Deaton v. GAY TRUCKING COMPANY, Civ. A. No. 67-395

• Decision Date: 20 November 1967
• Docket Number: 67-396 and 67-452.,Civ. A. No. 67-395
• Citation: 275 F. Supp. 750
• Parties: May Belle Bellamy DEATON and Lorena Dees Anderson, as Administratrices of the Estate of Sandra Lynn Kelly, deceased, Plaintiff, v. GAY TRUCKING COMPANY, Defendant. May Belle Bellamy DEATON, as Administratrix d.b.n. c.t.a. of the Estate of Shelby Martin Kelly, deceased, Plaintiff, v. GAY TRUCKING COMPANY, Defendant. May Belle Bellamy DEATON and Lorena Dees Anderson, as Administratrices of the Estate of Pamela Jean Kelly, deceased, Plaintiffs, v. GAY TRUCKING COMPANY, Defendant.
• Court: U.S. District Court — District of South Carolina

275 F. Supp. 750

May Belle Bellamy DEATON and Lorena Dees Anderson, as Administratrices of the Estate of Sandra Lynn Kelly, deceased, Plaintiff, v. GAY TRUCKING COMPANY, Defendant.

May Belle Bellamy DEATON, as Administratrix d.b.n. c.t.a. of the Estate of Shelby Martin Kelly, deceased, Plaintiff, v. GAY TRUCKING COMPANY, Defendant.

May Belle Bellamy DEATON and Lorena Dees Anderson, as Administratrices of the Estate of Pamela Jean Kelly, deceased, Plaintiffs, v. GAY TRUCKING COMPANY, Defendant.

Civ. A. Nos. 67-395, 67-396 and 67-452.

United States District Court D. South Carolina, Charleston Division.

November 20, 1967.

Robert B. Wallace, Arthur G. Howe, Brockinton & Brockinton, Charleston, S. C., for plaintiffs.

Robert A. Patterson, of Barnwell, Whaley, Stevenson & Patterson, Charleston, S. C., for defendant.

ORDER

SIMONS, District Judge.

This matter is before the court on defendant's motions for summary judgment and plaintiffs' oral motions for a voluntary non-suit in each of the within captioned tort actions.

These cases arise out of an accident which occurred at the intersection of U. S. Highway 21 and S. C. Highway 61 on the 3rd day of February 1964. Each complaint alleges that the deceased persons, to wit: Sandra Lynn Kelly, Shelby Martin Kelly, and Pamela Jean Kelly died as a result of injuries received by them when a 1963 Brockway truck-trailer unit, owned and operated by the defendant Gay Trucking Company, its agents and servants, collided with a 1957 Ford automobile in which the above named deceased persons were riding.

Plaintiffs further allege that the collision and resultant injuries and death occurred by reason of the negligence, recklessness and wilfulness of the defendant Gay Trucking Company, its agents and servants.

Two of the cases, Civil Action Nos. 67-395 and 67-396, involve actions for wrongful death¹ and Civil Action No. 67-452, is brought under the South Carolina Survival Statute.²

The defendant in each case has moved for a summary judgment on the grounds that the issues involved have been heretofore tried before this court and a jury in May Belle Bellamy Deaton and Lorena Dees Anderson, as Administratrices of the Estate of Pamela Jean Kelly, deceased v. Gay Trucking Company and Belva C. Munn as Administratrix of the Estate of Mary Frances Martin, Civil Action No. 66-447, wherein a jury verdict was rendered for and on behalf of the defendant, Gay Trucking Company, and that the issues thus having been adjudicated, the matter has become res judicata or alternatively, estopped by judgment since by reason of the above there is no genuine issue as to any material fact and the cases should be dismissed as a matter of law.

No issue of fact exists in that it is agreed that the prior case, Civil Action No. 66-447 was tried and resulted in a verdict for the defendant, thereby leaving only a question of law to be decided by this court which makes a decision by this court appropriate under Rule 56(c) of the Federal Rules of Civil Procedure.

On first impression the defendant's brief in support of his motion is quite persuasive, but on further study the authorities are found to be neither in point nor controlling.

In each of the cases, there is a separate and distinct cause of action and therefore the question of res judicata is completely without merit in that all authorities including the United States Supreme Court agree that res judicata is where "a judgment `on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action * * *" Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122. The defendant's brief, in fact, so states.

Apparently confusion as to the distinction between "res judicata" and "estoppel by judgment" has resulted from the use of these terms indiscriminately and interchangeably.

