Beall v. Doe, 0157

• Decision Date: 03 February 1984
• Docket Number: No. 0157,0157
• Citation: 315 S.E.2d 186,281 S.C. 363
• Parties: Paul Allen BEALL, Respondent, v. John DOE and Larry Conerly, Defendant, of whom Larry Conerly is Appellant. Appeal of CONERLY (Larry). . Heard
• Court: South Carolina Court of Appeals

Page 186

315 S.E.2d 186

281 S.C. 363

Paul Allen BEALL, Respondent, v. John DOE and Larry Conerly, Defendant of whom Larry Conerly is Appellant Appeal of CONERLY (Larry).

No. 0157.

Court of Appeals of South Carolina.

Heard Feb 3, 1984.

Decided April 23, 1984.

J. Reese Daniel, Columbia, for appellant.

John K. Koon, Robert A. McKenzie, and Thomas K. Fowler, Jr., Columbia, for respondent.

GOOLSBY, Judge:

In this personal injury action, the appellant Larry Conerly appeals from a finding by the trial court that he is collaterally estopped from asserting that he was not the driver of an automobile which injured the respondent Paul Allen Beall. We affirm.

On April 15, 1979, Beall was operating a motor vehicle on Columbia College Drive in the City of Columbia, South Carolina. The owner of the automobile, Margaret Shaye Sheppard, was his passenger. While waiting to make a left turn, they were struck from behind by a motor vehicle owned by Conerly. Immediately after the collision, the driver of the Conerly automobile jumped from the vehicle and fled the scene.

Beall and Sheppard later brought separate actions against Conerly and John Doe. He sought damages for personal injuries and she sought damages for personal injuries and property damages. Both complaints alleged identical specifications of negligence against the driver of the Conerly automobile.

The pertinent part of the Beall complaint read:

4. That on or about the 15th day of April, 1979, the Plaintiff was driving in an easterly direction on Columbia College Drive in the City of Columbia, South Carolina; that the Defendant, LARRY CONERLY, who owns a 1971 Pontiac Automobile, which was titled in his name, was also driving his car in an easterly direction on Columbia College Drive; and that when the Plaintiff stopped to make a left turn, the Defendant ran into his vehicle and left the scene of the accident. That if LARRY CONERLY were not the driver of the 1971 Pontiac Automobile, then JOHN DOE, an unknown driver, was driving the vehicle and committed the aforesaid acts.

The Sheppard complaint similarly alleged:

4. That on or about the 15th day of April, 1979, the Plaintiff was a passenger in her car which was being driven by Paul Allen Beall in an easterly direction on Columbia College Drive in the City of Columbia, South Carolina; that the Defendant LARRY CONERLY, who owns a 1979 Pontiac Automobile, which was titled in his name, was also driving his car in an easterly direction on Columbia College Drive; and that when the vehicle in which the Plaintiff was riding stopped to make a left turn, the Defendant ran into it and left the scene of the accident. That if LARRY CONERLY were not the driver of the 1971 Pontiac Automobile, than JOHN DOE, an unknown driver, was driving the vehicle and committed the aforesaid acts.

The answers of both defendants denied that they were driving the Conerly vehicle.

Sheppard's case reached trial before Beall's. During the trial, which Conerly did not attend, Sheppard published Conerly's deposition. At the close of the evidence, the jury was instructed that either Conerly or Doe was responsible for any damages sustained by Sheppard and that the question of damages and the identity of the driver of the Conerly automobile were for the jury to determine. The jury returned a verdict in favor of Sheppard against Conerly. No appeal was taken by Conerly from the verdict and judgment.

Two months later, the Beall case was called for trial. At the call of the case and upon Beall's motion, the trial judge, who had also presided over the trial of Sheppard's action against Doe and Conerly, held that Conerly was collaterally estopped from denying that he was driving the automobile that hit the Sheppard vehicle since the issue had been fully litigated in the first trial and further litigation of the identical issue was precluded by the former judgment. A judgment in Beall's favor was later granted in a stipulated amount. Doe was dismissed as a party defendant on the ground of collateral estoppel because the prior trial established that Doe was not the driver of the car that injured Beall and Sheppard. Beall did not appeal Doe's dismissal.

Conerly argues first that the trial court erred in applying the doctrine of collateral estoppel sua sponte because it had not been pleaded.

We agree that, as a general rule, a former adjudication must be pled in order to make the doctrine of collateral estoppel operative in a particular case. S.C. Department of Social Services v. Thompson, 273 S.C. 569, 257 S.E.2d 747 (1979); Connell v. Connell, 249 S.C. 162, 153 S.E.2d 396 (1967); Clifton v. Darlington Finance Co., 231 S.C. 672, 100 S.E.2d 404 (1957). But like most general rules, the requirement that collateral estoppel be pled has its exceptions. One such exception is "where the matter constituting the estoppel ... becomes an issue without objection based upon the lack of pleading." 46 Am.Jur.2d Judgments § 584 at 748 (1969).

