Vaughn's Adm'r v. Louisville & N.R. Co.

Citation297 Ky. 309,179 S.W.2d 441
PartiesVAUGHN'S ADM'R v. LOUISVILLE & N. R. CO. LOUISVILLE & N. R. CO. v. VAUGHN et al.
Decision Date22 February 1944
CourtCourt of Appeals of Kentucky

Rehearing Denied May 2, 1944.

Appeal from Circuit Court, Hart County; L. B. Handley, Judge.

Action by Robert Vaughn, Sr., administrator of the estate of Robert Vaughn, Jr., against the Louisville & Nashville Railroad Company for death of Robert Vaughn, Jr., in a crossing collision, wherein defendants filed answer, cross-petition and counterclaim in which Robert Vaughn, Sr., individually and others were made defendants and contribution was sought for amounts paid in satisfaction of judgments against defendant railroad in other actions for death of persons killed in the same collision. From a judgment dismissing the petition, the original plaintiff appeals, and from a judgment sustaining a demurrer to defendant railroad's answer cross-petition, and counterclaim, and dismissing the counterclaim, defendant appeals.

Affirmed.

Where causes of action are the same, final judgment on merits in first action is a complete "bar" to second action but, where causes of action are different, first judgment cannot operate as a "bar" but may defeat second action by "estoppel" because it conclusively and negatively adjudicates some fact essential thereto.

Where verdicts and judgments were recovered in the sums of $2,500 against railroad and $400 against truck owners as joint defendants in actions for deaths of truck occupants in crossing collision, and judgments were satisfied, railroad could not subsequently ask for additional contribution from truck owners.

Finn & Orendorf, of Bowling Green, for the Vaughns.

Dowling & Baird, of Munfordville, Rodes & Willock, of Bowling Green, and H. T. Lively, of Louisville, for Louisville & N. R. Co.

REES, Justice.

Robert Vaughn, Jr., a boy 16 years of age, was killed on May 24 1941, when a truck driven by him was struck by a freight train of the Louisville & Nashville Railroad Company at a public crossing in Horse Cave, Kentucky. Two other young boys Guy Tosh, Jr., and David Smith, were riding in the truck with young Vaughn when the accident occurred. They also were killed. The truck was owned and operated by Mattie Vaughn, grandmother of Robert Vaughn, Jr., and by Robert Vaughn, Sr., and Elizabeth Vaughn, his father and mother, respectively.

Mattie Vaughn, Robert Vaughn, Sr., and Elizabeth Vaughn were jointly engaged in the business of selling and delivering dairy products in the city of Horse Cave, and the truck was being used to deliver daily products at the time of the accident. The administrators of Guy Tosh, Jr., and David Smith brought actions in the Hart circuit court against the Louisville & Nashville Railroad Company, Mattie Vaughn, Robert Vaughn, Sr., and Elizabeth Vaughn to recover for the deaths of their decedents. In their petitions they alleged that Robert Vaughn, Jr., was the agent, servant and employee of Mattie Vaughn, Robert Vaughn, Sr., and Elizabeth Vaughn, and that he carelessly, recklessly, and negligently drove the dairy truck onto the railroad track, and that the railroad company and its agents and employees carelessly and negligently ran its train into the truck. They further alleged that the deaths of their decedents resulted by reason of the joint and concurrent acts of negligence of the defendants, the Louisville & Nashville Railroad Company and the Vaughns, by and through their agent, servant and employee. In their answer the Vaughns denied that Robert Vaughn, Jr., carelessly, recklessly or negligently drove the dairy truck onto the railroad track or that the deaths of Guy Tosh, Jr., and David Smith resulted directly or proximately from the joint or concurrent carelessness or negligence or any carelessness or negligence of Mattie Vaughn, Robert Vaughn, Sr., or Elizabeth Vaughn. In a separate paragraph they pleaded contributory negligence of the decedents. The railroad company in its answer alleged that Robert Vaughn, Jr., negligently operated the dairy truck and drove it into the engine of the railroad company's train without any negligence or fault on the part of the railroad company, its agents or servants, and that the collision occurred as the proximate result of the negligence of Robert Vaughn, Jr. In amended petitions the administrators of the estates of Guy Tosh, Jr., and David Smith alleged that the crossing where the collision occurred was unusually dangerous. Later Robert Vaughn, Sr., administrator of the estate of Robert Vaughn, Jr., deceased, brought an action in the Hart circuit court against the Louisville & Nashville Railroad Company to recover for the death of his intestate. A motion was made to try all three of the cases together. The railroad company objected, and its objection was sustained. The Smith and Tosh cases were consolidated and tried together. The defendants, Mattie Vaughn, Elizabeth Vaughn, and Robert Vaughn, Sr., filed a motion in which it was stated that their interests and the interests of the railroad company were antagonistic, that their defenses were wholly inconsistent with the defenses of the railroad company, and moved the court to impanel a jury of 21 so that each set of defendants might have three challenges. Their motion was sustained. The trial of the Smith and Tosh cases resulted in a verdict and judgment for the plaintiff in each case in the amount of $2,500 against the Louisville & Nashville Railroad Company and $400 against Mattie Vaughn, Elizabeth Vaughn, and Robert Vaughn, Sr. The plaintiff's costs in each case were adjudged one-half against the railroad company and one-half against the Vaughns. The judgments were satisfied by the respective defendants.