However, it seems clear that while a second and different civil action may be defeated by a former judgment, because it conclusively and negatively adjudicates some essential fact or issue involved in the latter, a judgment cannot operate as a bar to a different cause of action.³

As stated earlier, two of the cases involve actions for wrongful death and the third involves an action under the Survival Statute. Because of the distinction between these two the court will treat them separately. As to May Belle Bellamy Deaton and Lorena Dees Anderson, as Administratrices of the Estate of Pamela Jean Kelly, deceased, Civil Action No. 67-452, involving the action under the survival statute,⁴ the cases of Peeples v. Seaboard Air Line Ry., 115 S.C. 115, 104 S.E. 541, and Bennett v. Spartanburg Ry. Gas and Electric Co., 97 S.C. 27, 81 S.E. 189, are of significance. It does not appear who were the ultimate beneficiaries in either of those actions but the nominal plaintiff was the same in both, as is the case in the present action.

This court knows not whether the ultimate beneficiaries in a wrongful death action and a survival action would be the same, for any recovery under a survival action might be depleted by claims against the estates. Likewise, in these present actions this court cannot say with certainty that the ultimate beneficiaries will be the same.

Unquestionably all of these civil actions arose out of the same transaction. As stated in Bennett, supra:

"While the party plaintiff is nominally the same as to each civil action, in reality his relation to and interest in each is entirely separate and distinct. In the one, he is representative of the estate of the deceased, and the recovery, if any, is for damages resulting from the injury to the deceased, and the amount recovered will go into his hands as assets of the estate * * *

"In the other, he is the representative of the beneficiary named in the statute, and the recovery, if any, is for damages resulting to them, and the amount recovered will be distributed amongst them.

"Therefore as representative of the estate, the civil action in favor of the grandparents does not affect him; and as representative of the grandparents, the cause of action in favor of their estate does not affect him." Bennett v. Spartanburg Ry. Gas & Elec. Co., 97 S.C. 27, 30, 81 S.E. 189. (Brackets added).

For many years separate actions for wrongful death and under the survival statute have been brought, and certainly the factual issues were the same and yet the prior determination has not been held to be binding on the subsequent case. In Peeples, supra, although the ultimate beneficiaries were not shown, this issue was presented and the South Carolina Supreme Court allowed the survival action although an earlier wrongful death action had resulted in a verdict for the defendant. In fact, under the South Carolina law, the two civil actions cannot be joined in one cause of action, and may not be tried together⁵ except by consent of the parties, which necessarily invalidates defendant's argument.

Although the precise question involving the same ultimate beneficiaries, i. e. the grandparents, has not been presented, it appears from the South Carolina cases that the matter would not be res judicata or estopped by judgment. Accordingly, the defendant's motion in this regard is denied.

With reference to May Belle Bellamy Deaton and Lorena Dees Anderson, as Administratrices of the Estate of Sandra Lynn Kelly, deceased, Civil Action No. 67-395, and May Belle Bellamy Deaton as Administratrix of the Estate of Shelby Martin Kelly, deceased, Civil Action No. 67-396, both of which involve actions for wrongful death, the question is not as well settled.

Generally a distinct and independent civil action although growing out of the same state of facts may be sued on separately and the recovery of a judgment for one of such causes of action will not bar subsequent actions on the other. 50 C.J.S. Judgments § 674.

The right of every man to his day in court is one of the most precious individual rights inherent in our form of government and basic to American jurisprudence. Assuming the correctness of the theory that each man is entitled to his day in court, it is completely contrary to this principle to allow one jury to decide another man's case. This would be the result if summary judgment were here granted for the defendant since it would in fact be having the jury of the prior case deciding the present case without even hearing it.

Although the issue was different, the case of Complete Auto Transit, Inc. v. Bass, 229 S.C. 607, 611, 93 S.E.2d 912, 913, sheds some light on the feelings of the South Carolina Court on the matter. In discussing Bennett, supra, the court stated: "The administrator is, in reality, not the same party in respect of the two causes of action." Similarly, the administrator in each of these actions should be considered a totally different party.

In the Bass case, plaintiff sought to recover for damages to his truck arising from a collision between plaintiff's truck and decedent's automobile. The Executrix of the decedent pleaded that plaintiff's failure to counterclaim against her in her action for wrongful death barred the plaintiff's present suit.

The court stated that the distinction as Executrix in her representative capacity went deeper than just to whom the proceeds of any recovery ultimately went, and further stated: "In reality, she functions under two separate and distinct trusteeships having no relationship to each other beyond the fact that their origin is referable to the death of the same person." And the court further states:

"In the present case at least there is no res judicata because the parties in the Federal court were not the same as the parties in the present action. In the Federal court the administrator was necessarily sued in his capacity as the representative of the estate of the deceased for the benefit of creditors and distributees. But it is settled that in bringing an action * * based upon the death statute * * * for the

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