Anderson v. Sisson

• Decision Date: 28 April 1938
• Citation: 170 Va. 178
• Court: Virginia Supreme Court
• Parties: DAISY ANDERSON v. KEELING H. SISSON.

Page 178

170 Va. 178

DAISY ANDERSON v. KEELING H. SISSON.

Supreme Court of Virginia, Richmond.

April 28, 1938.

Present, All the Justices.

1. FORMER ADJUDICATION OR RES ADJUDICATA — Identity of Parties — Separate Actions by Father as Next Friend of Two Minor Children — Case at Bar. — In the instant case two separate actions were brought by a father, as next friend, to recover for injuries received by his two minor children when struck by an automobile. The first action resulted in a judgment for plaintiff which was affirmed on appeal, and before the second case was called for trial plaintiff filed pleas of estoppel and res adjudicata, contending that the former action involved the same parties plaintiff and defendant and was for injuries resulting from the same acts of negligence.

Held: That the two actions were instituted by different parties to recover separate damages, and a release and discharge by one of the plaintiffs would not have released or discharged the defendant as to his liability to the other. The mere fact that the father was named as the next frine of both minors did not make the causes of action less separate and distinct.

2. FORMER ADJUDICATION OR RES ADJUDICATA — Judgment in Favor of One of Two Injured Parties Does Not Establish Defendant's Liability of Other. — If two people are injured by one defendant in an accident, a final judgment in favor of one of the injured parties does not conclusively establish the same defendant's liability for damages sustained by the other injured party.

3. FORMER ADJUDICATION OR RES ADJUDICATA — Necessity that Former Judgment Bind Both Parties. — No party is, as a general rule, bound in a subsequent proceeding by a judgment, unless the adverse party seeking to secure the benefit of the former adjudication would have been prejudiced by it if it had been determined the other way. And conversely if the judgment binds one party it binds the other, even though he was successful in the litigation. The operation of estoppels must be mutual, and both the litigants must be alike concluded, or the proceedings cannot be set up as conclusive upon either.

4. NEGLIGENCE — Res Ipsa Loquitur — Doctrine Not Limited to Cases Involving Contractual Relations. — The doctrine of res ipsa loquitur is no longer limited to cases in which the injured party occupied contractual relations to the defendant.

5. NEGLIGENCE — Res Ipsa Loquitur — When Presumption of Negligence Arises from Simple Occurrence of Accident. — A presumption of negligence from the simple occurrence of an accident arises where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or miscontruction of a thing over which the defendant was immediate control, or for the management or construction of which he is responsible.

6. NEGLIGENCE — Res Ipsa Loquitur — Does Not Shift Burden of Proof. — The rule of res ipsa loquitur does not have the effect of shifting the burden of proof, and does not convert defendant's general issue into an affirmative defense, but when the evidence is all in, the question of preponderance of evidence is for the jury.

7. NEGLIGENCE — Res Ipsa Loquitur — Proper Instructions. — Under the doctrine of res ipsa loquitur the jury may be instructed that it is not incumbent on defendant to account for the means or cause of the happening of the event resulting in injury to plaintiff; or that, after due consideration of all the evidence, if they believed that it was just as probable that the injury resulted from a cause for which defendant was not responsible as a cause for which it was responsible, they should find for defendant.

8. NEGLIGENCE — Res Ipsa Loquitur — Not Confined to any Specific Class of Tort. — The doctrine of res ipsa loquitur is not confined to any specific class of tort, but is available to plaintiff in any action based on negligence, where the instrumentality producing the injury is under the exclusive control of the defendant, and the accident is of such a character as does not occur if due care is used. The presumption or inference arises from the nature of the accident and from the circumstances, not from the mere happening of the accident itself.

9. AUTOMOBILES — Res Ipsa Loquitur — Instructions Placing Burden on Defendant to Establish Negative Case at Bar. — In the instant case, an action to recover for injuries received when plaintiff was struck by an automobile, the court instructed the jury that if they believed that plaintiff was struck and injured by defendant's automobile while she was walking on the sidewalk, then the burden of proof shifted to defendant to establish by the preponderance of evidence that the injury to plaintiff was unavoidable, and that he did everything that a reasonably prudent person would have done under the facts and circumstances to prevent injuring her, and that if he failed to carry this burden, he was guilty of negligence.

