pleads res judicata and asserts other errors, my colleagues find them "irrelevant." Of course they are, if it be the law that despite the terms of the contract, the Company is an insurer of Lazarus in any event.

  4. Dobbins v. Barnes

    204 F.2d 546 (9th Cir. 1953)   Cited 3 times

    " City Bank of Wheeling v. Rhodehamel, 4 Cir., 223 F. 979, 983. "The reason for the rule is that one should not be bound by a judgment except to the extent that he or some one representing him had an adequate opportunity to litigate the issue adjudicated with the party who seeks to invoke the judgment against him." Ohio Casualty Ins. Co. v. Gordon, 10 Cir., 95 F.2d 605, 609. This rule, stated in Freeman on Judgments, 5th Ed., Vol. 1, § 422, is followed in California, Standard Oil Co. v. John P. Mills Organization, 3 Cal.2d 128, 43 P.2d 797, and is recognized in Pennsylvania, Jordan v. Chambers, 226 Pa. 573, 75 A. 956; Simodejka v. Williams, 360 Pa. 332, 62 A.2d 17. Although sometimes parties arrayed as co-parties on the record may nevertheless be adversaries in fact as to an issue, Ohio Casualty Ins. Co. v. Gordon, supra, yet such cannot possibly be the case here for the Tax Court would be without jurisdiction to entertain any such issue or controversy as between these two parties.

  5. Fidelity Cas. Co. of New York v. Fed. Express

    136 F.2d 35 (6th Cir. 1943)   Cited 37 times
    Recognizing that co-parties may, in fact, be adversaries on an issue

    Co-parties who are not adversaries, may be bound by a judgment in a subsequent controversy between each other where they, in fact, occupied, in the prior trial, the attitude of adversaries, or where some finding of fact is made in the first suit which is an essential element in the subsequent claim or action. National Bondholders Corp. v. Seaboard Citizens Nat. Bank, 4 cir., 110 F.2d 138. On the question whether parties are bound by a judgment, the formal arrangement of parties on the record is unimportant, so that if co-parties on the record were, in fact, adversaries on an issue, and the issue was actually litigated, and they had full opportunity to contest it with each other, either on pleadings between themselves and the plaintiff, or on cross-pleadings between themselves, co-parties are concluded by adjudication of that issue in a subsequent controversy between each other. Ohio Casualty Ins. Co. v. Gordon et al., 10 Cir., 95 F.2d 605. Insofar as the rights or obligations of co-parties inter se are dependent on their rights or obligations toward their common adversary, the judgment adjudicating the latter is conclusive upon co-defendants in subsequent litigation between them. Freeman on Judgments, Sec. 425. See, also A.B.C. Fireproof Warehouse Co. v. Atchison, T. S.F.R. Co., 8 cir., 122 F.2d 657. The above rule is not contrary to that followed in Ohio.

  6. Utilities Ins. Co. v. Smith

    129 F.2d 798 (10th Cir. 1942)   Cited 10 times

    " Ohio Casualty Ins. Co. v. Gordon, 10 Cir., 95 F.2d 605; Henderson v. United States Radiator Corporation, 10 Cir., 78 F.2d 674, 675. The Insurance Company further contends that under the limitations and conditions of the policy it was under no obligation to Burbridge to pay the judgment recovered by Smith, and, therefore, Smith could not recover against the Insurance Company in a garnishment proceeding.

  7. Traders General Ins. Co. v. Rudco Oil Gas

    129 F.2d 621 (10th Cir. 1942)   Cited 75 times
    In Traders & General Insurance Co. v. Rudco Oil & Gas Co., 129 F.2d 621, 628 (10th Cir. 1942), the Tenth Circuit, applying Oklahoma law, stated "before [an insurer] may interpose the voluntary settlement [by insured] as a bar to recovery upon the policy, it must be shown that it acted, not alone in furtherance of its own interest, but it must also appear that it acted in good faith and dealt fairly with the assured."

    Douglas v. United States Fidelity Guaranty Co., supra. The right to control the litigation in all of its aspects carries with it the correlative duty to exercise diligence, intelligence, good faith, honest and conscientious fidelity to the common interest of the parties. Boling v. New Amsterdam Casualty Co., supra; Ohio Casualty Insurance Co. v. Gordon, 10 Cir., 95 F.2d 605, 610; Maryland Casualty Co. v. Cook-O'Brien Construction Co., 8 Cir., 69 F.2d 462, 464; Maryland Casualty Co. v. Elmira Coal Co., 8 Cir., 69 F.2d 616, 618, and Brassil v. Maryland Casualty Co., supra. See Vol. 5, Couch on Insurance, Section 1165b.

  8. A.B.C. FP. WHSE. v. ATCHISON, T. S.F. RY

    122 F.2d 657 (8th Cir. 1941)   Cited 8 times

    It is our view that, under the statute of Missouri, quoted above, and the decisions of its courts, a judgment is res adjudicata between co-defendants of any controlling fact upon which it is based, in rights and relationships between such co-parties arising out of or connected with the matter in litigation, where they have actually assumed the position of adversaries with respect to such fact throughout the proceeding, by expressly placing it in issue in their pleadings, whether answer or cross-petition, and contesting it on the trial; where they have had the opportunity for a full and fair trial and submission on the merits; where the result of the determination of the litigation by the court or jury is to establish in the trial the legal existence of the fact, as contended for by the one and as denied by the other; and where no new legal situation is presented in the subsequent litigation attempted between them. Compare the expression in Ohio Casualty Insurance Co. v. Gordon, 10 Cir., 95 F.2d 605, 609: "But * * * if co-parties 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 adjudication in the Train case that the warehouse company still was in control of the property, and that the fire was due to the negligence of its employees in preparing the goods for shipment, necessarily would be conclusive, for purposes of this suit, as to all elements of damage claimed to have resulted from the fire, since it was determinative of the foundational right for the single cause of action that could exist under the bill of lading.

  9. American Automobile Ins. Co. v. Freundt

    103 F.2d 613 (7th Cir. 1939)   Cited 114 times
    In American Automobile Ins. Co. v. Freundt, 7 Cir., 103 F.2d 613, 619, the same doctrine was enunciated by the Circuit Court of Appeals of the Seventh Circuit, the court saying with respect to the Quarles case: "We are convinced of the soundness of the reasoning and conclusion of the Fourth Circuit Court of Appeals in the foregoing case.

    The opinion discloses that the material consideration was that all the questions presented in the declaratory suit could not have been litigated in prior actions. 10 Cir., 95 F.2d 605, 610. The statements of the Court of Appeals of the Fifth Circuit in its opinion in the case of Carpenter et al. v. Edmonson, support plaintiff's contention in the instant case.

  10. Ohio Casualty Ins. Co. v. Marr

    98 F.2d 973 (10th Cir. 1938)   Cited 24 times

    There must be a justiciable question, and it must touch the relations of parties having adverse legal interests. Ætna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Ohio Casualty Ins. Co. v. Gordon, 10 Cir., 95 F.2d 605; Central Surety Ins. Corporation v. Caswell, 5 Cir., 91 F.2d 607; Associated Indemnity Corporation v. Manning, 9 Cir., 92 F.2d 168; Farm Bureau Mutual Automobile Ins. Co. v. Daniel, 4 Cir., 92 F.2d 838; Carpenter v. Edmonson, 5 Cir., 92 F.2d 895; Western Casualty Surety Co. v. Beverforden, 8 Cir., 93 F.2d 166; United States Fidelity Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560. The policy in suit exacts two written notices as a condition precedent to liability.