Evans v. Davidson

• Decision Date: 02 April 1937
• Docket Number: 6331
• Citation: 57 Idaho 548,67 P.2d 83
• Parties: PHEBY EVANS, Appellant, v. FRANK G. DAVIDSON and THE BOISE GROCERY COMPANY, INC., a Corporation, Respondents
• Court: Idaho Supreme Court

67 P.2d 83

57 Idaho 548

PHEBY EVANS, Appellant, v. FRANK G. DAVIDSON and THE BOISE GROCERY COMPANY, INC., a Corporation, Respondents

No. 6331

Supreme Court of Idaho

April 2, 1937

JUDGMENT-RES JUDICATA-IDENTITY OF CAUSES OF ACTION-APPEAL-TRIAL-VERDICT-VERDICT, IMPEACHMENT OF-AFFIDAVIT OF JUROR.

1. Jurors' affidavits, filed long after rendition of verdict against plaintiff in her action as administratrix of her husband's estate for his death, held inadmissible on hearing of defendants' motion for judgment after granting of their motion for new trial in her personal action for injuries sustained in same accident to show that jury did not find deceased guilty of contributory negligence by verdict in administratrix' suit.

2. Former judgment is not res judicata in later suit wherein issues are not identical with those in previous suit.

3. To establish former judgment as res judicata in subsequent suit it must appear on face of record or from extrinsic evidence that precise question involved in such suit was raised in previous suit.

4. New trial having been granted defendants after verdict for plaintiff in personal injury suit, wherein contributory negligence of plaintiff's husband, for whose death as result of same accident she brought suit as administratrix was not pleaded as defense, judgment of dismissal on ground that verdict against plaintiff in latter suit, tried with former action, was res judicata as to such issue must be reversed and cause remanded for new trial, even if such negligence was treated as issue by parties and court in plaintiff's personal action; former trial not being properly before Supreme Court for consideration.

5. Decedent's contributory negligence, not pleaded as defense in his widow's personal action, tried with her action as administratrix for his death, to recover for injuries sustained in same accident, held not so necessarily and exclusively found by jury in verdict against administratrix as to justify judgment dismissing personal action.

6. Question of error in instructions, referred to by way of recital in judgment, dismissing action for personal injuries on ground that jury's verdict against plaintiff in her action, tried with former action, as administratrix for death of her husband because of same accident, was res judicata as to decedent's con- tributory negligence after granting defendants new trial of personal action wherein jury found for plaintiff, held not properly before Supreme Court on appeal from such judgment, in absence of appeal from order granting new trial.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Chas. F. Koelsch, Judge.

Appeal from judgment of dismissal. Reversed and remanded.

Reversed and remanded with instructions. Costs to appellant. Petition for rehearing denied.

James W. Galloway, Maurice H. Greene and George Donart for Appellant.

A general order granting a new trial vacates all proceedings had on the former trial and reopens the case in its entirety. (Whitney v. Northwestern P. Co., 39 Cal.App. 139, 178 P. 326; Weisser v. Southern P. Ry. Co., 148 Cal. 426, 83 P. 439, 7 Ann. Cas. 636; Bishop v. Superior Court, 59 Cal.App. 46, 209 P. 1012; Drinkhouse v. Van Ness, 202 Cal. 359, 260 P. 869; Brode v. Clark, 31 Cal.App. 182, 159 P. 1048; 46 C. J. 437.)

An order granting a new trial will not be reversed if it can be justified upon any of the grounds upon which the motion was made. (Tidd v. Northern P. Ry. Co., 46 Idaho 652, 270 P. 138.)

To constitute a cause of action res judicata there must be identity (1) of the thing sued for; (2) of the cause of action; (3) of the parties, and (4) of the quality of the persons for or against whom the claims were made. ( Marshall v. Underwood, 38 Idaho 464, 221 P. 1105; Neil v. Hyde, 32 Idaho 576, 186 P. 710; Mayerhoff v. Wortman, 92 Okla. 66, 218 P. 842; State v. Kaemmerling, 83 Kan. 383, 111 P. 443; Alfrey v. Colbert, 44 Okla. 246, 144 P. 179.)

In order to constitute an estoppel by judgment it is necessary that the precise question in issue was involved and adjudicated in a previous action between the same parties or their privies. (Marshall v. Underwood, supra; Mason v. Ruby, 35 Idaho 157, 204 P. 1071; People v. Wyanet Elec. Light Co., 306 Ill. 377, 137 N.E. 834; Board of Directors v. People, 189 Ill. 439, 59 N.E. 977.)