Held: That the instruction was incorrect when it told the jury that the fact that plaintiff was struck on the sidewalk made it incumbent upon defendant to overcome the presumption of negligence by the greater weight of evidence, thereby placing a burden upon the defendant to establish a negative by preponderance of the evidence.

10. AUTOMOBILES — Res Ipsa Loquitur — Instructions Based on Principle that Burden of Proving Negligence Remained on Plaintiff — Case at Bar. — In the instant case, an action to recover for injuries received by plaintiff when struck by an automobile while she was walking on a sidewalk, instructions for defendant told the jury that the burden was upon the plaintiff to prove by affirmative and preponderating evidence that the defendant was negligent and that, if, after considering all the evidence, the jury believed that it was equally balanced, then the plaintiff could not recover.

Held: That the instructions are based on the principle that the burden of proving the negligence alleged remained on plaintiff throughout the case, and were correct.

Error to a judgment of the Hustings Court, Part II, of the city of Richmond. Hon. Ernest H. Wells, judge presiding. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

Thomas A. Williams, L. C. O'Connor and C. W. Ferrell, for the plaintiff in error.

James H. Price and David Meade White, for the defendant in error.

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

Daisy and Elijah Anderson, minor children of Daniel Anderson, while walking on the sidewalk of St. James street, in the city of Richmond, were struck and injured by an automobile driven by K. H. Sisson. Each minor, by Daniel Anderson as next friend, and Daniel Anderson in his own right, instituted separate actions against Sisson — the minors to recover for personal injuries, and the father to recover sums expended for medical attention, to, and loss of services of, the injured children.

The action instituted by Elijah Anderson was tried first and resulted in a judgment for him, which judgment was affirmed by this court on the ground that the conflict in evidence presented a jury question. After the publication of the opinion in Elijah Anderson's Case, Sisson Anderson, 165 Va. 629, 183 S.E. 431, the other two cases were tried together and resulted in a verdict for defendant. The trial court sustained a motion to set aside the verdict as to Daniel Anderson and entered judgment in the sum of seventy-five dollars in his behalf for the medical care and attention incurred by him for necessary treatment of the children for injuries received. As the judgment for seventy-five dollars was less than the jurisdictional amount, the defendant could not, and the plaintiff, Daniel Anderson, did not seek to have that judgment reviewed by this court.

The court overruled the motion of Daisy Anderson and entered judgment on the verdict for defendant. Daisy Anderson, from that judgment, sought and obtained this writ of error.

Before the case was called for trial, plaintiff, in an attempt to hold defendant guilty of negligence as a matter of law, filed two pleas, one of estoppel and the other a plea of res adjudicata. The trial court rejected both pleas, which ruling is brought under review by the plaintiff's first assignment of error.

The material allegations in each plea are that the former action resulting in a verdict and judgment for plaintiff involved the same parties plaintiff and defendant and was for injuries resulting from the same acts of negligence. While Daniel Anderson was named as a party plaintiff in the former action, he was not the real plaintiff but was a party in his representative capacity as next friend of Elijah Anderson. In the case now under consideration he is a party plaintiff in his representative capacity as the next friend of his daughter, Daisy Anderson. The two actions were instituted by different parties to recover separate and distinct damages. A release and discharge by one of the plaintiffs would not release or discharge the defendant as to his liability to the other. The mere fact that the father was named as the next friend of both minors for the purpose of instituting the actions did not make the causes of action less separate and distinct.

The simple question is, If two people are injured by one defendant in an accident, does a final judgment in favor of one of the injured parties conclusively established the same defendant's liability for damages sustained by the other injured party?

"No party is, as a general rule, bound in a subsequent proceeding by a judgment, unless the adverse party now seeking to secure the benefit of the former adjudication would have been prejudiced by it if it had been determined the other way. And conversely if the judgment binds one party it binds the other, even though he was successful in the litigation. `The operation of estoppels must be mutual. Both...