Armstrong v. Miller

• Decision Date: 31 August 1972
• Docket Number: No. 8817,8817
• Citation: 200 N.W.2d 282
• Parties: Betty M. ARMSTRONG, Plaintiff and Respondent, v. Harold A. MILLER and Melvin J. Mickelson, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 282

200 N.W.2d 282

Betty M. ARMSTRONG, Plaintiff and Respondent, v. Harold A. MILLER and Melvin J. Mickelson, Defendants and Appellants.

No. 8817.

Supreme Court of North Dakota.

Aug. 31, 1972.

Syllabus by the Court

1. It is a general rule, subject to certain exceptions not applicable in the instant case, that the doctrine of res judicata binds only parties to the action in which the judgment was rendered and their privies and does not affect strangers to the judgment who are neither parties nor in privity with a party to the action.

2. A person bringing an action for the wrongful death of another person under the North Dakota wrongful death statute does so in a representative capacity for the benefit of the heirs at law of the decedent.

3. A surviving wife of one killed by the wrongful act of another is included in the term 'heirs at law' as used in Section 32--21--04, NDCC.

4. A surviving wife is an heir at law of her deceased husband under the laws of succession of the State of North Dakota. Sections 56--01--03 and 56--01--04, NDCC.

5. A surviving wife who brings an action for the wrongful death of her husband does so in a representative capacity for the benefit of the heirs at law, and as an heir at law of her deceased husband she has an interest in the judgment in that action and she is a privy to that action, insofar as that interest is related to that wrongful death action.

6. A surviving wife who brought an action in a representative capacity for the wrongful death of her deceased husband, had such an interest in the judgment in that action as the heir at law of her deceased husband, to be a privy to the action for wrongful death, but the judgment in that action is not res judicata in a subsequent action by the surviving wife for recovery for damages for her personal injuries arising out of the same accident.

Wattam, Vogel, Vogel & Peterson, Fargo, and Dosland, Dosland, Nordhougen & Mickelberg, Moorhead, Minn., for appellant Harold A. Miller.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for appellant Melvin J. Mickelson.

Tenneson, Serkland, Lundberg & Erickson, Fargo, for respondent.

KNUDSON, Judge.

This is an appeal from summary judgments in favor of Betty M. Armstrong against the defendants Harold A. Miller and Melvin J. Mickelson on the issue of liability only. From these judgments the defendants appeal and raise the question whether the doctrine of collateral estoppel or res judicata entitles the plaintiff in this lawsuit to summary judgment regarding the liability of the defendants on the basis of the jury's verdict in prior lawsuit.

In the present action, Mrs. Armstrong claims damages to her person arising out of the negligence of the defendants in an accident on or about May 30, 1969, when the automobile driven by her husband was in a collision with the truck of Mr. Miller and the automobile of Mr. Mickelson.

In the prior action Mrs. Armstrong recovered judgments against Mr. Miller and Mr. Mickelson for the wrongful death of her husband, who was killed in that accident. The jury found that Mr. Miller and Mr. Mickelson were negligent in the operation of their respective motor vehicles and that such negligence was the proximate cause of the death of Mr. Armstrong.

Mr. Miller and Mr. Mickelson contend that the prior action for the wrongful death of her husband was brought by Mrs. Armstrong in a representative capacity under the North Dakota wrongful death statute. They claim that the plaintiff is attempting to use the judgment in the prior action offensively to preclude the defendants from litigating the issue of their liability to the plaintiff for her personal injuries. They argue that the doctrine of collateral estoppel or res judicata may not be used offensively to allow the plaintiff in this action to have summary judgments on the basis of the jury's verdict in the prior action on the theory that the doctrine of res judicata or collateral estoppel does not operate to benefit strangers to a judgment. They claim that Mrs. Armstrong was not a party or privy to a party in the prior action. They assert that in that action, brought under the North Dakota wrongful death statute, the plaintiff, Mrs. Armstrong, was suing in a representative capacity to recover damages for the wrongful death of her husband, and the judgment in that action was binding on the plaintiff, individually, only insofar as it affected her right to claim damages from these defendants for loss of support and other pecuniary damages sustained by reason of her husband's death; but is not binding on the plaintiff in the present action, as this is a separate action brought by the plaintiff in an individual capacity seeking to recover damages for her own personal injuries, and she is attempting to use the judgment in the prior action offensively to preclude the defendants from litigating the issue of their liability to Mrs. Armstrong for her personal injuries.

