Davis v. Perryman

• Decision Date: 13 February 1956
• Docket Number: No. 5-840,5-840
• Citation: 286 S.W.2d 844,225 Ark. 963
• Parties: Rea Howell DAVIS, Adm'x, Appellant, v. Jerry T. PERRYMAN, Appellee.
• Court: Arkansas Supreme Court

Page 844

286 S.W.2d 844

225 Ark. 963

Rea Howell DAVIS, Adm'x, Appellant, v. Jerry T. PERRYMAN, Appellee.

No. 5-840.

Supreme Court of Arkansas.

Feb. 13, 1956.

Gerland P. Patten, Little Rock, for appellant.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellee.

McFADDIN, Justice.

The question posed is whether the appellant is barred from maintaining the present action because of previous litigation. The Trial Court answered the question in the affirmative and dismissed the complaint. This appeal ensued.

On November 3, 1954, Mrs. Rea Howell Davis, as administratrix of the estate of her husband, James Henry Davis, filed this present action in the Pulaski Circuit Court against Jerry T. Perryman, as sole defendant. The complaint alleged, inter alia, that on November 11, 1952, the said James Henry Davis was killed in a traffic collision between his car and a truck of the East Texas Motor Freight Lines, then driven by the defendant, Perryman, as servant of said East Texas Motor Freight Lines; that James Henry Davis was free of all negligence and that the collision occurred entirely because of the fault and negligence of the defendant, Perryman, against whom damages were prayed. In due time, the defendant filed his motion to dismiss, as follows:

'* * * on January 30, 1954, Rea Howell Davis, Administratrix of the Estate of James Henry Davis, Deceased, filed suit against East Texas Motor Freight Lines, a corporation, in the United States District Court for the Eastern District of Arkansas, Western Division, which said suit bore civil No. 2743 and involved the same traffic accident involved here. * * * In the said civil action No. 2743, the only grounds alleged for liability on the part of East Texas Motor Freight Lines, a corporation, were that Jerry T. Perryman was guilty of negligence which proximately caused the collision and that the said Jerry T. Perryman was an employee of East Texas Motor Freight Lines and acting within the scope of his employment at the time of the traffic accident. East Texas Motor Freight Lines, a corporation, in its answer in the District Court of the United States, Eastern District of Arkansas, Western Division, in Civil No. 2743, admitted that Jerry T. Perryman was an agent and employee of the East Texas Motor Freight Lines and acting within the scope of his employment at the time of the traffic accident. United States District Court Cause No. 2743 was tried before a jury on the issue of whether or not East Texas Motor Freight Lines, a corporation, was liable to Rea Howell Davis, Administratrix, because of negligence on the part of Jerry T. Perryman; and resulted in a verdict in favor of East Texas Motor Freight Lines on April 20, 1954. Judgment on the verdict in United States District Court was entered on April 20, 1954; Rea Howell Davis has never appealed from the said judgment in favor of East Texas Motor Freight Lines; and the said judgment has now become final. Defendant pleads the foregoing proceedings, orders and judgments. * * * United States District Court No. 2743 as a bar to this cause of action.'

At a hearing on said motion it was stipulated in open court by the respective parties, through their attorneys, that all of the allegations, contained in said motion to dismiss, were true. Thereupon, the Trial Court sustained the motion and dismissed the complaint; and appellant, claiming error, argues the two assignments now to be discussed.

Assignment No. 1. The appellant says: 'Res judicata does not apply, because in this case the East Texas Motor Freight Lines is not privy to Perryman, nor Perryman to the East Texas Motor Freight Lines. ' Among other authorities, appellant cites Eldred v. Johnson, 75 Ark. 1, 86 S.W. 670, to the effect that a judgment binds only parties to the action and those in privity with parties; and then appellant says that in the scope of such rule of res judicata a servant is not in privity with a master and an agent is not in privity with a principal; and to sustain such statement, appellant cites these Arkansas cases: Missouri Pac. R. Co. v. McGuire, 20 Ark. 658, 169 S.W.2d 872; Meyer v. Eichenbaum, 202 Ark. 438, 150 S.W.2d 958; Gates v. Mortgage Loan, etc., 200 Ark. 276, 139 S.W.2d 19; Berryman v. Cudahy Packing Co., 191 Ark. 533, 87 S.W.2d 21, and in the oral argument before the Court, appellant added the cases of Missouri Pac. R. Co. v. Nelson, 195 Ark. 883, 115 S.W.2d 872, Arkansas Power & Light Co. v. Marsh, 195 Ark. 1135, 115 S.W.2d 825, and Corder v. Norsworthy, 194 Ark. 564, 109 S.W.2d 136.

