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trial of the trover case, the judge, in effect,
charged the jury that the plaintiff, being a
party to the decree, was estopped from de-
nying the right of the defendant to hold the
negroes during the lifetime of his wife.
This court held such charge to be erroneous,
upon the ground that, in order for the de-
cree in the equity cause to be rendered, "it
was not a matter of necessity that the court
should first determine the question" which
was involved in the trover suit. Benning,
J., who, delivered the opinion, said: "Was
the right asserted in the action of trover
such that it had, of necessity, to be deter-
mined by the court in the equity suit before
it could render the decree which it did ren-
der in that suit?" Then, after discussing
this question, he concluded that "it was at
least not a matter of necessity that the
court, before making the decree,
should have determined" this question, and
that therefore the decree could be no bar to
the action of trover.

payable to the order of Medlock, upon the indorsement of which he is sued in the present case, had been accepted by Moore, Marsh, & Co. 3 payment pro tanto of his indebtedness to them, for which he was entitled to a credit upon the notes on which they were then suing him, and that he had subsequently paid to them the balance left due thereon in cash. It is obvious that, if this defense was found by the jury to be sustained by the evidence, their verdict, finding generally in his favor, and that his three individual notes and the deed which he had given to secure them be surrendered and canceled, and Moore, Marsh, & Co. be required to execute a deed reconveying the property described in the security deed to him, naturally followed; and it was wholly unnecessary for them to pass upon the merits of his other defenses. It is impossible to tell, from the record introduced in support of the plea of estoppel by judgment, upon which of the defenses set up by Medlock in his equitable proceeding against Moore, Another case which is equally in point is Marsh, & Co. the verdict therein was ren- Bradley v. Johnson, 49 Ga. 412. In that dered, as the verdict was general. It is evi-case the complainant, as the widow and heir dent that, if that verdict was based upon the above-stated defense, the decree founded thereon is no bar to the present action against him, for the verdict would then mean no more than that Medlock, after paying his three individual notes which he had given to Moore, Marsh, & Co., with the two notes of Zachry and Richmond, indorsed by him, and a certain sum in cash to cover the balance, was entitled to have these individual notes surrendered to him, and the deed which he had given to secure them canceled, and the property therein described reconveyed to him.

A case decided by this court which is directly in point is Hunter v. Davis, 19 Ga. 413, where it was held: "A judgment is not a technical estoppel as to any matter, if the matter is not such that it had, of necessity, to be determined by the court and jury before the court could give the judgment." In that case the original trustee named in a deed which conveyed certain negroes and other property in trust for specified purposes and beneficiaries had been removed for cause, and another trustee appointed in his stead; and the new trustee had brought an action of trover for the recovery of four of these negroes, against the person who had them in possession, who was the husband of one of the beneficiaries. Upon the trial of this action the defendant introduced in evidence a transcript of the record of a suit in equity against him and his wife and the original trustee, brought by the other beneficiaries of the trust, and relied upon the decree therein rendered as an estoppel upon the plaintiff in the trover suit. Upon the

at law of Bradley, filed a bill against the defendant, as the administrator of Bradley, for an accounting and distribution of Bradlev's estate, with a prayer for injunction. On the trial of the case, Johnson, the defendant administrator, introduced in evidence an exemplification from the court of ordinary of the county, from which it appeared that he had made application to that court for letters of administration upon such estate, to which the complainant had entered a caveat, claiming that she, as the widow of Bradley, was entitled to the administration; that the ordinary had granted letters of administration to her; that an appeal had been entered to the superior court; and that the trial in that court resulted in a judgment that the appellant, Johnson, was entitled to administration upon Bradley's estate, which judgment had been certified to the court of ordinary and made the judgment of that court. The administrator relied upon this evidence as showing that the question whether the complainant was the widow of Bradley had been made in the case in the court of ordinary, and there determined against her; and, upon such evidence, under the charge of the court, he obtained a verdict and judgment in his favor. This court, in reversing the judgment, held that the judgment in the court of ordinary "was conclusive as to the fact that letters of administration had been granted to Johnson on Bradley's estate, when offered in evidence on the trial of the equity cause, but it was not conclusive on that trial upon the point as to whether the complainant was the widow of Bradley;"

