Ferebee v. Hungate

• Decision Date: 12 March 1951
• Docket Number: No. 3740,3740
• Citation: 63 S.E.2d 761,192 Va. 32
• Court: Virginia Supreme Court
• Parties: CHARLES E. FEREBEE, AN INFANT, ETC. v. E. B. HUNGATE, ET AL. Record

Page 761

63 S.E.2d 761

192 Va. 32

CHARLES E. FEREBEE, AN INFANT, ETC. v. E. B. HUNGATE, ET AL.

Record No. 3740.

Supreme Court of Appeals of Virginia

March 12, 1951.

Louis B. Fine, for the plaintiff in error.

Rixey & Rixey, for the defendants in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This case grew out of a collision on October 31, 1948, between two automobiles, one of which was owned by J. W. Ferebee and operated by his son, Charles E. Ferebee, and the other owned by Lelia E. Hungate and operated by E. B. Hungate, her husband. There were two passengers in the Hungate car, Mrs. Lelia E. Hungate, the owner, and Mrs. Marcella N. Hungate, the mother of E. B. Hungate. This proceeding is the third of three actions brought for damages resulting from the collision.

Lelia E. Hungate sued Charles E. Ferebee and J. W. Ferebee for damages to her automobile and for personal injuries incurred. In that action, J. W. Ferebee and Charles E. Ferebee separately filed cross-claims for damages incurred by them. They denied negligence on their part and alleged that the collision was caused solely by the negligence of E. B. Hungate, the agent and servant of Lelia E. Hungate. J. W. Ferebee filed an affidavit denying operation and control of the automobile driven by his son. (Section 8-115, Code of Va. 1950). Lelia E. Hungate also filed an affidavit denying that the automobile owned by her was under her control or operation. She averred that E. B. Hungate was not her servant or agent in his operation of her car.

On March 9, 1949, the case came on for trial. On motion of Lelia E. Hungate, the defendants' cross-claims were 'stricken from the record.' On motion of the defendants the evidence was 'stricken' as to J. W. Ferebee, for failure to prove agency. Upon the issues joined, a verdict was returned in favor of the plaintiff against the remaining defendant, Charles E. Ferebee, in the sum of $1,500. Judgment was entered accordingly and thereafter paid and satisfied.

In the second action, Marcella N. Hungate sued J. W. Ferebee and Charles E. Ferebee for damages for personal injuries sustained by her. J. W. Ferebee again filed an affidavit denying operation and control of the car driven by his son. A judgment was returned against Charles E. Ferebee for $2,000 in favor of the plaintiff. It has been paid.

Subsequently the third action, this proceeding, was instituted by Charles E. Ferebee against E. B. Hungate and Lelia E. Hungate, for damages for personal injuries alleged to have been sustained by him, by reason of the negligent operation of the Hungate car by the defendants.

The defendants filed a plea of the general issue and a special plea of res judicata and estoppel by judgment. The special plea recited the recovery and satisfaction of the above two judgments. The plaintiff filed his general replication in denial of the special plea. By consent of the parties, the case came on to be heard on the issues made upon the special plea and replication. On motion of the plaintiff, the case was dismissed as to the defendant, Lelia E. Hungate. No action was taken to amend plaintiff's notice of motion accordingly. After hearing the evidence, 'consisting of the records in the cases mentioned in the special plea and the argument of counsel,' the court sustained the plea, and dismissed the action as to E. B. Hungate. We granted a writ of error.

The sole assignment of error is to the action of the court in sustaining the special plea of the defendant, E. B. Hungate.

The plaintiff contends that since E. B. Hungate, the defendant in this proceeding, was not a party to the first two cases, or to the issues tried, the 'full issues' between him and E. B. Hungate have never been determined.

On the other hand, defendant claims that plaintiff has taken a position in this proceeding inconsistent with his previous position in a prior suit touching the same subject matter. His contention is based on the grounds that since plaintiff filed a cross-claim in the former action by Lelia E. Hungate, in which he alleged that E. B. Hungate was her agent, and failed in this proceeding to amend his notice of motion charging both Lelia E. Hungate and E. B. Hungate with responsibility for the operation of the Hungate car, he is bound by his latter pleading as originally framed, and cannot now assert that Lelia E. Hungate was not legally responsible for the operation of her car.