The prior action was brought by Mrs. Armstrong against Mr. Miller and Mr. Mickelson under the North Dakota wrongful death statute. At common law no action would lie to recover damages for the wrongful death of a person, although such death clearly involved pecuniary loss to the person seeking compensation. The right of action for wrongful death is statutory. The statutory provisions upon which the plaintiff's right to maintain the action depends are contained in Chapter 32--21, North Dakota Century Code.

Section 32--21--01, N.D.C.C., declares that those who wrongfully or negligently cause an injury resulting in the death of another are liable notwithstanding the death of the person injured.

The right to bring the action is vested by § 32--21--03, N.D.C.C., in the following persons in the order named: (1) the surviving husband or wife, if any; (2) the surviving children, if any; (3) the surviving mother or father; and (4) the personal representative.

Section 32--21--04, N.D.C.C., exempts the amount recovered from liability for the debts of the decedent and provides for whose benefit the action is brought, 'but shall inure to the exclusive benefit of his heirs at law in such shares as the judge before whom the case is tried shall fix in the order for judgment, and for the purpose of determining such share after the trial may make any investigation which he deems necessary.'

The issue here resolves itself to the question whether Mrs. Armstrong was a party or a privy to a party in the prior action. If she was a party or a privy to a party in the prior action, in which the defendants were found to be negligent, then the doctrine of res judicata may be applicable in the present action to determine the issue of the negligence of the defendants in the present action. And in the present action the trial court said that the doctrine of res judicata was applicable and held that the finding of the negligence of the defendants in the prior action was determinative of the liability of the defendants in the present action and granted summary judgment on that issue only in favor of the plaintiff.

In Feather v. Krause, 91 N.W.2d 1 (N.D.1958), at Syllabus 3, we said:

It is a general rule, subject to certain exceptions not applicable in the instant case, that the doctrine of res judicata binds only parties to the action in which the judgment was rendered and their privies and does not affect strangers to the judgment who are neither parties nor in privity with a party to the action.

With regard to the persons as to whom the doctrine of res judicata is applicable, the rule is well settled that a judgment is binding in favor of or against all parties to the proceedings in which it is rendered, and their privies, whether the doctrine is asserted on behalf of the plaintiff or defendant in the subsequent action.

46 Am.Jur.2d Judgments § 518, page 669.

The doctrine of res judicata as stated in many cases is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.

30 Am.Jur. Judgments § 324, cited in Robertson Lumber Co. v. Progressive Contractors, Inc., 160 N.W.2d 61, 76 (N.D.1968).

In Union National Bank of Minot v. Western Building Co., 44 N.D. 336, 175 N.W. 628, 630--631 (1919), this court said, quoting from 10 R.C.L. pp. 1116, 1117, § 323:

'Upon established principles, a judgment binds and is admissible against parties to the suit in which it is rendered; and privies are, of course, bound, as they are the representatives of the real parties; but beyond these a judgment in personam is evidence only of the fact of its own rendition; it may not be introduced to establish the facts upon which it has been rendered. It is an axiom of the law that no man shall be affected by proceedings to which he is a stranger--to which, if he is a party, he must be bound. He must have been directly interested in the subject-matter of the proceedings, with the right to make defense, to adduce testimony, to cross-examine the witnesses on the opposite side, to control in some degree the proceedings, and to appeal from the judgment. Persons not having these rights are regarded as strangers to the cause.'

See also, 46 Am.Jur.2d Judgments § 519, in which the same analysis of the rule is stated.

In Hull v. Rolfsrud, 65 N.W.2d 94 (N.D.1954), the court said, citing 72 C.J.S. Privity, page 958:

'In order to make a man a privy to an action he must have acquired an interest in the subject matter of the action either by...