SIMPSON, Justice.
The plaintiff, A. B. C. Truck Lines, Inc., brought suit against defendant,' Kenemer, in the circuit court of Jefferson County, Alabama, for damages to one of plaintiff’s trucks suffered in a collision with a truck of defendant, the action being predicated on the negligence of Kenemer’s truck driver.
The defendant interposed pleas of res judicata. The trial court overruled the demurrers to the pleas and plaintiff then filed replications, to which demurrers were sustained and because of these adverse rulings the plaintiff nonsuited the cause and appealed.
The first plea alleged that the matters and things charged in the complaint had been previously adjudicated against plaintiff in a court of competent jurisdiction in the State of Georgia and by averment and exhibits made a part of the plea it appears that a similar suit for' damages to Kenemer’s truck on account of the same accident was instituted by Kenemer (defendant in Alabama) in the Georgia court against the A. B. C. Truck Lines, Inc. (the Alabama plaintiff), counting upon the negligence of the truck driver of the truck line company in the self-same collision. By the plea it was shown that the truck line company appeared in the Georgia case, was represented by counsel, and by an,d through such counsel, duly authorized, joined issue oh the complaint of Kenemer, that a jury was impaneled, a verdict returned in favor of said Kenemer against the defendant A. B. C. Truck Lines, Inc., in the amount of $250 and costs, on which verdict a judgment was duly rendered by the judge of that court and that “said judgment has not been appealed from and has been paid.”
Plea 2 is substantially the same as Plea 1, with the added allegation that in the collision the injuries and damages complained of in the Alabama complaint were proximately due to and caused by the negligence of the operator of the truck of the A. B. C. Truck Lines, Inc., and that the issue of contributory negligence of said truck driver on the occasion complained of and the issue of proximate contribution of such negligence to the said injuries and damages have been thereby previously fully adjudicated against the plaintiff (appellant) .
Though there have been many scintillating refinements of the doctrine of res judicata, from which has been deduced some conflict of authority, the points of decision touching the instant case appear to have been very well settled.
The appellant first argues that the pleas are insufficient because, assertedly, they do not show an adjudication of the cause on the merits. In this we cannot agree and the trial court must be sustained in the contrary ruling.
The pleas, while not stating in haec verba that there was an adjudication on the merits, are clear and substantial to this effect. It is shown that in the Georgia court, having power to determine the issue, the defendant (truck line company) appeared, issue was joined and after a jury and verdict returned, a judgment was duly rendered. This, we think, was all sufficient to indicate an adjudication on the merits rendering the pleas immune to the stated objection. ^
Speaking to this question, Corpus Juris has an apposite statement: “If the judgment is general, and not based on any technical defect or objection, and the parties had a full legal opportunity to be heard on their respective claims and contentions, it is upon the merits, although there was no actual hearing or argument on the facts of the cause.” 34 C.J. 776.
On the same principle this court has indicated that a decision is generally regarded as on the merits if it was not controlled by some technical status not affecting the merits of the controversy as by reason of improper parties, defects in pleadings, matters in abatement, nonsuits and the like. Terrell v. Nelson, 199 Ala. 436, 74 So. 929.
The question is also raised in argument here, though there was no demurrer specifically challenging the pleas on this ground, that the two suits were upon different claims and that the pleas of res judicata are ineffective under the rule discussed in Central of Georgia R. Co. v. Dothan National Bank, 206 Ala. 602, 91 So. 351, and other cases of similar import. We think this argument likewise untenable and, in view of the dissenting opinion hereinafter appearing, will note our reasons.
