Firestone Tire & Rubber Co. v. Pinyan, 59916

• Citation: 155 Ga.App. 343,270 S.E.2d 883
• Decision Date: 15 July 1980
• Docket Number: No. 59916,59916
• Parties: FIRESTONE TIRE & RUBBER COMPANY v. PINYAN et al.
• Court: United States Court of Appeals (Georgia)

Page 883

270 S.E.2d 883

155 Ga.App. 343

FIRESTONE TIRE & RUBBER COMPANY v. PINYAN et al.

No. 59916.

Court of Appeals of Georgia.

Argued May 13, 1980.

Decided July 15, 1980.

Alfred B. Adams, III, Gregory J. Digel, Charles B. Tanksley, Atlanta, for appellant.

Lynn A. Downey, Donald M. Fain, Gene A. Major, Atlanta, for appellees.

CARLEY, Judge.

Appellee-Pinyan was employed as a truck driver. His employer leased trucks from Hertz Corporation which were equipped with tires manufactured by appellant-Firestone. In 1975 the truck he was driving left the road and crashed, resulting in the death of his passenger and in injuries to Pinyan. Pinyan instituted suit against Firestone and Hertz for personal injuries sustained by him, alleging that the crash was the result of the blowout of a defective tire manufactured by Firestone and placed on the truck by Hertz. The jury returned a verdict in his favor and against Firestone in the amount of $375,000 and a verdict in favor of Hertz. This is an appeal from the order denying Firestone's motion for new trial.

1. During the second day of the first of two trials, Pinyan's counsel elicited testimony concerning recall of Firestone's tires. However, the tires involved in the case on trial had never been the subject of any recall. A defense motion for mistrial was made and granted. The jury was discharged and instructed "not to discuss what has transpired in your presence and hearing with anyone." On voir dire of prospective jurors for the second trial, Firestone objected to trying the case with jurors who had been exposed to the panel discharged after the mistrial and made an oral motion for continuance on that ground. This motion for a continuance was denied. In its motion for new trial, Firestone set forth as error the trial court's refusal to grant the continuance and also asserted that "(t)he jurors knew that the trial immediately (preceding) the one on which they sat ended in a mistrial and at least one of the jurors heard that the mistrial resulted from something having to do with the recall of tires." In support of its motion for new trial, Firestone submitted the affidavit of one of the jurors, which contained the following statements: "I was aware at the time of my selection as a juror and during the trial of this case that a prior trial of this case had concluded immediately before I was selected as a juror and had ended in a mistrial. I acquired such knowledge outside the courtroom in the halls through conversations with other persons summoned for jury service in the Cobb Superior Court on May 29, 1979, and from other individuals in the halls outside the courtroom. I, myself, heard in these conversations that the mistrial resulted from something having to do with the recall of tires. I know from conversations I overheard between fellow jurors sitting on the trial of this case with me that they were aware that a previous trial between the same parties was declared a mistrial, because they stated in my presence that they knew about it."

"The affidavits of jurors may be taken to sustain but not to impeach their verdict." Code Ann. § 110-109. " 'The rule (of Code § 110-109) has a valid and salutary application in disallowing jurors to impeach their verdicts on the basis of statements made to one another in the jury room and the effect of those statements upon the minds of the individual jurors.' (Cit.) ... 'Under this rule of law, it has been repeatedly held that the affidavit of a juror will not be received to show that the jurors in arriving at their verdict acted upon private knowledge or upon matters which were not in evidence.' (Cits.)" Central of Ga. R. Co. v. Nash, 150 Ga.App. 68, 73, 256 S.E.2d 619 (1979). Citing Livingston v. Wynne, 147 Ga. 307, 93 S.E. 877 (1917) and Watkins v. State, 237 Ga. 678, 229 S.E.2d 465 (1976), Firestone urges, however, that the rule prohibiting jurors from impeaching their verdict has no application in this case because the very possibility that there would be interaction of jurors was raised through its motion for continuance at trial before the jury returned its verdict. We do not agree. Both Livingston and Watkins involved alleged juror misconduct during the course of trial. Livingston makes it clear, and it is intimated in Watkins, that this alleged post-selection juror misconduct was the matter of a properly raised objection in the trial court-a motion for mistrial in Watkins -which was not properly disposed of by the trial judge. Neither circumstance exists in the instant case. The allegations raised here at trial were not of post-selection juror misconduct but, rather, of matters which were addressed merely to the qualification of each juror to serve as an impartial fact finder. And the allegations were asserted in the form of a motion for continuance which was properly denied. "The (motion for continuance grounded upon commingling of jurors) addressed the qualification of each juror, and is fully met by the questions and answers on voir dire. (Cits.)" Rutledge v. State, 152 Ga.App. 849, 264 S.E.2d 248 (1979). We, therefore, find no merit in Firestone's first two enumerations of error.

