Cummings v. Dresher

• Decision Date: 07 July 1966
• Citation: 271 N.Y.S.2d 976,218 N.E.2d 688,18 N.Y.2d 105
• Parties: , 218 N.E.2d 688 Mary CUMMINGS et al., Respondents, v. Bernard DRESHER et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 976

271 N.Y.S.2d 976

18 N.Y.2d 105, 218 N.E.2d 688

Mary CUMMINGS et al., Respondents, v. Bernard DRESHER et al., Appellants.

Court of Appeals of New York.

July 7, 1966.

Norman L. Harvey and John L. Bell, Plattsburgh, for appellants.

Loren W. Lillis, Schenectady, and Samuel M. Hesson, Albany, for respondents.

DESMOND, Chief Judge.

There was a collision between an automobile owned by Martin Cummings and driven by Mary Cummings and an automobile driven by Bernard Dresher. The car driven by Bernard Dresher was owned by Standard Electric Co., Inc., and in it Henry Dresher was a passenger. Driver Bernard Dresher and passenger Henry Dresher as coplaintiffs sued driver Mary Cummings and owner Martin Cummings in the Federal District Court for damages for personal injuries sustained by the two Dresher brothers. The issues up for determination in that Dresher v. Cummings suit included, therefore, questions as to the negligence of either or both the Dreshers and either or both of the defendants Cummings. Returning their verdict, the jury told the Federal Judge that it found in favor of the passenger Henry Dresher against defendants Cummings and found also that Mrs. Cummings was 'guilty of negligence' and that 'plaintiff' (apparently meaning driver Bernard Dresher) 'was guilty' of contributory negligence to a very minor degree. The Judge, to 'complete' the verdict, instructed the Clerk to ask the jury whether it intended a verdict of no cause of action in Bernard Dresher's suit. The jurors replied that such was their intention. Judgment was thereupon entered in favor of Mr. and Mrs. Cummings dismissing the complaint of Bernard Dresher and the judgment was affirmed by the Federal Court of Appeals (2 Cir., 325 F.2d 156). At the close of these Federal court proceedings it was completely clear that the jury had found that driver Mary Cummings had been found guilty of negligence and that, therefore, she as driver and her husband as owner had to pay damages to passenger Henry Dresher. Equally clear was the Federal court jury's finding that driver Bernard Dresher had been guilty of contributory negligence and so, notwithstanding the found negligence of driver Mary Cummings, Bernard Dresher could not recover against the defendants Cummings.

Despite this definite and unmistakable Federal court jury finding as to both drivers being at fault, driver Mary Cummings and her husband brought the present suit against driver Dresher and the corporate owner of the Dresher car. The courts below, for inscrutable reasons, held that the Federal court judgment was not determinative here. We do not understand why in a reasonable, prompt and nonrepetitious judicial system, the negligence or no of these two drivers must be decided all over again, after having once been settled after a jury trial in which all these same people were parties and all the same issues tried and decided. "One who has had his day in court should not be permitted to litigate the question anew. * * * Under such circumstances the judgment is held to be conclusive upon those who were parties to the action in which the judgment was rendered. Where a full opportunity has been afforded to a party to the prior action and he has failed to prove his freedom from liability or to establish liability or culpability on the part of another, there is no reason for permitting him to retry these issues" (Israel v. Wood Dolson Co., 1 N.Y.2d 116, 119, 151 N.Y.S.2d 1, 4, 134 N.E.2d 97, 99; see, also, Commissioners of State Ins. Fund v. Low, 3 N.Y.2d 590, 595, 170 N.Y.S.2d 795, 798, 148 N.E.2d 136, 138).

It is unnecessary to deal with Federal Rule 13 (subd. (a)) which was not briefed by the parties or considered by either court below.

The order appealed from should be reversed, with costs in all courts, and the matter remitted to the Appellate Division for furhter proceedings in accordance with the opinion herein. The certified question should be answered in the negative.

FULD, Judge (concurring).

I reach the same decision the majority does but by a different route. Although I agree with Judge BERGAN that there was no prior adjudication of the plaintiffs' claims in the Federal court, I, nevertheless, believe that the defense of Res judicata is available to the defendants because of the compulsory counterclaim rule prescribed by the Federal Rules of Civil Procedure. The cases are clear that, if a defendant in a Federal suit is required to file a counterclaim but does not, the resulting judgment of the District Court will be Res judicata as to the merits of the counterclaim which should have been pleaded. Rule 13 (subd. (a)) of the Federal Rules, insofar as relevant, provides:

'A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if * * * at the time the action was commenced the claim was the subject of another pending action'.