At no time did Conerly raise any objection to the issue of collateral estoppel being determined by the trial court on the ground that the issue had not been framed by the pleadings; therefore, Conerly waived any objection which he might otherwise have had to the trial court's consideration of the issue of whether the former adjudication precluded Conerly from denying that he was the driver of the automobile in question.

Conerly next maintains that the adjudication in the prior action of the issue concerning the identity of the Conerly automobile's driver did not operate to preclude or estop him from denying he was the driver of that car in the later action because the plaintiffs were neither identical nor in privity. In other words, he argues that collateral estoppel, especially where asserted offensively, requires mutuality and in this instance none was demonstrated.

In Graham v. State Farm Fire and Casualty Ins. Co., 277 S.C. 389, 391, 287 S.E.2d 495, 496 (1982), the Supreme Court held that a lack of privity would not prevent the application of the defense of collateral estoppel where "the party adversely affected had a full and fair opportunity to litigate the relevant issue effectively in the prior action." See also Kirby v. Gulf Oil Corp. , 230 S.C. 11, 94 S.E.2d 21 (1956); Watson v. Goldsmith, 205 S.C. 215, 31 S.E.2d 317 (1944); Jenkins v. Atlantic Coast Line R. Co., 89 S.C. 408, 71 S.E. 1010 (1910); cf. Cooper v. John Hancock Mutual Life Ins. Co., 248 S.C. 534, 151 S.E.2d 668 (1966).

Approximately ten months after Graham was decided, the South Carolina Supreme Court issued its decision in Irby v. Richardson, 278 S.C. 484, 298 S.E.2d 452 (1982). In that case, the plaintiff brought a legal malpractice action against an attorney who had represented him in a domestic action initiated by his wife. The Supreme Court held, among other things, that the doctrine of collateral estoppel precluded the plaintiff from relitigating in the legal malpractice action an issue finally determined against the plaintiff in the domestic action even though the attorney was not a party to that action.

Both Graham and Irby involved the defensive application of nonmutual collateral estoppel. Here, however, nonmutual collateral estoppel is asserted offensively. So far as we can determine, no appellate court of this state has been asked to decide whether the doctrine of collateral estoppel can be applied so as to preclude a defendant in a personal injury action from contesting a particular issue that has been decided against the defendant in a previous action brought by a stranger to the subsequent action.

We are aware of Watkins v. M. & M. Tank Lines, Inc., 694 F.2d 309 (4th Cir.1982), a diversity action, which was neither cited nor called to our attention by either party. There, the United States Court of Appeals for the Fourth Circuit reversed the district court's holding that under South Carolina law the doctrine of offensive collateral estoppel would preclude the relitigation of the issue of liability where the issue was decided adversely to the defendant in a prior action. See Watkins v. M. & M. Tank Lines, Inc., 527 F.Supp. 290 (D.S.C.1981). In holding "that the South Carolina Supreme Court would refuse to apply collateral estoppel at all" in that situation, the United States Court of Appeals relied upon Priester v. Southern Ry., 151 S.C. 433, 149 S.E. 226 (1929) and its progeny, Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44 (1954), and Hiott v. Contracting Services, 276 S.C. 632, 281 S.E.2d 224 (1981). The district court held that Priester, which both Gillespie and Hiott expressly relied upon, was not dispositive of the issue of whether the South Carolina Supreme Court would apply collateral estoppel to the facts of that case. As the district court read Priester, the issue in that case concerned whether the doctrine of res judicata barred a plaintiff's action in its entirety and not whether the doctrine of collateral estoppel barred relitigation of the liability issue. ¹ 527 F.Supp at 291-92. The United States Court of Appeals, however, concluded that issue preclusion involving both doctrines was before the court in Priester, 694 F.2d at 312.

The United States Court of Appeals, we feel, missed the point. The real issue, it seems to us, did not involve the question of whether Priester, Gillespie, and Hiott held that the defense of collateral estoppel will not bar the prosecution of a claim when there has been a judgment in favor of the defendant in an earlier action based on an entirely different and distinct claim. Indeed, there was in Watkins no judgment in favor of the defendant as there was in Priester, Gillespie, and Hiott. See also Peeples v. Seaboard Air Line Ry., 115 S.C. 115, 104 S.E. 541 (1920). The question which the court should have addressed, particularly in view of Graham, was whether or not the party adversely affected, M. & M. Tank Lines, Inc., "had a full and fair opportunity to litigate the issue in...