The Georgia suit was for damages by reason of the negligent operation of appellant’s truck, proximately resulting in the injuries complained of and the judgment was accordingly rendered on this issue and necessarily involved a determination of the question of the culpability vel non of both the plaintiff and defendant for negligence. To allow the instant claim as a basis for a right of action against the plaintiff in the former judgment when it was available as a defense to that action, the facts upon which the right of recovery is sought to be based being inconsistent with and in direct opposition to the facts on which the judgment plaintiff first recovered, would be contrary to the simplest and most fundamental principles of res judicata. ,
There is, of course, a difference between the effect of a judgment as an estoppel against the prosecution of a second action between the same parties on the same
claim or cause of action and on a different claim or demand. In the former, a judgment on the merits is an absolute bar to a subsequent prosecution of such claim or demand, while in the latter the prior judgment operates as an estoppel only to those matters in issue or questions controverted and determined. Tait v. Western Maryland R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195.
But, in the latter mentioned case, if “some matter litigated in the former suit (was) determinative of a matter [litigated] in the second suit,” the estoppel arises. United Shoe Mach. Corp. v. United States, 258 U.S. 451, 459, 42 S.Ct. 363, 366, 66 L. Ed. 708.
The principle is well understood; the conflicts have arisen in its correct application.
There is a good exposition of the doctrine in 2nd Black on Judgments/where it is first noted that “it is a general rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action; and this is true, not only with respect to further or supplementary proceedings in the same cause, but for the purposes of every subsequent suit between the same parties, whether founded upon the same or a different cause of action. ‘A party cannot relitigate matters which he might have interposed, but failed to do, in a prior action between the same parties or their privies in reference to the same subject-matter. * * 2nd Black on Judgments, § 754.
In further expounding the principle, the same treatise takes note of the apparent conflict of the foregoing rule with the equally important rule that a counterclaim or independent cause of action arising out of the same transaction not inconsistent with the plaintiff’s claim need not be presented as a defense, but may be reserved as a basis for a future action.
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SIMPSON, Justice.
The plaintiff, A. B. C. Truck Lines, Inc., brought suit against defendant,' Kenemer, in the circuit court of Jefferson County, Alabama, for damages to one of plaintiff’s trucks suffered in a collision with a truck of defendant, the action being predicated on the negligence of Kenemer’s truck driver.
The defendant interposed pleas of res judicata. The trial court overruled the demurrers to the pleas and plaintiff then filed replications, to which demurrers were sustained and because of these adverse rulings the plaintiff nonsuited the cause and appealed.
The first plea alleged that the matters and things charged in the complaint had been previously adjudicated against plaintiff in a court of competent jurisdiction in the State of Georgia and by averment and exhibits made a part of the plea it appears that a similar suit for' damages to Kenemer’s truck on account of the same accident was instituted by Kenemer (defendant in Alabama) in the Georgia court against the A. B. C. Truck Lines, Inc. (the Alabama plaintiff), counting upon the negligence of the truck driver of the truck line company in the self-same collision. By the plea it was shown that the truck line company appeared in the Georgia case, was represented by counsel, and by an,d through such counsel, duly authorized, joined issue oh the complaint of Kenemer, that a jury was impaneled, a verdict returned in favor of said Kenemer against the defendant A. B. C. Truck Lines, Inc., in the amount of $250 and costs, on which verdict a judgment was duly rendered by the judge of that court and that “said judgment has not been appealed from and has been paid.”
Plea 2 is substantially the same as Plea 1, with the added allegation that in the collision the injuries and damages complained of in the Alabama complaint were proximately due to and caused by the negligence of the operator of the truck of the A. B. C. Truck Lines, Inc., and that the issue of contributory negligence of said truck driver on the occasion complained of and the issue of proximate contribution of such negligence to the said injuries and damages have been thereby previously fully adjudicated against the plaintiff (appellant) .
Though there have been many scintillating refinements of the doctrine of res judicata, from which has been deduced some conflict of authority, the points of decision touching the instant case appear to have been very well settled.
The appellant first argues that the pleas are insufficient because, assertedly, they do not show an adjudication of the cause on the merits. In this we cannot agree and the trial court must be sustained in the contrary ruling.