2. A passenger in the truck driven by Pinyan at the time of the crash was killed. Prior to the instant action suit for wrongful death was instituted against Pinyan and his employer in Fulton County by the deceased's husband and children, the allegations being that the crash and resulting death were caused solely and proximately by the gross negligence of Pinyan and his employer. A third-party complaint was served on Firestone, in which Pinyan and his employer alleged that because of negligent manufacture of the tires or by virtue of strict liability, Firestone was liable for all or part of the wrongful death claim. Subsequently, Pinyan and his employer allowed the entry of a consent judgment against them in favor of the plaintiffs in the Fulton County case and, on the same date, dismissed their third-party complaint against Firestone.

In the instant case Firestone attempted to introduce into evidence certified copies of the complaint, third-party complaint, consent judgment and dismissal order in the Fulton County litigation. The trial judge refused to admit these documents into evidence. Firestone enumerates this ruling as error, contending that the documents were evidence which would collaterally estop Pinyan from denying that his own gross negligence was the sole proximate cause of the crash which forms the basis of his claim for damages. Firestone also urges that, had the evidence been admitted, its motion for directed verdict should have been granted.

The threshold question is whether, in the instant case, Firestone is entitled to assert a plea of collateral estoppel based upon the Fulton County consent judgment. "In order for the doctrine of res judicata to apply, or for a party to take advantage of the doctrine in a subsequent suit brought against him after the termination of the first, there are three prerequisites to which the situation must conform. They are: (1) identity of parties; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. (Cits.)" Lewis v. Price, 104 Ga.App. 473, 474, 122 S.E.2d 129 (1961). " 'While res judicata applies only as between the same parties and upon the same cause of action to matters which were actually in issue or which under the rules of law could have been put in issue, estoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit.' (Cits.) 'While the phrase "same parties" does not mean that all of the parties on the respective sides of the litigation in the two cases shall have been identical, it does mean that those who invoke the defense and against whom it is invoked must be the same. (Cit.)' " A. R. Hudson Realty v. Hood, 151 Ga.App. 778, 779, 262 S.E.2d 189 (1979).

Application of the above stated rules to the factual situation in the instant case reveals the following: The Fulton County suit was to recover for the wrongful death of the passenger. Pinyan was a defendant in that suit and Firestone was a third-party defendant. Thus, as between Pinyan and Firestone, the only issue which could have been litigated was Firestone's secondary liability to Pinyan for the passenger's death. Code Ann. § 81A-114; Dorsey Heating &c. Co. v. C. C. Dickson, Inc., 153 Ga.App. 599, 266 S.E.2d 282 (1980). The instant suit, however, asserts Firestone's liability for money damages as compensation for Pinyan's own personal injuries-an issue which was not raised and could not have been raised in the Fulton County action. Stoddard Cleaners v. Carr, 220 Ga. 707, 141 S.E.2d 434 (1965). " ' (T)here is an estoppel by the judgment only as to such matters as were necessarily, or as are shown to have been actually, adjudicated in the former litigation. (Cits.)' (Cit.) Estoppel by judgment occurs only when the issue determined in the prior proceeding is the same as that in the subsequent proceeding. (Cits.)" Delta Air Lines v. Woods, 137 Ga.App. 693, 695, 224 S.E.2d 763 (1976). The only issue which could have been determined in the Fulton County suit as between Pinyan and Firestone was the secondary liability of the latter to the former for the death of the passenger. "The present cause of action not being a matter put in issue, or which under the rules of law might have been put in issue under the former judgment, the doctrine of res judicata is not applicable." Eubanks v. Electrical Wholesalers, 116 Ga.App. 56, 58, 156 S.E.2d 502 (1967). Compare, e. g., Myers v. United Ser. Auto. Assn., 130 Ga.App. 357, 203 S.E.2d 304 (1973); Crow v. Mothers Beautiful Co., 115 Ga.App. 747, 156 S.E.2d 193 (1967). Firestone, therefore cannot assert in the instant case the doctrine of estoppel by judgment based upon the prior judgment. Malcom v. Webb, 211 Ga. 449, 454(2), 86...