B. R. DeWitt, Inc. v. Hall
| Citation | 264 N.Y.S.2d 68,24 A.D.2d 831 |
| Parties | B. R. DeWITT, INC., Respondent, v. Albert HALL, Appellant. |
| Decision Date | 28 October 1965 |
| Court | New York Supreme Court Appellate Division |
Charles J. O'Brien, Rochester, for appellant; Robert S. Beer, Rochester, of counsel.
Oviatt, Gilman, Clarke & Greisberger, Rochester, for respondent; Percival D. Oviatt, Jr., Rochester, of counsel.
Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HENRY, and DEL VECCHIO, JJ.
In view of the holding in Elder v. New York and Penn. Motor Express, Inc., 284 N.Y. 350, 31 N.E.2d 188, 133 A.L.R. 176, plaintiff may not invoke the doctrines of res judicata or collateral estoppel to assert a prior judgment, obtained by its driver against this defendant in an action arising out of the same accident, as conclusive proof of defendant's liability in the present litigation. (See also Quatroche v. Consolidated Edison Company of New York, 11 A.D.2d 665, 201 N.Y.S.2d 520; Friedman v. Salvati, 11 A.D.2d 104, 201 N.Y.S.2d 709.) The dissent herein is predicated upon the supposition that identity of issues has become the primary consideration in the application of these doctrines. It is not however the sole consideration (Minkoff v. Brenner, 10 N.Y.2d 1030, 255 N.Y.S.2d 47, 180 N.E.2d 434), and we do not regard the decision in Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97, as authority for the offensive use of a prior judgment in the circumstances here presented. In the words of the Court of Appeals, that case was merely an announcement that 'in determining the applicability of the doctrine of res judicata as a defense, the test to be applied is that of 'identity of issues'.' (1 N.Y.2d 120, 151 N.Y.S.2d 5, 134 N.E.2d 100, emphasis supplied.)
Lastly, the views expressed in the dissenting opinion to a large extent are those set forth in the concurring opinion of this court in Ordway v. White, 14 A.D.2d 498, 217 N.Y.S.2d 334. That case was decided in June, 1961 and six months later our highest court decided Minkoff v. Brenner, supra. A reference to the briefs submitted to that court discloses that appellant relied heavily upon the concurring opinion in the Ordway case and contended, as does the dissenting opinion herein, that the true test is identity of issues and not the posture of the parties. The Court of Appeals by its affirmance of the order in Minkoff inferentially rejected those contentions. We conclude that we are bound thereby.
Order reversed without costs of this appeal to either party and motion denied without costs.
This appeal presents in clear focus the question of the applicability of the doctrine of res judicata, or more particularly, whether the principle of collateral estoppel can be asserted as a bar to the trial of the issues of negligence and contributory negligence in an action by an absentee owner against defendant held liable in the prior action. A reading of the cases and the multitude of articles relating to this question underlines the difficulties which confront any judicial determination in this area.
In examining the diffused mosaic which runs through the various decisions, one reaches the conclusion that the applicability of the doctrine of collateral estoppel turns largely on the particular fact situation. The present action is the aftermath of an accident in which one Farnum was the driver of a truck owned by the plaintiff-respondent which collided with an automobile owned and driven by defendant-appellant Hall. Prior to commencement of this action, Farnum had brought suit against Hall for personal injuries sustained in the accident and recovered a substantial jury verdict. Plaintiff absentee owner of the truck has now sued the owner and driver Hall for the property damage to the truck. In this appeal plaintiff asserts that the issue of negligence and contributory negligence having been fully tried in the earlier action between the two drivers, the defendant is estopped from litigation the issue of liability by reason of the jury's verdict in the action of the plaintiff's driver. Defendant-appellant seeks a reversal of Special Term's order granting plaintiff's motion for summary judgment and directing an assessment of plaintiff's property damages.
Collateral estoppel has evolved as a principle of law which estops one from asserting or denying issues of fact and law because these issues have been previously determined in an action in which the party or someone in privity with him has participated. In my view, no clearer set of facts can be presented for an application of the principle than the one with which we are concerned. This rule of law was succinctly stated in Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 18, 9 N.E.2d 758, 759, 112 A.L.R. 401: 'One who has had his day in court should not be permitted to litigate the question anew.' (See, also, Hinchey v. Sellers, 7 N.Y.2d 287, 294, 296, 197 N.Y.S.2d 129, 133, 134, 135, 165 N.E.2d 156, 159, 160; 5 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5011.23.) While one must not be unmindful of the caveat expressed by the same court in Comrs. of State Ins. Fund v. Low, 3 N.Y.2d 590, 595, 170 N.Y.S.2d 795, 798, 148 N.E.2d 136, 138, in its statement of the second rule of public policy that the doctrine should not be used if its applicability deprives a party of his day in court, the case a bar presents a classic example of the fullest day in court that this defendant could possibly have had in the first action brought against him by the operator of plaintiff's truck. The defendant was in every sense of the word a direct and absolute adversary in the action brought by the plaintiff's driver for his personal injuries. Even if Glaser v. Huette, 232 App.Div. 119...
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