There is no merit in defendant's contention. Better pleading, perhaps, required an amendment to the notice of motion by striking out the name of the dismissed person. However, plaintiff and defendant were each bound by the court's decision, and that, in effect, amended the pleading. There was no objection to the dismissal of Lelia E. Hungate. The sole issues thereafter related to questions of negligence affecting the drivers of the two cars. Agency was not involved.

The parties to this action are not the same as those in either of the two prior actions. E. B. Hungate was not a party to either of the first two cases or to the issues tried therein. Charles E. Ferebee was not called on or required to assert any demand against E. B. Hungate in those proceedings. Lelia E. Hungate, having been dismissed as a defendant, is not a party to this proceeding. The effect of the court order, in dismissing her as a defendant, was to leave the allegations of the notice of motion against E. B. Hungate alone.

The first case, in which Lelia E. Hungate was plaintiff, involved only questions of the negligence of Charles E. Ferebee, and the contributory negligence of Lelia E. Hungate. E. B. Hungate was not involved as a party in the suit of Marcella N. Hungate against Ferebee.

'The doctrine of estoppel by inconsistent position does not apply to a prior proceeding in which the parties are not the same.' The Pittston Co. v. O'Hara, 191 Va. 886, 63 S.E. (2d) 34; 19 Am. Jur., Estoppel, section 73, page 711; 31 C.J.S., Estoppel, section 117, page 372 ff.

This brings us to the controlling question, that is, whether the trial court erred in holding that the judgments in the cases of Lelia E. Hungate and Marcella N. Hungate against Charles E. Ferebee barred the present proceeding against E. B. Hungate.

'The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of the opponent.' 30 Am. Jur., Judgments, section 165, page 911.

'A final valid judgment on the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on the same cause of action; identity of the thing sued for, of the causes of action, of the parties to the action, and of the quality or capacity in which the parties sue or are sued is essential to the application of the doctrine.' 50 C.J.S., Judgments, section 598, page 16.

The defendant overlooks three fundamental essentials in the application of the doctrine of res judicata: (1) There must be identity of persons and parties to the action; (2) There must be an identity of issue; and (3) The operation of estoppels must be mutual.

'If one who asserts the estoppel was not a party to the prior proceeding and is not bound by the judgment relied on, the adverse party is likewise not bound.' The Pittston Co. v. O'Hara, supra; Anderson v. Sisson, 170 Va. 178, 182, 196 S.E. 688; Unemployment Compensation Comm. v. . Harvey, 179 Va. 202, 210, 18 S.E. (2d) 390; Freeman on Judgments, 5th Ed., Vol. 1, section 428, page 929, ff; and Black on Judgments, 2d Ed., Vol. 2, section 610, page 927, ff. See also, 8 M.J., Former Adjudication or Res Adjudicata, page 575, et seq.

The rule of estoppel by judgment is thus stated in Black on Judgments, Vol. 2, 2d Ed., section 534, page 807:

'Judgments and decrees are conclusive evidence of facts only as between parties and privies to the litigation. And, in the case of a former adjudication set up in defense, it is no bar unless the parties to the first judgment are the same as those to the second proceeding. On the principle that estoppels must be mutual, no person is entitled to take advantage of a former judgment or decree, as decisive in his favor of a matter in controversy, unless, being a party or privy thereto, he would have been prejudiced by it had the decision been the other way.'

Further on in section 611, page 928, the same author says:

'There must be an identity of issues. And by this is meant that the issue raised in the second suit, upon which the evidential force of the former judgment is to be directed, must be identical with the issue (or one of the issues) raised and determined in the first action.'

In Capps v. Whitson, 157 Va. 46, 160 S.E. 71, and Owen v. Dixon & Savage, 162 Va. 601, 175 S.E. 41, we dealt with situations somewhat similar to that now confronting us.

Capps v. Whitson, supra, arose out of a collision between the bus of Whitson, being driven by Wilson, his employee, and an automobile of Capps, driven by himself. Lula O. Davidson, who was a passenger in the bus of the plaintiff, brought suit against Capps and Whitson, claiming damages for personal injuries on account of the negligence of both of the defendants. The jury returned a verdict against both defendants, which was paid by them ratably or jointly. Subsequently, Whitson sued Capps for damages alleged to be due him on account of the defendants' negligence in the same automobile accident. The jury returned a verdict for the plaintiff for $675. The court declined to set aside the verdict and the case came before us for review. One assignment of error dealt with the trial court's rejection of the defendants' plea of res adjudicata or estoppel because of the judgment granted in the former case of Davidson v. Capps & Whitson....