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that it was not an adjudication directly out indicating which of them was thus litupon that point, and did not purport to de-igated and upon which the judgment was cide that question. In the opinion of the rendered,—the whole subject-matter of the court, Chief Justice Warner, after saying this much, continued as follows: "Moreover, it does not affirmatively appear from the verdict and judgment thereon that the fact of her being the widow of Bradley was the only question made and decided by the judgment of the court of ordinary. The judgment itself is not directly upon that point, and, unless the judgment of the court of ordinary was rendered directly upon that point, as shown by the record, the complainant was not estopped by that judgment from proving that she was the widow of Bradley, on the trial of the equity cause." Upon a subsequent trial of the case in the superior court, the trial judge held that the complainant was estopped by the judgment in the court of ordinary, and the jury, under his charge, found in favor of the administrator; and, upon writ of error to this court, the judgment was again reversed. This court then held: "A judgment in the court of ordinary, on an issue as to the grant of administration on an estate, that the letters do issue to one Johnson, does not estop a woman claiming to be the widow of the deceased from the assertion of her right to the estate by bill in equity, though she was a party to the suit in the ordinary's court, and the question there was as to her marriage to deceased, and though Johnson was contesting with her at the instance of the heirs at law of deceased." [55 Ga. 354.] Judge Jackson, delivering the opinion, said that the facts in the record did not affect the principle ruled in 49 Ga., and that it was "immaterial for what reason the ordinary granted Johnson the administration; he was not bound to pass upon the question of the marriage,”—and quoted the headnote in Hunter v. Davis. 19 Ga. 413. To the same effect, see Henderson v. Fox, 80 Ga. 479, 6 S. E. 164.

A leading case in this country, which has been often approvingly cited and followed, is Russell v. Place, 94 U. S. 606, 608, 24 L. ed. 214, 215, in which it was held: "It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record,-as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, with

action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined." This case was followed in De Sollar v. Hanscome, 158 U. S. 221, 39 L. ed. 959, 15 Sup. Ct. Rep. 816, the facts of which case make the decision there rendered peculiarly in point in the case with which we are dealing. In that case De Sollar filed a bill against Hanscome for the specific performance of an agreement for the sale of certain real estate, made with him by an agent of the defendant. The defendant claimed that the agent had exceeded his authority, but the plaintiff contended that the defendant, after full knowledge of the agreement made by his agent, had ratified it. De Sollar also contended that, by a judgment which had been rendered in his favor in a common-law action which Hanscome had instituted against him to recover damages alleged to have been sustained in consequence of his having placed this agreement and a certain letter written by Hanscome to his agent upon record, Hanscome was estopped to deny that he had ratified the act of his agent in making the contract in dispute. Mr. Justice Brewer, in delivering the opinion, said: "The plaintiff insists-and that is the burden of his contention-that the judgment in the law action is conclusive as to the fact of defendant's assent to the contract as executed by his agent, while the defendant claims that it settles only that this plaintiff, acting under the advice of counsel in placing the papers on record, was guilty of no wilful or malicious wrong, and therefore not liable in damages." Then, after showing from the charge of the court in the action for damages that the jury trying that case "were at liberty to find for the defendant if they thought that in fact the plaintiff had suffered no damages by the filing for record of the letter and agreement,” notwithstanding the judge had charged them that "the chief question" was whether the plaintiff had ratified what had been done in his name by his agent, he said: "There is in this case no extrinsic testimony tending to show upon what the verdict of the jury was based. We have simply the record of the former judgment, including therein the testimony and the charge of the court, from which to determine that fact; and, in the light of the charge, it is obviously a matter of doubt whether the jury found that the agreement made by the agent was ratified by the principal, or that no damage had in fact been sustained by placing the papers upon record. We are not now concerned with the inquiry

tice to the town of the existence of the obstruction; and the testimony of jurors

whether the instructions of the court were | might have been based upon the lack of nocorrect or not. We look to them simply to see what questions were submitted to the jury, and, if they left it open to the jury to find for the defendant upon either of the two propositions, and the verdict does not specify upon which the jury acted, there can be no certainty that they found upon one rather than the other. The principal contention therefore, of the plaintiff, fails." The principle ruled was stated both in the opinion and the headnote as follows: "It is of the essence of estoppel by judgment that it is certain that the precise fact was determined by the former judgment."

Another case directly in point is Greene v. Merchants, & Planters' Bank, 73 Miss. 542, 19 So. 350, where it was held: "Where one has been sued as acceptor of a lost bill of exchange alleged to have been drawn by a certain firm to its own order, and indorsed by the firm and one of the members thereof, and on his pleas of non est factum and payment, and the evidence in support of the same, the defendant has defeated a recovery, he cannot, in a second suit against him as acceptor of a lost bill in all respects similar to the preceding bill, save that it was alleged to have been drawn not by the firm, but by said member thereof, maintain a plea of res judicata, since it is impossible to say on which of his pleas the jury found for him in the prior suit, and, if not on that of payment, the only matter determined was that he did not accept the particular bill then sued on, which would not preclude an action on the bill that he did accept."

