34 Cal.2d 209, 20790, Dillard v. Mcknight

Docket Nº:20790
Citation:34 Cal.2d 209
Opinion Judge:[10] Spence
Party Name:Dillard v. Mcknight
Attorney:[7] Dana Williams and Kenneth Sperry for Appellants. [8] Arthur C. Fisher for Respondents.
Case Date:August 25, 1949
Court:Supreme Court of California

Page 209

34 Cal.2d 209

IRENE DILLARD et al., Appellants,



JAMES A. BOWER et al., Respondents.

L. A. No. 20790.

Supreme Court of California

Aug. 25, 1949

In Bank.

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[Copyrighted Material Omitted]

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Dana Williams and Kenneth Sperry for Appellants. Arthur C. Fisher for Respondents.

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Plaintiffs' son died on July 24, 1941, as the result of injuries sustained by him four days earlier in a collision between a Pontiac coupe in which he was a passenger and a Studebaker automobile then being operated by one McKnight in an allegedly negligent manner. To recover damages for their son's death, plaintiffs in September, 1941, instituted the instant action against said McKnight; his employer, J. F. Wilcox; the owner of the Studebaker automobile, W. J. Neville; Thorley Oil Company; and several fictitiously named defendants. On August 11, 1942, the cause went to trial as to certain defendants on the first amended complaint and at the conclusion thereof, a motion for a nonsuit was granted as to defendant Thorley Oil Company. Judgment was then ordered "for the plaintiffs against the defendants General Jackson McKnight and J. F. Wilcox in the sum of $7500.00 and ... in favor of the defendant W. J. Neville." The court found, among other things, that "at all times herein mentioned, defendant General Jackson McKnight was the agent, servant, and employee of the defendants herein, and that he was acting within the scope of his employment as such agent, servant and employee." Accordingly, on September 2, 1942, judgment was entered in plaintiffs' favor as indicated; it became final, and execution thereon was returned unsatisfied.

As the result of certain evidence adduced upon the 1942 trial, plaintiffs claim to have learned for the first time the identity of James A. Bower and Robert A. Thorley as proper parties to this action. Accordingly thereafter, service of process was made upon them in pursuance of their fictitious designations as Doe IV and Doe V, respectively, and on August 16, 1946, plaintiffs' first amended complaint herein was amended to show their true names. On September 12, 1946, the cause went to trial for the second time before the same judge. At the conclusion of this second trial, it was found by the court that the automobile collision was the "direct and proximate result of the negligence of the defendant General Jackson McKnight"; that on the day of the accident said "defendant General Jackson McKnight was employed by the defendants J. F. Wilcox, Robert A. Thorley, and James A. Bower as a driller" on a certain oil well but "at the time" in question he "was not acting within the scope of his employment." Accordingly, judgment in favor of defendants Bower and Thorley was entered on December 27, 1946; and plaintiffs appeal therefrom.

In taking their appeal, plaintiffs properly note that "all

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of the findings of the trial court were favorable to the plaintiffs, with the exception of the finding that the defendant McKnight was not acting within the scope of his employment at the time of the accident." Their challenge of the propriety of this single adverse finding--the "only" one which "supports the judgment" on the second trial--rests on these two considerations: (1) that the "former judgment herein, wherein it was found that the defendant McKnight was acting within the scope of his employment as an employee of the defendant J. F. Wilcox, is res adjudicata and conclusive of that issue as against the defendants Robert A. Thorley and James A. Bower ... co-partners and joint employers of the defendant McKnight"; and (2) that the "findings of the trial court with respect to whether the defendant McKnight was acting within the scope of his employment at the time of the accident are contrary to the undisputed evidence in the case." Plaintiffs' position cannot be sustained in the light of the record and the legal principles applicable thereto.

It is undisputed that in the "first part of July," 1941, defendant Wilcox was drilling an oil well close to the corner of Main Street and Sepulveda Boulevard, near the town of Lomita, in the county of Los Angeles; that defendant Bower helped finance the venture on a "50-50" basis, and that they ran out of money; that thereupon they began negotiations with defendant Thorley, who operated a producing oil well located on certain property which he owned in the city of Los Angeles; that as a result of these negotiations defendant Thorley invested some money in the "Wilcox well" and on July 14, 1941, as a limited partner executed Articles of Limited Partnership (which were never filed or recorded [Civ. Code, section 2478, subd. (1) (b)]) in connection with such investment; that six days later--July 20, 1941--defendant McKnight, who was then, and theretofore had been, employed as a "driller" by defendant Wilcox, became involved in the accident heretofore mentioned.

Plaintiffs first argue the significance of the established partnership undertaking in relation to the principle of res judicata as a factor in the second trial. That principle precludes parties or their privies from relitigating an issue that has been finally determined by a court of competent jurisdiction. (1 Freeman on Judgments (5th ed.) section 407, p. 887; 2 Black on Judgments (2d ed.) section 504, p. 764; 50 C.J.S., Judgments, section 592, p. 11; 15 Cal.Jur., Judgments, section 166, p. 97.)

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It rests upon the sound public policy that there must be an end of litigation and accordingly, persons who have had one fair trial on an issue may not again have it adjudicated. (Ibid) So it is stated as "an elementary principle, recognized by [our] code [Code Civ. Proc., section 1908, subd. 2], that a judgment or order is operative not only upon parties but to the same extent upon their privies." (15 Cal.Jur., Judgments, section 220, p. 191.) But the application of the principle of res judicata in a given case depends upon an affirmative answer to these three questions: Was the issue decided in the prior adjudication identical with the one presented in the subsequent litigation? Was there a final judgment on the merits? Was the party against whom the principle is invoked a party or in privity with a party to the prior adjudication? (Bernhard v. Bank of America, 19 Cal.2d 807, 813 .)

There is no dispute here, of course, as a matter of record, that the issue of defendant McKnight's scope of employment in relation to the happening of the accident in question was completely adjudicated incident to the entry of judgment against defendant Wilcox at the conclusion of the first trial in this action, and that such judgment has long since become final, but the third essential element relative to the identity of the parties does not appear. It is generally recognized that partners are not in such privity with one another that a judgment against one partner in an action brought against him personally on a tort arising out of the partnership business is res judicata when the same issues are raised in subsequent litigation against another partner. (1 Freeman on Judgments (5th ed.) section 518, p. 1112; 2 Black on Judgments (2d ed.) section 566, p. 852; 50 C.J.S., Judgments, section 806, pp. 351-352; Tonge v. Item Pub. Co., 244 Pa. 417 [91 A. 229, 231-232]; Liebert v. Reiss, 174 A.D. 308 [160 N.Y.S. 535, 536.]; Emmons v. Hirschberger, 69 N.Y.S.2d 401, 402; Pate v. Geo. P. Wyly & Co., 118 Ga. 262 [45 S.E. 217, 218]; Robinson v. Seay, 175 Mo.App. 713 [158 S.W. 409, 412-413]; Ablon v. King (Tex.Civ.App.), 279 S.W. 563, 566; American Photo Player Co. v. Simon, 151 La. 708 [92 So. 307, 308]; cf., Cal. Civ. Code, section 2403, subd. (3) (d), (e).) If the rule were otherwise a partner would be required to discover at his peril any action against his copartner that might conceivably relate to the partnership business and seek to intervene therein. On the second trial the only issue that would be open would be the nature of his relationship to...

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