Bentson v. Brown

• Decision Date: 07 December 1926
• Citation: 211 N.W. 132,191 Wis. 460
• Parties: BENTSON v. BROWN.
• Court: Wisconsin Supreme Court

191 Wis. 460

211 N.W. 132

BENTSON

v.BROWN.

Supreme Court of Wisconsin.

Dec. 7, 1926.

Appeal from Circuit Court, Vernon County; R. S. Cowie, Judge.

Action by R. T. Bentson, administrator of the estate of Victor Bentson, deceased, for wrongful death of his son, against Ben C. Brown. Plaintiff's demurrer to defense of former adjudication having been sustained, defendant appeals. Reversed and remanded, with directions.--[By Editorial Staff.]

Action by plaintiff as administrator of the estate of his deceased son to recover damages for the death of the son, alleged to have been caused by the gross negligence of the defendant. A former action between the same parties for the same damage, based upon ordinary negligence on the part of the defendant, was tried and resulted in a judgment for the defendant. See 186 Wis. 629, 203 N. W. 380, 38 A. L. R. 1417. In that action it was determined by the verdict and judgment that the defendant was guilty of ordinary negligence and that the deceased was guilty of contributory negligence--hence the judgment for defendant. The defendant pleaded the former adjudication as a defense in this action. The plaintiff's demurrer to the defense was sustained, and the defendant appealed.C. J. Smith, of Viroqua, and Lines, Spooner & Quarles, of Milwaukee, for appellant.

Higbee & Higbee, of La Crosse, for respondent.

VINJE, C. J.

[1] Was the defense pleaded a good defense? The solution of the question depends upon a few well-established principles of law. These are: The doctrine of res judicata is firmly established in this state. Boring v. Ott, 138 Wis. 260, 119 N. W. 865, 19 L. R. A. (N. S.) 1080;Patrick v. Patrick, 139 Wis. 463, 121 N. W. 130, 131 Am. St. Rep. 1067;Rahr v. Wittmann, 147 Wis. 195, 132 N. W. 1107, 36 L. R. A. (N. S.) 392;Zohrlaut v. Mengelberg, 158 Wis. 392, 148 N. W. 314, 149 N. W. 280. An issue once litigated in one cause of action is res judicata in a different cause of action between the same parties. Grunert v. Spalding, 104 Wis. 193, 80 N. W. 589;Cromwell v. County of Sac, 94 U. S. 352, 24 L. Ed. 195. In Grunert v. Spalding the rule is thus stated:

“The rules governing the efficacy of judgments in subsequent litigation between parties and privies are well established, and may be formulated thus: In a second litigation between the same parties or privies upon the same cause of action, the judgment is absolutely final as to their rights in that cause of action as to all things, not only those which were in fact litigated and decided by the court, but also those which might have been so litigated and decided. On the other hand, in a subsequent litigation between the same parties or their privies upon a different cause of action, the judgment is only conclusive as to those issues which were in fact adjudicated. Van Valkenburgh v. Milwaukee, 43 Wis. 580;Wentworth v. Racine County, 99 Wis. 26 ;Cromwell v. Sac. Co., 94 U. S. 356 [352, 24 L. Ed. 195];Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683 [15 S. Ct. 733, 39 L. Ed. 859];Southern P. R. Co. v. U. S., 168 U. S. 1 [18 S. Ct. 18, 42 L. Ed. 355].”

In Cromwell v. County of Sac, 94 U. S. 352, 24 L. Ed. 195, as to an issue in a different cause of action between the same parties, the rule is stated as follows:

“But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”

[2][3] In the present case we have the same parties in their same qualities, but we have a different cause of action. The first action was upon ordinary negligence. See 186 Wis. 629, 203 N. W. 380, 38 A. L. R. 1417. This cause of action is upon gross negligence. Ordinary negligence and gross negligence are not the same, and in our state do not grade into each other. The former lies in the field of inadvertence; the latter in the field of an actual or constructive intent to injure. Astin v. C., M. & St. P. R. Co., 143 Wis. 477, 128 N. W. 265, 31 L. R. A. (N. S.) 158;Willard v. C. & N. W. Ry. Co., 150 Wis. 234, 136 N. W. 646;Jorgenson v. C. & N. W. Ry. Co., 153...