Still another is Augir v. Ryan, 63 Minn. 373, 65 N. W. 640, where it was held: "In order that a former judgment should bind parties in a subsequent action by way of estoppel as to any question of fact, it must appear, from the judgment or by extrinsic evidence, that such question was within the issues of the former action, and actually litigated and determined therein. If such judgment and extrinsic evidence leave it a matter of conjecture as to what questions of fact were litigated and determined in the former action, the judgment is not an estoppel." It appeared in that case, as it does in this, that several defenses had been interposed in the former action, but it did not appear upon what issue the verdict in favor of the defendant was founded.

In Hearn v. Boston & M. R. Co. 67 N. H. 320, 29 Atl. 970, it was held: "A town having been sued for damages caused by an obstruction in a highway, and the person who placed the obstruction there having been notified of the suit and having conducted the defense, a general verdict for the defendant is not a bar to a subsequent suit against such person for the same injuries, since it

is not competent for the purpose of showing that their verdict was in fact based solely on issues material in the second action." In the opinion, Chase, J., said: "As the record does not show upon which of the issues the former judgment was founded, it was incumbent upon the defendants, in order to establish an estoppel by that judg ment, to prove by extrinsic evidence that it was founded upon the matters that are in issue in this action."

The principle is briefly and succinctly stated in Thompson v. N. T. Bushnell Co. 80 Fed. 332, as follows: "Unless it appears from the record or consistent extrinsic evidence that the particular matter sought to be concluded was necessarily tried and determined, so that the judgment could not have been rendered without deciding it, there is no estoppel."

It follows that the trial judge erred when, at the close of the evidence, he withdrew the case from the jury, sustained the plea of res judicata, and dismissed the plaintiffs' action.

2. The plaintiffs offered in evidence a paper which purported to be an amendment which had been offered by Moore, Marsh, & Co. to their answer to the equitable petition of Medlock against them, and which had been disallowed by the court. The court refused to allow this paper to be introduced in evidence, upon the ground that it was no part of the record in the case of Medlock v. Moore, Marsh, & Co. It does not appear that when this paper was offered in evidence any question was raised as to the necessity for proving that it really was what it purported to be. The title and description of the case which appeared at its head was: "R. O. Medlock v. Moore, Marsh, & Co. In Equity, in Gwinnett Superior Court, March Term, 1900." What purported to be the order of the judge disallowing the amendment appeared at the end of the document, in the following language: "This amendment disallowed by the court, the makers of the notes (against whom Medlock, as a surety, would have the right to proceed) not being legally in court." This was signed officially in the name of the judge of the western circuit,the same judge who was presiding in the trial in the present case. The paper was, as we have seen, excluded simply upon the ground that it was no part of the record in the case to which it purported to relate.

This proposed and rejected amendment prayed that, in the event it should be determined that Moore, Marsh, & Co. had, as alleged by Medlock, accepted the two notes of Zachry and Richmond, payable to the order

stance tending to show that the court did not then consider that the question of Medlock's liability as indorser on the Zachry and Richmond notes was involved in that case, and that it was not determined by the judgment which is relied upon in the present case as an estoppel. We are clearly of opinion that the mere fact that this paper was no part of the record in the case of Medlock v. Moore, Marsh, & Co. did not render it inadmissible in evidence. Butler v. Tifton, T. & G. R. Co. 121 Ga. 817, 49 S. E. 763.

of Medlock, and indorsed by him, in part | not parties to that case. This was a circumpayment of the three individual notes of Medlock, upon which they were suing him in the city court of Lawrenceville, then they should have judgment against him for the amount of the Zachry and Richmond notes. While this paper could not be introduced as a part of the record in the case of Medlock v. Moore, Marsh, & Co., yet it showed upon its face that in that case Moore, Marsh, & Co. had sought to have the question as to their right to recover against Medlock as indorser upon the very two notes now sued on determined, in the event the jury should find that they, as alleged by him, had accepted these notes as payment pro tanto of his three individual notes upon which they were then suing him, and that they were not allowed to do so because Zachry and Richmond were

Judgment reversed.

All the Justices concur, except Cobb, J., disqualified.


City of NEW CASTLE, Appt.,


Julia Maria KURTZ et al.

(210 Pa. 183.)