The pleas, while not stating in haec verba that there was an adjudication on the merits, are clear and substantial to this effect. It is shown that in the Georgia court, having power to determine the issue, the defendant (truck line company) appeared, issue was joined and after a jury and verdict returned, a judgment was duly rendered. This, we think, was all sufficient to indicate an adjudication on the merits rendering the pleas immune to the stated objection. ^
Speaking to this question, Corpus Juris has an apposite statement: “If the judgment is general, and not based on any technical defect or objection, and the parties had a full legal opportunity to be heard on their respective claims and contentions, it is upon the merits, although there was no actual hearing or argument on the facts of the cause.” 34 C.J. 776.
On the same principle this court has indicated that a decision is generally regarded as on the merits if it was not controlled by some technical status not affecting the merits of the controversy as by reason of improper parties, defects in pleadings, matters in abatement, nonsuits and the like. Terrell v. Nelson, 199 Ala. 436, 74 So. 929.
The question is also raised in argument here, though there was no demurrer specifically challenging the pleas on this ground, that the two suits were upon different claims and that the pleas of res judicata are ineffective under the rule discussed in Central of Georgia R. Co. v. Dothan National Bank, 206 Ala. 602, 91 So. 351, and other cases of similar import. We think this argument likewise untenable and, in view of the dissenting opinion hereinafter appearing, will note our reasons.
The Georgia suit was for damages by reason of the negligent operation of appellant’s truck, proximately resulting in the injuries complained of and the judgment was accordingly rendered on this issue and necessarily involved a determination of the question of the culpability vel non of both the plaintiff and defendant for negligence. To allow the instant claim as a basis for a right of action against the plaintiff in the former judgment when it was available as a defense to that action, the facts upon which the right of recovery is sought to be based being inconsistent with and in direct opposition to the facts on which the judgment plaintiff first recovered, would be contrary to the simplest and most fundamental principles of res judicata. ,
There is, of course, a difference between the effect of a judgment as an estoppel against the prosecution of a second action between the same parties on the same
claim or cause of action and on a different claim or demand. In the former, a judgment on the merits is an absolute bar to a subsequent prosecution of such claim or demand, while in the latter the prior judgment operates as an estoppel only to those matters in issue or questions controverted and determined. Tait v. Western Maryland R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195.
But, in the latter mentioned case, if “some matter litigated in the former suit (was) determinative of a matter [litigated] in the second suit,” the estoppel arises. United Shoe Mach. Corp. v. United States, 258 U.S. 451, 459, 42 S.Ct. 363, 366, 66 L. Ed. 708.
The principle is well understood; the conflicts have arisen in its correct application.
There is a good exposition of the doctrine in 2nd Black on Judgments/where it is first noted that “it is a general rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action; and this is true, not only with respect to further or supplementary proceedings in the same cause, but for the purposes of every subsequent suit between the same parties, whether founded upon the same or a different cause of action. ‘A party cannot relitigate matters which he might have interposed, but failed to do, in a prior action between the same parties or their privies in reference to the same subject-matter. * * 2nd Black on Judgments, § 754.
In further expounding the principle, the same treatise takes note of the apparent conflict of the foregoing rule with the equally important rule that a counterclaim or independent cause of action arising out of the same transaction not inconsistent with the plaintiff’s claim need not be presented as a defense, but may be reserved as a basis for a future action.
The pertinent rule is then correctly stated: “* * * The doubt arises in cases where it is uncertain whether the same transaction gives to each party an independent cause of action, or in cases where the defendant’s contention is both a defense to the plaintiff’s claim and a ground for the recovery of damages. But it is believed that all such ambiguous cases may be solved by the application of the following rule: Where judgment goes against the defendant, and he afterwards sues the plaintiff on a cross-claim which he might have presented in the first suit but did not, if the facts which he must establish to authorize his recovery are inconsistent with the facts on which the plaintiff recovered in the first action, or in direct opposition to them, the former judgment is a bar. In other words, if the way to his own recovery lies through a negation of the facts alleged by the plaintiff, that negation must be made good when the facts are first set up. For after-wards he cannot deny what the judgment affirms to be true. * * * ”
This general principle is manifestly applicable to the case at hand, for it would be paradoxical indeed to authorize a second recovery in the self-same collision by a defendant in a former judgment against his judgment plaintiff by the establishment of a different state of facts inconsistent with and diametrically opposed to the facts on which the first recovery was based.
