#### Leonard, Appellee, *v.*Murdock et al.; The Ocean Accident & Guarantee Corp., Ltd., Appellant.

(No. 30578

Decided July 24, 1946.)

*107*Messrs. Williams, Stanley & Andrews,*for appellee.

*Messrs. McKeehan, Merrick, Arter do Stewart, Mr. C. M. Horn*and *Mr. Comus M. Beard,*for appellant.

Bell, J.

The trial court in the instant case decided two propositions: (1) That whether the operation of the tractor by. Murdock at the time of the collision on October 17, 1941, was within the coverage of the insurance policy issued by The Ocean Accident & Guarantee Corporation, Ltd., was a question of fact, and (2) that the judgment in the case of *Leonard v. Glenn Cartage Co.*was not a bar ¿o the prosecution of the instant case.

The Court of Appeals modified (as hereinbefore stated) and affirmed the judgment of the trial court. The only factual difference between the instant case *108and the ease of *Wood*v. *Vona, ante,*91 this day decided, is that here at the time of the collision the tractor was being operated to the home of *Murdoch*for repairs, while in the *Wood, case*the tractor was being operated from the repair shop to the home of Yona after repairs had been completed. No nsefnl purpose would be served by repeating here what has been already said in the *Wood case*upon the subject of coverage. For the reasons stated in the *Wood case*the contention of Ocean that the operation of the tractor at the time and place of collision, as a matter of law, was not within the coverage of the policy cannot be sustained.

Upon the second question Ocean contends:

“The judgment for defendant in *Elizabeth Leonard*v. *Glenn Cartage Company*established that Murdock was not using his truck on that company’s business at the time of the accident. This is essentially the issue presented in the case at bar and the judgment in said cause is an adjudication of that issue adverse to Elizabeth Leonard, the plaintiff in both cases. It is an estoppel by judgment and a bar to the present action. ’ ’

It is claimed that the doctrine of *res judicata*should be applied in the instant case. Without entering into a lengthy discussion of that subject suffice it to say that the case of *Leonard*v. *Glenn Cartage*sounded in tort, the present action sounds in contract, the parties in the two cases are not the same, the issues are not the same, different proofs were required to sustain the two actions, and the controversy sought to be precluded, to wit, the liability of Ocean Accident & Guarantee Corporation, Ltd., upon its policy, was not tried or determined in the *Glenn Cartage case.*

In 23 Ohio Jurisprudence, 962, Section 730, we find this definition of the rule:

“The judgment of a court of concurrent jurisdiction directly upon' the point is, as a plea in bar or as evi*109dence, conclusive between the same parties, on the same matter, directly in question in another court. *But neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of cmy matter incidentally cognisable, nor of any matter to be inferred by argument from the judgment.”*(Emphasis supplied.) See *Lessee of Lore v. Truman,*10 Ohio St., 45; *Rompe & Son*v. *Ravens,*68 Ohio St., 113, 67 N. E., 282; *Norwood*v. *McDonald et al., Admrs.,*142 Ohio St., 299, 52 N. E. (2d), 67.

We are persuaded that the doctrine of *res judicata*has no application here. In our opinion the Court of Appeals did not err in affirming the judgment of the Court of Common Pleas, therefore the judgment of the Court of Appeals should be and hereby is affirmed.

*Judgment affirmed.*

Weygandt, C. J., Zimmerman, Williams and Turner, JJ., concur.

Matthias and Hart, J J., dissent.

Hart, J.,

dissenting. In my view, the decision in this case should not be controlled by the holding of this court in the case of *Mitchell, Admx.,*v. *Great Eastern Stages, Inc.,*140 Ohio St., 137, 42 N. E. (2d), 771, 141 A. L. R., 624, because of difference in operative facts.

As required by the statute, Section 614-115, General Code, the policy of insurance here in question indemnified the Glenn Cartage Company as a private motor carrier “against loss sustained by reason of * * * injury to * * * persons * * *• resulting from the negligence of the insured, while operating any vehicle * * * in * * * private motor carrier service,” and by special endorsement, extended such coverage “to all automobiles and trailers * * * hired by the named in*110sured * * * only when such * * * hired equipment is being operated, exclusively in the interest of the naiüed insured.” Here the truck was hired by the Glenn Cartage Company but it was owned by James A. Murdock whose obligation under the contract of hiring* was to maintain the truck and keep it in repair at his- own expense.

When the accident occurred, the truck was not being operated in transporting property or in furnishing such transportation service, but was being operated by' Murdock, the owner, after he had been refused employment in transportation service of the cartage company, for his own sole purpose of going to his home with a mere possibility that he might, in the future, make repairs on his truck which again was his obligation and responsibility.

In fact, he had been refused employment, and to all intents and purposes had been discharged for cause for that day so far as his service for the cartage company was concerned. How could he after the refusal to give bim a load and after he had moved away from the zone of such service be said to be in transportation service for the cartage company at the time of the accident?

The' ordinary automobile indemnity insurance policy provides coverage for a specific car wherever operated by the insured or one operating it with the permission or consent of the insured, but the type of policy required to be given by the Public Utilities Commission and here given is a limited policy giving coverage only for the negligence of the operator while or-when any car is being operated in motor-transportation-company service or private-motor-carrier service; and when the operator is an agent, employee or independent contractor he must be engaged in transporting persons or property or providing or furnishing such transportation service for the insured.

*111The term or condition in the policy which provides that liability in such cases may be based only upon a finding that the negligence of the operator caused the injury while he was “operating any vehicle * * * in * * * private motor carrier service” is a most important limitation in such policy and, to warrant a recovery thereunder, compliance with the condition must be established by the evidence. No such evidence appears in the record, and for that reason the judgment should be reversed. '

Matthias, J., concurs in the foregoing.dissenting opinion.