We respect the cases cited by the appellant and nothing herein in any way overrules the real holding in any of the cited cases; but we have here a factual situation materially different from that in any of the cited cases. Focused down to the distinct issue, the question here is whether the plaintiff, after an unsuccessful damage action against the master for the alleged negligent act of the servant, is barred from maintaining a subsequent action against the servant involving the same mishap, when it was and is conceded in both actions that the servant was all the time acting within the scope of his employment and the only questions in the two actions are negligence and contributory negligence.

Learned counsel for appellant has not cited us to any Arkansas case with facts like the one here, and our search has failed to disclose any such case; but the cases from other jurisdictions are overwhelming in holding that an action like the present one cannot be maintained when a previous action by the same plaintiff against either the master or the servant for the same alleged act of negligence has been finally decided against the plaintiff in the Courts--State or Federal ¹--of the same jurisdiction and in which the scope of employment of the servant has been conceded at all times by the master and the only questions have been those of negligence and contributory negligence. The reason for the rule seems to be that the plaintiff has had a complete opportunity to have a court of competent jurisdiction in the forum pass on the questions of negligence and contributory negligence, and that the plaintiff is not entitled to have the same issue relitigated. ²

A leading case is that of Giedrewicz v. Donovan, 277 Mass. 563, 179 N.E. 246, 247, decided by the Supreme Court of Massachusetts in 1932. There the facts disclose that the plaintiff brought an action against the master for injuries recieved because of the alleged negligence of the servant; that case was tried in the United States Court in Massachusetts and the master conceded that the servant was acting in the scope of employment, and the only issues were negligence and contributory negligence. That case was finally decided against the plaintiff; and then the plaintiff brought suit in the State Court of Massachusetts against the servant based on the same traffic mishap. The Supreme Judicial Court of Massachusetts, in the reported decision, held that the second action was barred because of the stated outcome of the first action. After recognizing the general rule, that a judgment is a bar to a subsequent action only when the parties or their privies are the same in both actions, the Court nevertheless held that the result of the first action prohibits the maintaining of the second action.

The Massachusetts Court quoted from the case of Jenkins v. Atlantic Coast Line R. Co., 89 S.C. 408, 71 S.E. 1010, as follows:

"* * * the true ground upon which a former judgment, in a case like this, should be allowed to operate as a bar to a second action is not res judicata, or technical estoppel, because the parties are not the same, and there is no such privity between them as is necessary for the application of that doctrine; but that in such cases, on grounds of public policy, the principle of estoppel should be expanded, so as to embrace within the estoppel of a judgment persons who are not, strictly speaking, either parties or privies. It is rested upon the wholesome principle which allows every litigant one opportunity to try his case on the merits, but limits him, in the interest of the public, to one such opportunity."

Another case with facts like the one at bar is Myhra v. Park, 193 Minn. 290, 258 N.W. 515, 518, decided by the Supreme Court of Minnesota in 1935. In that case, Myhra and his wife received injuries in a traffic mishap involving a car and a truck driven by Johnson, who was the servant and employee of Park. In the first action, Myhra filed against Park as the sole defendant, and sought damages for his car and his personal injuries, but did not mention any injuries sustained by his wife. It was conceded that Johnson was all the time acting in the scope of his employment, and the sole questions in the case were negligence and contributory negligence. The first action resulted in a decision in favor of Park. Thereafter, Myhra brought action against both Johnson and Park for amounts that he expended for medicine and hospital treatment of his wife and the loss of her services. The question was whether the first action against Park was a bar to the second action against Johnson, the servant. The Supreme Court of Minnesota stated the question:

'In view of the facts appearing in the instant case, is estoppel by verdict or bar by judgment available to the defendant Tim Johnson? Plaintiff asserts that, because Johnson was not a party to the former action, there can be no estoppel as to him. The liability of defendant Park necessarily depended upon whether there was negligence on the part of his servant at the time and place of the accident. There is no question but that Park assumed responsibility for his servant's acts and conduct, even were that open to dispute. So the question presented is really this: Plaintiff having fully litigated the question of the servant's negligence in his action against the master and, after an adverse determination of such issue upon the merits, having based...