Corpus Juris, in analyzing the principle, announces a similar result, to-wit: “Where separate causes of action accrue to the parties out of the same transaction or state of facts, cross actions may be maintained, and neither will bar the other, unless the facts necessary to authorize a recovery in one action are contrary to, or inconsistent with, those required to sustain a judgment in the other.” 34 C.J. 867, § 1279.
Also, to like effect is the following : “As a general rule, where a defendant has an independent claim against plaintiff, such as might be either the basis of a separate action or might be pleaded as a set-off or counterclaim, he is not obliged to plead it in plaintiff’s action, although he is at liberty to do so, and if he omits to set it up in that action, or if, althoug'h he introduces it in evidence in rebuttal of plaintiff’s demand, it is not used as a set-off or counterclaim, this will not preclude him from afterward suing plaintiff upon it, in the absence of some statute to the contrary. But this rule does not apply where the subject-matter of the set-off or counterclaim was involved in the determination of the issue in the former action in such wise that the judgment therein necessarily negatives the facts on which defendant would have to rely in order to establish his demand * * ' 34 C.J. 863, § 1276. See also Id., §§ 1282, 1283, pp. 868, 874, and Bell v. Jones, 223 Ala. 497, 136 So. 826.
There is a good statement of the general rule by Chief Justice Hughes of the United -States Supreme Court in the case of Chicot County Dist. v. Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 84 L.Ed. 329 (citing Grubb v. Public Utilities Comm’n, 281 U.S. 470, 479, 50 S.Ct. 374, 74 L.Ed. 972, and Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195): “* * * res judicata may be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, ‘but also as respects any other available matter which might have been presented to that end.’ ” [308 U.S. 371, 378, 60 S.Ct. 320.]
The proposition was considered by our own court in the recent case of Ex parte Proctor, 22 So.2d 896, where it was pointed out the estoppel obtained though the two actions were not the same. It was there demonstrated that though the suits were not identical, as respects the subject matter of the two they were the same, and that “it is not the recovery ..but the matter upon which the recovery proceeds which creates the estoppel.” Page 899, quoting 30 Am.Jur. 912, § 165.
Other of our decisions also pertinent are: Glasser et al. v. Meyrovitz, 119 Ala. 152, 24 So. 514; Fife v. Pioneer Lumber Co, 237 Ala. 92, 185 So. 759; Savage v. Savage, Ala.Sup, 20 So.2d 784;
Gilmer v. Gant, 246 Ala. 671, 22 So.2d 176; Murrell v. Smith, 51 Ala. 301; Wilkinson v. Lehman-Durr Co, 150 Ala. 464, 468, 43 So. 857, 858, 124 Am.St.Rep. 75; 13 Ala.Dig, Judgment, ^713(2).
It is plain that the declared principle is distinctly applicable here, for it must be conceded that in such a casera
right
of recovery never could accrue to both parties. Negligence of both parties and absence of negligence of either would preclude a recovery and there can only be a recovery where one such party to an automobile collision is guilty of actionable negligence and the other is not so negligent.