There can, of course, be no doubt that the claims which the plaintiffs now assert arose, to cull from the rule, out of the same 'occurrence (as was) the subject matter of the opposing party's claim'. (See, e.g., Sinkbeil v. Handler, 7 F.R.D. 92, 97; Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001.) And, since--to quote again from Rule 13 (subd. (a))--'the presence of third parties' was not required for the adjudication of the Cummings' claims, nor were those claims 'the subject of another pending action' when the Federal suit was commenced, it is indisputably clear that the plaintiffs now before us should have interposed as counterclaims in the earlier litigation the very causes of action now sued upon. Having failed to do so, it necessarily follows that the judgment entered (by the District Court is Res judicata as to the merits of the counterclaims which should have been pleaded. (See United States v. Eastport S.S. Corp., 2 Cir., 255 F.2d 795, 805; Pesce v. Linaido, 123 So.2d 747 (Fla.Dist.Ct.App.); Mensing v. Sturgeon, 250 iowa 918, 925, 97 N.W.2d 145, 148; Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, supra; Horne v. Woolever, 170 Ohio St. 178, 163 N.E.2d 378; Beach v. Runnels, 379 S.W.2d 684 (Tex.Civ.App.).) ¹ As the Federal Court of Appeals for this circuit said in the Eastport S.S. Corp. case (255 F.2d., at p. 805), 'whenever a compulsory counterclaim is not pleaded in an action where it should have been pleaded the judgment entered in that action is clearly Res judicata as to the merits of the unpleaded counterclaim.' This sound result has also obtained, as indicated, in every State court which has had occasion to pass on the matter. In Horne v. Woolever, 170 Ohio St. 178, 163 N.E.2d 378, supra, a case virtually identical with the one before us, the high court of Ohio, expressly holding that the second suit, instituted in the State court, was barred by operation of the Federal Rule, declared: 'it is apparent * * * that the cause of action set forth in plaintiff's petition is one that Rule 13 would have required plaintiff to assert as a counterclaim in defendant's federal court action * * *. To the extent to which a judgment of a federal court operates as Res adjudicata in that court, it operates as Res adjudicata in the courts of this state' (p. 183, 163 N.E.2d p. 382). And, in my view, it likewise operates as Res judicata in New York.

BERGAN, Judge (dissenting).

While plaintiff Mary Cummings was driving a car southerly in Route 9 near Schroon Lake, a front tire blew out and the car went across the highway to the left side where, as it was coming to a stop, it collided on the shoulder with a car driven in a northerly direction by defendant Bernard Dresher and owned by defendant Standard Electric Co., Inc. Plaintiff Martin Cummings owned the southbound car.

Defendant Bernard Dresher and his brother Henry Dresher, who was a passenger in the northbound car, sued the present plaintiffs, Mary and Martin Cummings, in the United States District Court for personal injuries. After a trial, and based on verdicts of the jury, a judgment was entered in the District Court in favor of the passenger Henry Dresher against Mr. and Mrs. Cummings; and in the cause of action by Bernard Dresher against Mr. and Mrs. Cummings, judgment was entered for defendants.

In returning the verdict for the defendants Martin T. and Mary E. Cummings, the jury said 'we find the defendant (sic) guilty of negligence and the plaintiff guilty of contributory negligence to a very minor degree'. In response to this the court directed the Clerk to receive the verdict in proper form by saying 'You have to now complete that. You should ask whether the verdict is no cause of action'. Juror No. 12 interposed: 'Yes, Your Honor.'

The court continued, addressing the Clerk: 'You should ask the jurors.' Whereupon the Clerk said: 'Ladies and gentlemen, your verdict in the case of Bernard Dresher against Cummings is one of no cause of action in favor of the defendant (sic) and so say you all?' The jurors said 'Yes. Yes.' Upon this, the judgment for the defendants, the present plaintiffs, was entered in the action of Bernard Dresher.

The main problem is whether there has resulted from that former action a binding adjudication in favor of defendant Dresher against plaintiffs Cummings which would preclude a recovery in this present action, based on negligence, between the same parties for damages arising from the same accident. The court at Special Term denied defendants' motion for summary judgment and the Appellate Division affirmed but granted permission to appeal here.

The question has two separable aspects: (a) the effect of the judgment for the passenger Henry Dresher against the present plaintiffs Cummings; (b) the effect of...