Although the ruling of the Oklahoma Supreme Court went to the point of res judicata which is not relevant to the instant case, the unmistakable inference to be drawn from this decision is that even with notice having been given coupled with a final judgment rendered against the indemnitee railroad, the railroad still has the burden of proving that the indemnitor breached its indemnity agreement before responsibility attaches. 1920, 78 Okl. 150, 189 P. 363. Under a general clause of indemnity such as here involved the sending or not sending of notice has no effect upon the substantive legal rights between the parties. Naturally, you must distinguish between the situation involved here where no reference is made to notice and one wherein the contract expressly requires notice, or where one of the express covenants in the agreement calls for the indemnitor to step in and defend any action against the indemnitee in a specified class of cases such as was in view in the Traders & General Ins. Co. case.
In other words, the question of whether the party against whom recovery is had is indemnified is still open to dispute, notwithstanding the recovery. See, generally, in this connection Saxon v. National Surety Co., 129 Okla. 300, 264 P. 885; Missouri, K. T. R. Co. v. Ellis, 78 Okla. 150, 189 P. 363; Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712. However, it is generally agreed that any question determined in the action against the party claiming to be indemnified which was actually an issue and necessary or material to a determination of the action cannot be asserted to have been improperly determined by an indemnitor who was notified of the pendency of the action.
"Where a surety is sued with his principal, or where he is sued alone and notifies his principal, the recovery against the surety is the measure of damages in an action by surety against principal for money paid to his use, and the record of such recovery is conclusive against the principal in such action." In Missouri, K. T. R. Co. v. Ellis, 78 Okla. 150, 189 P. 363, it is said: "One who is required either by law or contract to protect another from liability is bound by the result of the litigation to which such other is a party, provided the former had notice of such litigation and an opportunity to control its proceedings.
"Sixth. If the person indemnifying, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceedings against the person indemnified or is not allowed to control its defense, judgment against the latter is only presumptive evidence against the former." In the case of Missouri, K. T. R. Co. v. Ellis et al., 78 Okla. 150, 189 P. 363, the first paragraph of the syllabus is in part as follows: "One who is required by law or contract to protect another from liability is bound by the result of the litigation to which such other is a party, provided the former had notice of such litigation and an opportunity to control its proceedings; and a judgment against a party indemnified is conclusive in a suit against his indemnitor only as to the facts therein established.