Atkins v. Bituminous Cas. Corp., 45876
| Decision Date | 04 June 1971 |
| Docket Number | No. 45876,No. 3,45876,3 |
| Citation | 183 S.E.2d 1,124 Ga.App. 1 |
| Parties | Rachel D. ATKINS v. BITUMINOUS CASUALTY CORPORATION |
| Court | Georgia Court of Appeals |
James I. Parker, Cedartown, for appellant.
Mundy, Gammage & Cummings, William W. Mundy, Cedartown, for appellee.
Syllabus Opinion by the Court
William Horace Atkins filed suit against D. M. Evans, as the owner of a certain truck, and against James L. Jones, the driver, alleging that Jones had been Evans' employee, that Evans had entrusted it to him when he knew that Jones was in an intoxicated condition, that the truck was in a defective condition in that its gears could not be changed under stated conditions, that at night Jones had parked the truck on the highway so as to leave the rear end of it blocking plaintiff's right of way, with no lights thereon and no warning thereof, and that plaintiff had drvien his car into the rear of the truck and thereby suffered serious injuries to himself and damage to his car.
Plaintiff amended, striking from the petition the allegations that defendant Jones was, at the time referred to, the servant or agent of defendant Evans or that he was acting within the scope of his employment, and alleged instead that Evans had 'entrusted the vehicle involved in the collision herein complained of to defendant Jones with permission to drive the same.' It was also alleged that at the time of the collison Jones was intoxicated, that the vehicle was mechanically defective, and that Evans had been negligent in permitting Jones to drive the defective vehicle while intoxicated.
Defendant Evans answered, denying these allegations and specifically asserted that on the occasion of the collision Jones had not operated the vehicle with his knowledge, consent or authority. Jones answered, denying the allegations that he had been intoxicated or that he had been negligent on the occasion in any way or manner.
Upon a trial the jury returned a verdict against Jones, but in favor of Evans. Jones sought and obtained a new trial. Jones v. Atkins, 120 Ga.App. 487, 171 S.E.2d 367. There was no appead from the verdict and judgment in favor of Evans. Atkins died and his widow, as administratrix, was substituted as plaintiff in the action. It was retried against Jones only and again there was a verdict for the plaintiff against him. The judgment thereon has not been fully satisfied and the administratrix now seeks to recover from Bituminous Casualty Company, which had issued a liability policy to Evans, alleging that Jones had operated the vehicle with Evans permission and was thus an additional insured under the policy.
Bituminous Casualty answered, admitting that it had issued a policy to Evans on the vehicle, but denied that it was liable thereunder, asserting that the issue of whether Jones had operated the vehicle with Evans' permission had been adjudicated adversely to plaintiff by the verdict and judgment in Evans' favor in the former action. Attached to its answer were copies of the petition, as maended, the defensive pleadings filed by Evans and by Jones and of the verdict and judgment in Evans' favor. Upon the pleadings in the present action Bituminous moved for summary judgment and from a grant of the motion the administratrix appeals. Held:
1. Although Bituminous Casualty is a privy by contract of Evans who was a party to the former action, and thus there is sufficient identity of the parties to the prior action and to the present action to authorize the invoking of res judicata, the causes of action are not the same. The former action was in tort, while the present action is in contract. Consequently, res judicata does not apply to bar the present action. Banks v. Employees Loan & Thrift Corp., 112 Ga.App. 38(3), 143 S.E.2d 787.
2. However, if estoppel by judgment is applicable to the situation the pleadings are sufficient to invoke it, for the nomenclature used in referring to the effect of the prior judgment as being that of res judicata instead of estoppel by judgment is immaterial. Grubbs v. Dowse, 226 Ga. 763, 177...
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... ... See also ... Atkins v. Bituminous Cas. Corp., 124 Ga.App. 1, 2-3 ... (2) ... ...
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Collins v. Booker
...the judgment in that case can not serve as estoppel by judgment here. Smith v. Wood, 115 Ga.App. 265, 154 S.E.2d 646; Atkins v. Bituminous Cas. Corp., 124 Ga.App. 1(2, 3), 183 S.E.2d 6. Questions as to whether under the facts here plaintiff is entitled to proceed jointly against Booker, the......
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Robertson v. Central Mut. Ins. Co.
...such that it had, of necessity, to be determined by the court or jury, before the court could give judgment.' [Cits.]" Atkins v. Bituminous Cas. Corp., 124 Ga.App. 1, 3(3, 4), 183 S.E.2d 1 That rule is controlling here. The only matter in issue in the Cherokee County suit was whether Yeager......
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Berganski v. Caswell Realty Co., 59532
...in Fulton County, the plaintiff is estopped from again raising this issue in the Gwinnett County action. Atkins v. Bituminous Casualty Corp., 124 Ga.App. 1, 183 S.E.2d 1 (1971). The only other allegation against Caswell Realty is that it made false representations that the heating, applianc......