Frontier Van Lines, Inc. v. Maryland Bank & Trust Co.

• Decision Date: 07 May 1975
• Docket Number: No. 171,171
• Citation: 336 A.2d 778,274 Md. 621
• Parties: FRONTIER VAN LINES, INC. v. MARYLAND BANK & TRUST COMPANY.
• Court: Maryland Court of Appeals

Page 621

274 Md. 621

336 A.2d 778

FRONTIER VAN LINES, INC. v. MARYLAND BANK & TRUST COMPANY.

No. 171.

Court of Appeals of Maryland.

May 7, 1975.

Sheldon P. Schuman, Bethesda (Koepenick, Patterson, Schuman & Donahue, Bethesda, on the brief), for appellant.

Robert M. Wright, Baltimore (Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, and Joseph D. Weiner, Leonardtown, on the brief), for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SINGLEY, Judge.

In this case, we are called upon once again to consider the application of the doctrine of res judicata. Frontier Van Lines, Inc. (Frontier), a Kansas corporation engaged in the moving business, has a branch office in Lexington Park, Maryland, since a large part of its business consists of moving service personnel to and from the Patuxent River Naval Air Station. When Frontier discovered that a substantial number of United States Treasury checks issued to it had been converted to his own use by C. Jerry Groh, an officer of Frontier, Frontier turned its efforts to recouping its loss.

Payments in restitution were made by the embezzler, but these ceased when the amount of $11,000.00 was reached. In April, 1973, Frontier brought suit in the Circuit Court for St. Mary's County against Maryland Bank & Trust Company (the Bank), alleging that when Frontier had opened its account with the Bank's precedessor, both the corporate resolution and the signature card provided that the signatures of both L. M. Van Hise, president, and C. Jerry Groh, vice president, were required for the drawing and endorsement of checks; that Treasury checks totaling $58,263.47, endorsed 'Frontier Van Lines, Inc.' or 'Frontier Van Lines, Inc., C. Jerry Groh' had been cashed for Groh by the Bank during the period September, 1970 to June, 1971; and that after crediting the $11,000.00 received from Groh in restitution, Frontier had sustained a loss of $47,263.47 as a consequence of the Bank's unauthorized cashing of the checks.

The case was subsequently removed to Calvert County, where on 8 March 1974, a consent judgment for $12,000.00 was entered in Frontier's favor against the Bank. An order of satisfaction was entered on 11 April.

On 2 April 1974, Frontier revisited the Circuit Court for St. Mary's County, where it filed a second action against the Bank. The averments of the second declaration were virtually identical with those of the first: only the ad damnum of $52,156.54 was different, and there was a new allegation that the period during which the defalcations occurred extended from September, 1970 to September, 1971 (and not June, as had been alleged in the first suit) and that the Bank had given Groh cash for checks drawn to Frontier's order and endorsed 'For Deposit.'

The Bank countered with a motion raising preliminary objection grounded on res judicata. The case was again removed to Calvert County, where the motion was granted and the case was dismissed. This appeal followed.

The rule of our cases was stated for the Court by Judge Marbury in Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92, 94 (1961):

'The doctrine of res judicata is that a judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit, where the court had jurisdiction, proceedings were regular, and his omission was due to his own negligence. (citing cases)'

Compare Pat Perusse Realty v. Lingo, 249 Md. 33, 35, 238 A.2d 100, 102 (1968) and see Travelers Insurance Co. v. Godsey, 260 Md. 669, 676, 273 A.2d 431, 435 (1971) which distinguishes the doctrine of res judicata from that of collateral estoppel, a distinction which we intend to observe notwithstanding what might be regarded as a contrary intimation in Missler v. Anne Arundel County, 271 Md. 70, 77, 314 A.2d 451, 456 (1974).

Frontier would clear the Alvey hurdle by maintaining that there was a lack of identity of subject matter: that a different group of checks was the subject of the second suit. There are two answers to this: Frontier's own declaration concedes that the...