Thereafter, in the action of Robert Vaughn, Sr., administrator of the estate of Robert Vaughn, Jr., against the Louisville & Nashville Railroad Company, the defendant filed an amended answer, cross-petition, and counterclaim in which Robert Vaughn, Sr., Elizabeth Vaughn, and Mattie Vaughn were made defendants. In paragraph one of the pleading the railroad company adopted the allegations of its original answer. In paragraph two it pleaded the judgments in the Smith and Tosh cases in bar to a right of recovery by Robert Vaughn, Sr., administrator of the estate of Robert Vaughn, Jr. It was alleged that Robert Vaughn, Jr., at the time of his death, owed no debts, had no creditors, and that his father and mother, Robert Vaughn, Sr., and Elizabeth Vaughn, were his sole heirs at law and would be entitled to the benefit of any judgment which Robert Vaughn, Sr., as administrator, might recover against the railroad company; that the action brought against the railroad company by the administrator of Robert Vaughn, Jr., was for the benefit of himself and his wife, Elizabeth Vaughn; and that they were estopped because in the Tosh and Smith cases, in which they were parties, it had been adjudged that Robert Vaughn, Jr., as the driver of the truck, was himself negligent, and that his negligence directly and proximately contributed to bring about the collision with the defendant's train. It was further alleged that Robert Vaughn, Sr., Elizabeth Vaughn, and Mattie Vaughn were present during the trial of the Smith and Tosh cases, in person and by counsel, and actively participated in the trial, examining witnesses and arguing the cases before the jury, and, at the conclusion of the trial and after the verdict had been entered, filed no motion for a new trial. The third paragraph of the railroad company's answer was made a cross-petition and counterclaim against Robert Vaughn, Sr., administrator of Robert Vaughn, Jr., Robert Vaughn, Sr., individually, Elizabeth Vaughn, and Mattie Vaughn for contribution based upon the amounts which the railroad company paid in satisfaction of the judgments in the Smith and Tosh cases. A general demurrer to the amended answer, cross-petition, and counterclaim was overruled as to the paragraph pleading the judgments in the Smith and Tosh cases in bar of the plaintiff's right of recovery, and sustained as to paragraph three pleading right of contribution. A reply was filed and a demurrer thereto was sustained. The plaintiff declined to plead further, his petition was dismissed, and he has appealed. The railroad company has appealed from the judgment sustaining the demurrer to paragraph three of its answer, cross-petition, and counterclaim and dismissing its counterclaim against the defendants, Robert Vaughn, Sr., Elizabeth Vaughn, and Mattie Vaughn. The two appeals have been consolidated.

The issues made by the pleadings prior to the filing of the amended answer by the railroad company were whether or not the collision between the truck driven by Robert Vaughn, Jr.,...

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