Capps v. Whitson
| Citation | 160 S.E. 71 |
| Court | Supreme Court of Virginia |
| Decision Date | 17 September 1931 |
| Parties | CAPPS v. WHITSON. |
Error to Circuit Court of City of Norfolk.
Action by F. E. Whitson against Z. B. Capps. Judgment for plaintiff, and defendant brings error.
Reversed.
Argued before CAMPBELL, HOLT, EPES, HUDGINS, and BROWNING, JJ.
Page, Page & Page, of Norfolk, for plaintiff in error.
John M. Arnold, of Norfolk, for defendant in error.
The parties will be referred to as they were related in the trial court; F. E. Whitson was plaintiff, and Z. B. Capps was defendant.
The plaintiff sued the defendant, by notice of motion, for damages in the sum of $2,000, alleged to be due on account of the defendant's negligence in an automobile accident in the city of Norfolk on the 9th of January, 1925.
The automobile bus of the plaintiff was being driven by Claude Wilson, her employee, traveling west on Twenty-Eighth Street, and the automobile of the defendant, driven by himself, was proceeding south on Hampton boulevard. The two streets intersect at about right angles. Hampton boulevard is a street with a parkway in its center. The width of the entire street, parkway, and eastern and western driveways is about 60 feet. The traffic on the boulevard bound south uses its western driveway along which the defendant was going at the time of the accident, which was approximately 5 o'clock p. m. It was raining and snowing, and the streets were wet and slippery. The bus stopped near the eastern driveway of the boulevard for the purpose of discharging passengers, it then proceeded across the boulevard at a speed of about 10 miles an hour, and as it approached the western margin of the western driveway its rear was struck by the on-coming automobile of the defendant; the impact overturning thebus and materially damaging it. The defendant was driving from 30 to 35 miles an hour.
The case was tried in the circuit court of the city of Norfolk on the 31st day of May, 1927, but the jury failed to agree upon a verdict. On the 8th of July, 1929, it was again tried; the jury rendering a verdict for the plaintiff for $675. The court declined to set aside the verdict on the ground that it was contrary to the law and the evidence.
Four assignments of error are submitted, the first involves the above motion, the second and third have to do with the action of the court in rejecting the defendant's plea of res adjudicata or estoppel, and the fourth relates to the action of the court in granting certain instructions over the objection and exceptions of the defendant.
The plea of res adjudicata or estoppel grew out of the former case of Davidson v. Capps and Whitson, which was tried in the court of law and chancery of the city of Norfolk in June, 1925. The plaintiff in that suit, Lula O. Davidson, who was a passenger, at the time of the accident, in the Whitson bus, claimed damages for personal injury in the sum of $10,000, on account of the alleged negligence of both of the defendants, Capps and Whitson. The jury returned a verdict against both of the defendants for the sum of $2,500, which was paid by them ratably or jointly.
The contention of the defendant here is that the plaintiff, having been adjudged guilty of negligence in a former trial growing out of the same collision and based upon the same merits, is estopped from recovering against the defendant in the immediate case.
The record in the former case was offered as evidence with the plea, and both were rejected by the court. In our opinion the action of the trial court was plainly right. In the former case the defendants were charged with negligence against the plaintiff, as joint tortfeasors. It is perfectly patent that, while they were sued jointly, they owed the plaintiff different degrees of care. The bus owner owed her the high degree of care due by a carrier to its passenger arising from the contractual relation. The duty of the automobile owner, Capps, with respect to speed, warnings of approach, and its management, was to operate his car, along the streets and crossings, which he has an equal right with the other members of the public to use, as to anticipate and avoid collisions with other cars whereby persons and property might be injured.
The issues of negligence in the case in judgment as between the bus and automobile owner might be entirely different from those in the former case where the plaintiff was alleging negligence against them both as to herself. For instance, the question of the last clear chance might be a very pertinent issue in the case between the two joint tort-feasors whereas it might be of no concern to the plaintiff in the former case. So with the issue of contributory and concurring negligence. There both parties are negligent. Both might properly have to respond jointly in damages for injuries inflicted upon a third person, but neither could recover from the other.
The point is that the issues in both suits must have been identical. In the case of Ches. & Ohio R. Co. v. Rison, 99 Va. 18, 37 S. E. 320, the distinction is made between the plea of estoppel and that of res adjudicata. It is said in the syllabus: On page 34 of 99 Va., 37 S. E. 320, 325, it is further said:
"Matter in Second Suit in Issue in First.— To render a former judgment or decree a bar as res judicata, or estoppel, in the second suit, about the same matter, not mere matter of defense, the matter of the second suit must have been actually in issue in the first." Tayloe v. Rose, 10 Va. Law Reg. 1002; Digest of Va. and W. Va. Reports, Michie, vol. 4, § 58, p. 942.
The causes of action in the two suits are not the same, and the issues are not identical.
The defendant cited the case of Virginia Ry. & Power Co. v. Leland, 143 Va. 920, 129 S. E. 700, to sustain his contention as to the applicability of his pleas.
That case is not the case in judgment at all. In the two cases there the plaintiff in the one was also one of the plaintiffs in the other; the defendant in both cases being the same. In the first case a partnership, of which one Leland was a member, sued the defendant company for injuries to their truck; in the second case Leland, personally, sued the defendant company for injuries to himself. It was properly held by this court that the question of negligence of the defendant company was the same in both cases. In the case in judgment the plaintiff in the first suit was a stranger to the second suit.
We think there was no error in the action of the trial court in rejecting the said plea or blended pleas.
We come now to a discussion of the...
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Overseas Motors, Inc. v. Import Motors Limited, Inc.
...to the same set of facts create different issues. Security Ins. Co. v. Johnson, 276 F.2d 182, 187-88 (10th Cir. 1960); Capps v. Whitson, 157 Va. 46, 160 S.E. 71 (1931). 67 See generally 1B Moore, supra note 2, ¶ 68 141 F.2d 927 (2d Cir. 1944), cert. denied, 323 U.S. 720, 65 S.Ct. 49, 89 L.E......
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Creighton v. Ruark, 83
...... The cases uphold the text. Capps v. Whitson, 157 Va. 46, 160 S.E. 71; Byrum v. Ames & Webb, Inc., 196 Va. 597, 85 S.E.2d 364; Jackson v. Blue, 152 F.2d 67 (C.A. 4th), (applying ......
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...the fact differs in the two actions because different legal standards are simultaneously applicable to it. See, e. g., Capps v. Whitson, 157 Va. 46, 160 S.E. 71 (1931). This is a very narrow exception to the rule with respect to identity of issues, however, and is applicable only when there......
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Jackson v. Blue
...be shown that the issues in the case at bar are identical with those in the case already decided. That rule was applied in Capps v. Whitson, 157 Va. 46, 160 S.E. 71, in which it was held that a judgment in favor of the passenger of a bus against the owner of the bus and the driver of an aut......