1. A municipal corporation which has imposed the duty проп property owners of keeping the sidewalks in front of their property free from ice under penalty, and has provided that, in case of their neglect to remove the ice, it will be removed by the city at their expense, assumes the duty of keeping the walks clear; and, in case it is held liable for injury to one falling upon the walk, it cannot recover over against the property owner on the theory that he was primarily liable for the injury.


2. Owners of property in Possession
of tenants
not bound to keep
watch to see that ice dangerous to
travel does not form on the walks
in front of it which are properly constructed
and in proper repair, where their negligent
construction of their buildings does not con-
tribute to its formation; and therefore they
cannot be held liable for injuries to a trav
eler by falling upon ice of the existence of
which they have no notice.

3. Placing a conductor pine so as to
lead water from the roof of a build-
ing adjoining a sidewalk and empty
it upon the walk in the manner customary

in the community is not a nuisance per se, where it does not ordinarily interfere with travel; and the property owner cannot be held liable to one who is injured by ice formed upon the walk many years after the con


struction of the pipe, as the result of a severe and unusual storm.

(Mestrezat and Potter, JJ., dissent.)

(December 31, 1904.)

PPEAL by plaintiff from a judgment of

the Court of Common Pleas for Lawrence County in favor of defendants in an action brought to hold them liable for damages which plaintiff had been compelled to pay because of an injury to a traveler who fell upon the sidewalk in front of their property. Affirmed.

The facts are stated in the opinion. Messrs. James A. Gardner and Robert K. Aiken, for appellant:

Defendants created and maintained a public nuisance, an obstruction upon the sidewalk, a hindrance and a danger to public travel.

The primary duty of keeping the sidewalk in repair is upon the abutting property


Lohr v. Philipsburg, 156 Pa. 249, 27 Atl. 133; Duncan v. Philadelphia, 173 Pa. 554. 51 Am. St. Rep. 780, 34 Atl. 235; Pittsburg use of Flanagan v. Fay, 8 Pa. Super. Ct. 275; Pittsburg use of Flanagan v. Daly, 5 Pa. Super. Ct. 532; Mintzer v. Greenough, 192 Pa. 144, 43 Atl. 465; Dutton v. Lansdowne, 198 Pa. 563, 53 L. R. A. 469, 82 Am. St. Rep. 814, 48 Atl. 494.

Where a municipality has been sued, and has paid a judgment for injuries sustained NOTE. As to liability for permitting water either by a defective sidewalk, or by reason

to accumulate and freeze on sidewalks to the injury of travelers, see also note to Brown v. White, 58 L. R. A. 321.

of a nuisance caused or maintained by the property owner, recovery over can be had

by the municipality against the property | 523, 53 L. R. A. 805, 61 S. W. 859; 2 Shearm. & Redf. Neg. § 709a.


Brookville v. Arthurs, 130 Pa. 501, 18 Atl. 1076, 152 Pa. 334, 25 Atl. 551; Chester v. First Nat. Bank, 9 Pa. Super. Ct. 517: Mintzer v. Greenough, 192 Pa. 137, 43 Atl. 465; Dutton v. Lansdowne, 198 Pa. 563, 53 L. R. A. 469, 82 Am. St. Rep. 814, 48 At. 494; Reading v. Reiner, 167 Pa. 41, 31 Atl. 357; Brown v. White, 202 Pa. 297, 58 L. R. A. 321, 51 Atl. 962; Kirchner v. Smith, 207 Pa. 431, 56 Atl. 947; Dickson v. Hollister, 123 Pa. 429, 10 Am. St. Rep. 533, 16 At!. 484; Gates v. Pennsylvania R. Co. 150 Pa. 50, 16 L. R. A. 554, 24 Atl. 638; Philadelphia Co. v. Central Traction Co. 165 Pa. 461, 30 Atl. 934; Isham v. Broderick, 89 Minn. 397, 95 N. W. 224; Leahan v. Cochran, 178 Mass. 566, 53 L. R. A. 891, 86 Am. St. Rep. 506, 60 N. E. 382; Lowell v. Short, 4 Cush. 275; West Boylston v. Mason, 102 Mass. 341; Westfield v. Mayo, 122 Mass. 100, 23 Am. Rep. 292; Chicago v. Robbins, 2 Black, 418, 17 L. ed. 298, 4 Wall. 657, 18 L. ed. 427; Reedy v. St. Louis Brewing Asso. 161 Mo. 523, 53 L. R. A. 805, 61 S. W. 859; 2 Dill. Mun. Corp. §§ 1032-1035.

The nuisance in this case was occasioned by the construction of the conductors with out any provision being made to carry the water across or under the sidewalk, and was a continual nuisance of which the defendants had notice.

