8065

#### HODGE v. ATLANTIC COAST LUMBER CORPORATION.

1. Judgment — Demubbeb—Bab—Appeal.—All- parties are bound by the construction put on a complaint in passing on a demurrer, not appealed from. Where one ground of a demurrer sustained by the Court, is that the complaint shows that deceased while a licensee or trespasser was injured by accident as a result of the breaking of machinery while used in the ordinary course of its business, which could not have been guarded against; such judgment is a bar to a subsequent action on the same cause of action between the same parties.

2. Amending Complaint. — Relief from allegations construed to destroy the cause of action is by amendment.

3. Reheaking *refined.*

*230Before Gage, J., Georgetown, July, 1910.

Reversed.

Two actions: (1) A. 0._Hodge, admr. of Jno. J. Hodge, against Atlantic Coast Lumber Corporation; (2) A. O. Hodge, adimr. of Howard M. Hodge, against same. Defendant appeals.

*Messrs. Willcox & Willcox, Henry B. Davis*and *LeGrand G. Walker,*for appellant,

cite: Black on Judg., secs. 13, 29, 707; 111 U. S. 4)72; 12 S. C. 539; 20'5 U. S. 122; 91 U. S. 526; 10 Pet. 298; 102 F. 74; 52 Am. D. 537; 38 Am. St. R. 656; 63 Fed. 213; 9 Fed. 481; 62 Fed. 694; 27 Am. St. R. 44; 26 Am. St. R. 828; 10 Am, St. R. 210; 57 S. C. 198; 71 S. C. 95; 91 U. S. 526; 52 S, C. 156.

Messrs. Legare & S ^ I ttj ¡D § j: tc & % ^ -contra,

cite: 37 S. C. 53; n^ CO *os*or tn O CO 02 00 co o *m*z> co ijl H CO 2> CO CO H CJ 'í a o *to w.*¡D o CO co M rf co Jr 00 *Os*co O *m*o *m*O oo o OO 10 10 . ^ co O CO c/i ® 'R oa r-i' co O H O H o o o *S. C. 101.*

December 19, 1911.

T'be opinion in) this case was filed oo July 31, 1911, but held up on ¡petition' for rehearing until

The opinion of the Court was delivered 'by

Mr. Justice Hydrick.

This appeal presents the following question: Does a judgment, dismissing a complaint on a demurrer, based on the ground, ¡among others., that the complaint alleges facts which affirmatively show that plaintiff is not entitled to recover, bar a second action, between the same parties for the same cause ?

In *Duke*v. *Tel. Co.,*71 S. C. 101, 50 S. E. 675, the Court ruled that a judgment dismissing a complaint on demurrer, because ¡of the *omission*of an allegation essential to 'the cause of action, does not bar a second 'action in which the necessary allegation is supplied. The reason' is that the merits, of *231the case, as disclosed' in the second1 action, were niot 'beard and decided in the first.

But the authorities cited by the Court ini that case recognize this distinction!: That where the oonifpilaint is dismissed^ not because of the *omission*of a material allegation, but because of the *affirmation*therein of facts which show that plaintiff is not entitled to recover, a second action is barred, 'because the first was necessarily- -a decision upon the merits^/ In *Gould*v. *Evansville etc. R. Co.,*91 U. S. 526, 23 L. ed. 416, the Court deduces these cooclus-ionsi from the authorities : “1. That a judgment rendered upon demurrer to the declaration or to a material pleading, setting forth the facts, is equally conclusive of the matters confessed by the demurrer as a verdict finding the same facts would be, since- the matters in controversy are established in the former case, as well as in the latter, 'by matter of record; and the rule is, that facts thus established1 can never after be contested between the same parties or those in privity with them; 2. That if judgment is rendered for the defendant on demurrer to the declaration, or to a material pleading in chief, the plaintiff can never after maintain against the same defendant or his privies any similar or concurrent action for the same cause upon the same grounds as were disclosed in the first declaration; for the reason that the judgment upon such a demurrer determines the merits of the cause, and a final judgment deciding the right must put an end to the dispute, else the litigation would be endless (citing cases). Support to these propositions is found everywhere; but it is equally well settled, that if plaintiff fails on demurrer in his first action from the omission of an essential allegation in his declaration which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right, for the reason that the merits of the cause, as disclosed in the second declaration, were not heard and decided in the first action.” In Black on Judgments, sec. 707, it is said: *232“But if the decision was on account of some inherent vice or defect in the case *shown by the complaint,*rather than! for the lack of proper allegations, it is difficult to resist1 the conclusion that the judgment would be a complete bar to any further suit upon the same transaction! or state of facts.”

1 Under these authorities, and especially *Duke*v. *Tel. Co.,*in so far as the demurrer ini the first action was based on grounds of insufficiency of allegation in the cono-plaint, the judgment would not be a bar to this' action, in which the deficiency is fully supplied. But if it was based also upon the ground that the compiiainlb showed affirmatively that plaintiff was not 'entitled toi recover, then the judgment is a 'bar to this action. It is mob necessary for us to consider the allegations of the complaint in the former case to ascertain what is and what is nob therein alleged. The order of 'the Court, in that case, sustaining the demurrer on the ground's upon which it was based, precludes any such inquiry. All parties, including this Court, are bound by the construction put upon the complaint by tire Court in that case. We are also bound by the conclusion, of tine Circuit Court, in this case, that the order in the former case sustained all the grounds of demurrer; 'because there is no appeal from that conclusion. Therefore, it is only necessary to look to the grounds of demurrer in the former case to' see if any one of them is based upon the ground that the complaint alleges facts which show that the plaintiff was not entitled to. recover; for if there is one such ground, it is enough to show that the merits of the former case were considered and decided.

The third ground of demurrer was. as follows: “The entire complaint shows that 'tine plaintiff’s intestate, while a licensee or a trespasser, was injured by a mere accident as a result of the breaking" of the machinery of the defendant, while used in' the ordinary course of its business, and which could 'not have been guarded against.” Now, clearly, if the com*233plaint stows wfliat is staitódi in 'Chis ground of demurrer, and that it does cannot now be questioned, it shows affirmatively that plaintiff was not entitled to recover, for the law does not impose liability for a mere accident, which- could not have been guarded against. That'plaintiff's intestate lost his life as the result of such an accident has been conclusively adjudicated. Therefore, the Court erred in not holding such adjudication to be a bar to this action. Every litigant is entitled to have the merits of his case tried once, b-ult he is entitled to only one such trial.

*2***It must not be inferred that such an allegation is not subject to amendment. *Hall*v. Woodward, 30 S. C. 564, 9 S. E. 684. But the remedy in such a case is by amend-meant, for, so long as the allegation remains in the pleading, the plaintiff is bound by it. The same question is involved-and the same judgment will be entered in the case of A. O. Hodge, as administrator of the estate of Howard M. Hodge, against the same defendant.

Reversed.

3 Petition for rehearing refused by formal order filed December 19, 1911.