Any different conclusion would open the door in all such cases for the possibility of two separate damage suits from the same collision should the defendant in the first suit elect not to tender the issue of the contributory negligence of the adversary party, but should defer to claim it in a second action against him. It could arise, under such a status, that each party, when plaintiff, might recover against the other for negligence in the same accident. It is apodictic that neither logic nor sound doctrine could countenance such an anomaly where, as in Alabama, the contributory negligence of the defendant, when properly pleaded and proven, is a defense to such an action. (See 34 C.J. 1135, 1136, § 1611, decláring the rule as applicable to foreign judgments, and 31 Am.Jur. p. 146, § 536, for discussion of the principle as controlled by the full faith and credit clause of our Federal Constitution.)
Incidental to this argument is the contention that the pleas could be construed as indicating the rendition of the Georgia judgment by consent, in which case it is argued it would not have been an adjudication on the merits and could not be raised as a bar of estoppel to the instant suit. While, as heretofore indicated, we do not so construe the pleas, a sufficient answer to the argument is that even on direct attack in the absence of fraud in its procurement, the parties being sui juris and not standing in confidential relations to each other, a judgment or decree by consent is as conclusive between them and their privies as if the suit had been an adversary * one and rendered after a trial on the faet-s^j Adler v. Van Kirk Land & Construction Co, 114 Ala. 551, 561, 21 So. 490, 62 Am. St.Rep. 133; 31 Am.Jur. § 462, p. 107.
Pertinent is the observation in the last-cited case that “the fact that the decree (or judgment) * * * was rendered by consent of parties does not, therefore, detract from its dignity, or lessen its conclusiveness, as an adjudication between the parties. Not only is such its effect, but its consent is a waiver of error, precluding a review of the decree upon appeal, and, as a general rule, upon a bill of review.” Adler v. Van Kirk Land & Construction Co., supra, 114 Ala. 551 at page 561, 21 So. 490, 493, 62 Am.St.Rep. 133.
Appellant relies on Carr v. Illinois Central R. Co., 180 Ala. 159, 60 So. 277, 43 L.R.A.,N.S, 634, to sustain the contrary argument, but the later case of Cowley v. Farrow, 193 Ala. 381, 69 So. 114, the same Justice writing, declared a distinction and reaffirmed the principle enunciated in the Adler case, above.
It may be noted here too that the attack on the Georgia judgment is collateral
and that it was rendered by consent affords no basis for its impeachment. Judgments and “decrees by consent * * * are open to direct attack only.” Cowley v. Farrow, supra, 193 Ala. 381 at page 384, 69 So. 114, 115; 34 C.J. 516, § 817.
The next consideration relates to the sufficiency of the replications which sought to avoid the plea of res judicata by setting up that the Georgia judgment was the result of a settlement of that suit by Kenemer and the A. B. C. Truck Line’s liability carrier and was without appellant’s consent and over its protest and objection.
These replications, while seeking to attack collaterally the Georgia judgment, do not deny the jurisdiction of the court or the authority of the appellants’ attorneys of record to appear for it in the Georgia suit. On the contrary, it appears by affirmative averment that, by the contract of liability insurance, the appellant had authorized its liability carrier to employ counsel to defend any suit in its name and to make any settlement deemed expedient, which the insurance company did in the Georgia suit.
The rule of our cases is that a domestic judgment, regular on its face, is conclusive on collateral attack. Wise v. Miller, 215 Ala. 660, 111 So. 913; Louisville & N. R. Co. v. Tally, 203 Ala. 370, 83 So. 114.
In ,pase of direct attack, lack of jurisdiction may be shown by proof aliunde but, on collateral attack, lack of jurisdiction must properly be made to appear from the face of the record itself. Id.
The same is generally true as regards a foreign judgment except that the verity of the record may be contradicted by extrinsic evidence to show lack of jurisdiction (Kingsbury v. Yniestra, 59 Ala. 320; Mason v. Calhoun, 213 Ala. 491, 105 So. 643) and on this theory such judgment may be collaterally assailed by showing that the judgment was rendered on the appearance of an attorney without authority (the court not having otherwise acquired jurisdiction of the defendant). Zorn v. Lowery, 236 Ala. 62, 181 So. 249.