Gates v. Pennsylvania R. Co. 150 Pa. 50, 16 L. R. A. 554, 24 Atl. 638; Fowler v. Jersey Shore, 17 Pa. Super. Ct. 375; Read ing v. Reiner, 167 Pa. 42, 31 Atl. 357; Isham v. Broderick, 89 Minn. 397, 95 N. W.


The casting of the water from the roofs of the buildings, through a large conductor, out upon the sidewalk, there to freeze in a ridge of ice, without making any provision to carry the same away, was clearly a nui


Brown v. White, 202 Pa. 297, 58 L. R. A. 321, 51 Atl. 962; Reedy v. St. Louis Brewing Asso. 161 Mo. 523, 53 L. R. A. 805, 61 S. W. 859; Isham v. Broderick, 89 Minn. 397, 95 N. W. 224.

The landowner is not relieved from liability when he leases his premises having a nuisance thereon.

Reading v. Reiner, 167 Pa. 41, 31 Atl. 357; Knauss v. Brua, 107 Pa. 85; Fow v. Roberts, 108 Pa. 489; Wunder v. McLean, 134 Pa. 334, 19 Am. St. Rep. 702, 19 Atl. 749; Brown v. White, 202 Pa. 297, 58 L. R. A. 321, 51 Atl. 962; Kirchner v. Smith, 207 Pa. 431, 56 Atl. 947; Lewin v. Pauli, 19 Pa. Super. Ct. 447; Isham v. Broderick, 89 Minn. 397, 95 N. W. 224; Reedy v. St. Louis Brewing Asso. 161 Mo.

The ordinances passed under the police power create no new liability on the part of the municipality, nor does failure to enforce them.

Betham v. Philadelphia, 196 Pa. 312, 46 Atl. 448; Elliott v. Philadelphia, 75 Pa. 347, 15 Am. Rep. 591; Boyd v. Insurance Patrol, 113 Pa. 270, 6 Atl. 536; Philadel phia & R. R. Co. v. Ervin, 89 Pa. 75, 33 Am. Rep. 726; Philadelphia & R. R. Co. v. Boyer, 97 Pa. 102; Davidson v. Schuylkill Traction Co. 4 Pa. Super. Ct. 94; McDade v. Chester, 117 Pa. 414, 2 Am. St. Rep. 681, 12 Atl. 421; Allebrand v. Duquesne, 11 Pa. Super. Ct. 223; Ewen v. Philadelphia, 194 Pa. 548, 75 Am. St. Rep. 712, 45 Atl. 339: Grant v. Erie, 69 Pa. 420, 8 Am. Rep. 272; Chattanooga v. Reid, 3 Mun. Corp. Cas. 308. and note, 103 Tenn. 616, 53 S. W. 937; Tarbutton v. Tennille, 110 Ga. 90, 35 S. E. 282; 2 Dill. Mun. Corp. 4th ed. §§ 950-952 notes.

The provision in the sidewalk ordinance introduced by the defendants under objections, which required the street commissioner to see that "the work is done, or caused to be done, according to the provisions of this ordinance," or like provisions, imposed no duty or liability on the city.

Harrison v. Collins, 86 Pa. 153, 27 Am. Rep. 699; Coates v. Chapman, 195 Pa. 117, 45 Atl. 676; Wray v. Evans, 80 Pa. 105; White v. Philadelphia, 201 Pa. 512, 51 Atl. 332; Uppington v. New York, 165 N. Y. 222, 53 L. R. A. 550, 59 N. E. 91; 1 Smith, Mun. Corp. § 744, p. 745.

The only defenses open to a defendant in cases involving defects in the sidewalk are, (1) that he did not own the property, (2) that he was not under any duty or obligation to keep the sidewalk in good repair, (3) that the accident did not happen through any neglect of duty on his part.

Fowler v. Jersey Shore, 17 Pa. Super. Ct. 372.

While the city may be primarily liable to a person injured, by reason of its duty to see that the sidewalk is reasonably safe, yet the primary duty of keeping a sidewalk in order is upon the property owner, and that of the city is secondary. The negligence of the city consisted in not compelling the property owners to remove the defect or nuisance.

Lohr v. Philipsburg, 156 Pa. 246, 27 Atl. 133; Fowler v. Jersey Shore, 17 Pa. Super. Ct. 373; Dutton v. Lansdowne, 198 Pa. 566. 53 L. R. A. 469, 82 Am. St. Rep. 814, 48 Atl. 494; West Boylston v. Mason, 102 Mass. 341.

The city and the property owner are not

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