An affidavit of jurors is admissible to explain a verdict even after discharge of the jury. (Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847; Murphree v. Anderson, 92 Kan. 370, 140 P. 880; Follansbee v. Walker, 74 Pa. 306; Susquehanna Mut. Fire Ins. Co. v. Mardorf, 152 Pa. 22, 25 A. 234.)

Richards & Haga for Respondents.

"The general principle announced in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the same suit remains unmodified." (United States v. Moser, 266 U.S. 236, 45 S.Ct. 66, 69 L.Ed. 262; 2 Freeman on Judgments, 5th ed., sec. 670, p. 1412; sec. 688, p. 1450; sec. 693, p. 1465; Marshall v. Underwood, 38 Idaho 464, 221 P. 1105, 15 R. C. L. 974; Bijou Irr. Dist. v. Weldon Valley Ditch Co., 67 Colo. 336, 184 P. 382.)

The issue as to respondents' liability was the same in both cases, and it does not matter that the relief demanded in the Pheby Evans action was for injuries to herself instead of the death of her husband or the destruction of the family automobile. In such cases, when the fact as to negligence has been adjudicated and determined in the administratrix' case, it cannot again be put in issue in the Pheby Evans' case. The determination in the former will be held conclusive upon the parties in the latter suit, whether the cause of action be the same in both suits or not. (McKee v. Producers & Refiners Corp., 170 Okla. 559, 41 P.2d 466, 469; 34 C. J., p. 743; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195, 197; Southern Ry. Co. v. Postal Telegraph-Cable Co., 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355.)

Jurors will not be permitted to support or explain their verdict in the Pheby Evans case by affidavits which impeach their verdict in the administratrix' case submitted at the same time and upon the same evidence. (4 Wigmore on Evidence, secs. 2348, 2349; 27 R. C. L., p. 896; Washington A. & G. Steam P. Co. v. Sickles, 72 U.S. (5 Wall.) 580, 18 L.Ed. 550, 551, 554; Fayerweather v. Ritch, 195 U.S. 276, 25 S.Ct. 58, 49 L.Ed. 193, 213; Trimble v. State, 118 Neb. 267, 224 N.W. 274, 277.)

GIVENS, J. Morgan, C. J., and Holden, J., concur.

OPINION

GIVENS, J.

--October 24, 1934, between 3 and 5 o'clock P. M., an automobile being driven south on the main state highway about five miles north of Cascade, by Ezra Evans, with whom was riding his wife, Pheby Evans, collided with an automobile driven north by respondent Frank G. Davidson, concededly on business for the other respondent, his employer, severely injuring all three; Mr. Evans later dying therefrom. Mrs. Evans individually brought suit for her own personal injuries, and a separate suit as administratrix of her husband's estate on behalf of herself and their grown children, his heirs, against both respondents for the death of Ezra Evans.

Both complaints charged respondent Davidson with negligence by reason of terrific speed and swerving to his left, or wrong side of the highway. In Mrs. Evans' separate action her injuries were detailed and $ 20,000 damages asked therefor and $ 700 for medical treatment, etc.

In the administratrix' action the grounds of negligence were the same but instead of her injuries, Ezra Evans' death was alleged, the names and residences of their six grown children, that the suit was with their consent and acquiescence, and that by reason of the death of Ezra Evans, Mrs. Evans was deprived of his support, maintenance, and financial benefits, and that she and the children were deprived of his society, companionship, aid, advice, and counsel, and that in his lifetime he was in good health, of industrious habits, and capable of earning goods wages for his and Mrs. Evans' support; and a second cause of action for damages to the Evans' car.

The answers admitted the employment of Davidson by respondent company, but denied all the other material allegations and in the Pheby Evans' case affirmatively charged her with contributory negligence, but did not set up any contributory negligence on the part of Ezra Evans. In the administratrix' action, contributory negligence of Ezra Evans was affirmatively alleged, and by counterclaim and cross-complaint, respondent company sought damages for the automobile Davidson was driving and he sought damages for his injuries in the sum of $ 6,000 and medical and hospital expenses.

At the trial it was stipulated that the damage to the Evans' car was $ 175, and the amount of her expenses for medical treatment, etc., were admitted without objection, also the damage to respondent's automobile and the hospital and medical expenses incurred by Davidson were stipulated, and that Ezra Evans died by reason of the accident.

The cases were consolidated for trial and the jury returned a verdict in the Pheby Evans case in her favor for $ 14,000. In the other case the jury returned this verdict:

"We, the jury in the above entitled action, find against the plaintiff on both of her causes of action, and against both defendants upon their cross-complaints.

"HOWARD E. CAMPBELL

"Foreman."

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