But once having acquired jurisdiction, the court being competent to adjudicate the matter, a foreign judgment is as solemn against such attack as one domestic, Mason v. Calhoun, supra, (4), even though, as argued by appellant, there may be a searching inquiry into the jurisdiction of the court in which the judgment is rendered, over the subject matter, or the parties affected by it, or into the facts necessary to give such jurisdiction.
This principle, of course, would preclude the impeachment of such judgment on the ground that it was effected through a compromise with the attorney of the defendant, the court being competent to adjudicate the subject and having previously acquired jurisdiction of the parties, regardless of whether or not the defendant had consented to or authorized such disposition of the cause.
The issue made by the replications, then, that the Georgia judgment was the result of a compromise by the attorney of appellant’s liability carrier (and we interpolate, the appellant’s attorney too, under authority of its liability insurance contract) may not be tendered to collaterally impeach the Georgia judgment, the insurance company having acted pursuant to the authority vested in it under the insurance contract^
The current of authority referred to in brief of counsel treating of the relationship between insurer and insured under contracts of liability insurance is not regarded as of influence upon the case in hand. Without burdening the opinion by here declaring the distinction, it will be manifest upon reference to these cases, notably Haluka v. Baker, 66 Ohio App. 308, 34 N.E.2d 68, and Foremost Dairies v. Campbell Coal Co., 57 Ga.App. 500, 196 S.E. 279.
The theory is advanced that the pleas of res judicata ignore other actionable rights the appellant may have even though his contributory negligence was necessarily impleaded and determined in the Georgia suit.
It is true that original contributory negligence is no defense to an action for subsequent negligence proximately causing injury (Central of Georgia R. Co. v. Forshee, 125 Ala. 199(6), 27 So. 1006), and a recovery against a defendant for subsequent negligence is allowable under a sufficient count charging simple negligence in general terms. Southern R. Co. v. LimeCola Co., 210 Ala. 336, 98 So. 1; Birmingham Stove & Range Co. v. Vanderford, 217 Ala. 342, 116 So. 334; 15 Ala. Digest^ Negligence, <®=>119(6).
Likewise, contributory negligence is no defense to a personal action for injuries based on the wanton conduct of the
defendant. Davis v. Smitherman, 209 Ala. 244, 96 So. 208.
Nor does the wanton contributory-conduct of the plaintiff preclude a recovery against the defendant for wantonness as is enunciated in such cases as Central of Georgia R. Co. v. Partridge, 136 Ala. 587, 34 So. 927; Louisville & N. R. Co. v. Orr, 121 Ala. 489, 26 So. 35; Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215; Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A.L.R. 1093.
These considerations, however, are not immanent in the present discussion and are completely dehors the issue presented.
To invite such a review, appellant’s demurrer should have been interposed specifically challenging the sufficiency of the pleas on these grounds, which was not done. No point is taken, either by the demurrer to the pleas or in the replications to invoke a consideration of the last stated principles dealing with negligence or wantonness, and it is deemed inappropriate to undertake a discussion of their applicability to the case as presented. Code 1940, Tit. 7, § 236; Ex parte Payne Lumber Co., 203 Ala. 668, 85 So. 9; Northern Alabama R. Co. v. Winchester, 225 Ala. 197, 142 So. 661; Alabama Power Co. v. Curry, 228 Ala. 445, 153 So. 634; U. S. Health & Accident Ins. Co. v. Coin, 197 Ala. 584, 73 So. 117; Sanders v. Gernert, 221 Ala. 469, 129 So. 46.
In concrete, we have concluded that the pending action cannot escape the bar of the Georgia judgment as presented by the pleas of res judicata and, of consequence, the judgment of the trial court is affirmed.
Affirmed.
GARDNER, C. J., and LIVINGSTON, LAWSON and STAKELY, JJ., concur.
FOSTER, J., specially concurs.
BROWN, J., dissents.