Supreme Court of United States.
*490 Mr. Edward S. Duvall, Jr., for petitioner.
Mr. John S. Flannery and Mr. Frederic D. McKenney for respondent.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a suit brought by the petitioner to recover indemnity for a judgment that it had to pay in pursuance of the decision of this court in George A. Fuller Co. v. McCloskey, 228 U.S. 194. McCloskey, the plaintiff in the former suit, was injured upon an elevator through the negligence of Locke, the man in charge of it. He was at work for the Mackay Company, which was doing some painting under a subcontract with the defendant, the present petitioner, which, it was held, as between the parties then concerned, made the defendant answerable for Locke. The petitioner had constructed an office building under an agreement with the owner, Hibbs. The Otis Elevator Company had put in the elevators, also under an agreement with Hibbs, and furnished the man Locke upon a somewhat vague understanding with the petitioner, which, the latter contends, left Locke the servant of the Elevator Company as between the parties now before this court. If the petitioner is *491 right and the primary duty rested on the Elevator Company it may recover in the present suit, unless the former proceedings constitute a bar. Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, 328.
There was evidence fully sufficient to show that the respondent retained its control at the time of the accident, and the jury found a verdict for the plaintiff, but the judgment was set aside by the Court of Appeals on the ground that although the former judgment did not make the matter res judicata it concluded the case: "In view of the adjudicated facts, which were not open to the consideration of a second jury, there was no such primary liability on the part of the Otis Company as will support an action for indemnity." But there were no facts, whether adjudicated in the former case or not, that were not open to the consideration of the jury in this. The Otis Company was joined as a party defendant, it is true, in the former action, and a verdict was directed in its favor. But even if the former verdict against the petitioner had gone on the same issue that was tried in the present case, which was not the fact, it could not have concluded the petitioner in favor of the Otis Company, for the reason, if for no other, that the Otis Company was dismissed from the suit before the petitioner's evidence was heard.
The former judgment did not decide that the evidence in the present case showed as matter of law that Locke, who was in the general service of the Otis Company, was transferred for the moment to the petitioner. It did decide as matter of law that as between the Mackay Company and the petitioner their agreement left the petitioner responsible. It had no occasion to decide and did not purport to decide more. Even if it had gone farther it would have been res inter alios as an adjudication and it would not have been a precedent because the evidence in the present case had additional details which, if meagre, *492 still made it impossible to say as matter of law that the Otis Company did not retain control.
It is objected to the writ of certiorari in this case that there was no final judgment; but the writ when issued to the Court of Appeals is not limited to cases in which final judgment has been entered, but only to cases in which the judgment when entered is final. Judicial Code, § 251. The words "with the same power and authority in the case as if it had been carried by writ of error or appeal to said Supreme Court" express the character of the power, not its conditions, as the power is granted only when a writ of error or appeal does not lie. See Judicial Code, § 240. Denver v. New York Trust Co., 229 U.S. 123, 133. The decision in Bruce v. Tobin, 245 U.S. 18, cited for the respondent, is concerned with the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726, which requires a final judgment in terms.
Judgment reversed.
Judgment of Supreme Court affirmed.
