Gaul v. Tourtellotte

• Decision Date: 10 September 1971
• Citation: 260 Or. 14,488 P.2d 416
• Parties: Willard H. GAUL and Teresa Gaul, Appellants, v. Dagmar TOURTELLOTTE, Respondent.
• Court: Oregon Supreme Court

Page 416

488 P.2d 416

260 Or. 14

Willard H. GAUL and Teresa Gaul, Appellants, v. Dagmar TOURTELLOTTE, Respondent.

Supreme Court of Oregon.

Argued and Submitted July 8, 1971.

Decided Sept. 10, 1971.

John S. Marandas, Portland, argued the cause for appellants. With him on the briefs was Martin Schedler, Portland.

Denny Z. Zikes, Portland, argued the cause for respondent. With him on the brief were McCarty & Swindells, Portland.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, and HOWELL, JJ.

HOLMAN, Justice.

Plaintiff Teresa Gaul, sister of co-plaintiff Willard Gaul, was operating an automobile they jointly owned when it collided with a vehicle driven by defendant. They brought this negligence action to recover for the damage to their vehicle, and defendant counterclaimed for personal injuries. Each side pleaded that the other was collaterally estopped to recover its loss because of alleged determinations of negligence between Teresa and defendant in prior litigation which arose from the same accident. Trial was before the court without a jury on the issue of the alleged estoppels only. Plaintiffs appealed from an adjudication that all parties were estopped to assert their claims. Defendant did not appeal.

In the prior litigation, which is the basis for the respective claims of estoppel, Theresa brought an action against defendant for damages resulting from personal injuries which Teresa claimed to have suffered in the accident. Defendant there also counterclaimed for her own injuries and each party claimed the other was negligent. The jury in that case returned a simple verdict for defendant, thus allowing neither party a recovery.

By their appeal in the present case, plaintiffs attack not only the trial court's conclusion that Teresa is estopped by the determination in the prior action from pursuing the issue of defendant's liability, but also the trial court's holding that Willard is in privity with Teresa and, therefore, similarly estopped. We will first examine the question of whether Teresa is estopped.

Under the provisions of ORS 16.220(h) ¹, separate actions may be brought to recover for injuries to person and property which arise out of the same occurrence. Winters v. Bisaillon, 153 Or. 509, 57 P.2d 1095, 104 A.L.R. 968 (1936). Therefore, the second action, not being upon the same claim or demand as the first, raises a question of collateral estoppel and not one of res judicata. Bahler v. Fletcher, 91 Or.Adv.Sh. 21, 23, 474 P.2d 329 (1970).

The doctrine of collateral estoppel grants finality only to facts which were actually or necessarily adjudicated in the prior action. Burnett v. Western Pac. Ins. Co., 255 Or. 547, 556, 469 P.2d 602 (1970); State v. George, 253 Or. 458, 463, 455 P.2d 609 (1969); State of Oregon v. Dewey, 206 Or. 496, 504, 292 P.2d 799 (1956). In making the determination whether certain facts were adjudicated in the first case, it is proper, and often necessary, to examine the evidence and the instructions of that action, as well as its judgment order and pleadings. Burnett v. Western Pac. Ins. Co., Supra, 255 Or. at 556, 469 P.2d 602; State v. George, Supra, 253 Or. at 464, 455 P.2d 609; State of Oregon v. Dewey, Supra, 206 Or. at 505 and 511--512, 292 P.2d 799.

The relevant issues in the first litigation were: 1) was Teresa injured? 2) was defendant negligent? 3) were Teresa's injuries the result of defendant's negligence? 4) was Teresa contributorily negligent? It is obvious that, if Teresa was actually injured as a result of the accident, the jury in the first case failed to find in her favor because it found either she was negligent or the defendant was not. Either determination would estop Teresa from recovering her property damage in this case.

An examination of the pleadings and testimony in the first case discloses that plaintiff pleaded she was injured as the result of the accident and that the medical witness for defendant testified that in his opinion Teresa received injuries to her back and to her thumb. In addition, he testified it was probable that she had suffered a cracked rib. Plaintiffs now take the position that such injuries were of little consequence, and, therefore, the jury could have found that Teresa was not injured. Plaintiffs' position is strikingly different from that taken by Teresa in her personal injury complaint where she requested damages in the sum of $7,500. In any event, we find the record in the first case forecloses the possibility that the jury found Teresa was not entitled to recover because she was not injured.

Moreover, no basis appears in the first case for the jury to have found that Teresa's injuries were not the result of the accident. The testimony of defendant's doctor in that case discloses a history of injury in the accident which was in conformance with Teresa's pleadings. We should have before us the full testimony in the first case, but, we do not. However, it is apparent from the trial record in the present case that the real dispute is not whether the jury in the first case could have found for defendant because Teresa's injuries did not result from the accident, but, whether it could have done so in the belief that she was uninjured.

The only conclusion the jury could have reached in the first case was that the defendant was not negligent or that Teresa was contributorily negligent. In either event, Teresa is estopped from recovering in the present litigation. The case of Winters v. Bisaillon, Supra, presents an almost exact duplication of the present factual situation insofar as Teresa is concerned. In Winters there was an accident between an ambulance and another vehicle. The driver of the ambulance unsuccessfully sought recovery for his personal injuries in an action in which the defendant pleaded contributory negligence. The ambulance driver then attempted to recover for the damage to his vehicle in a subsequent action. The trial court in the second action was of the opinion that the issues of negligence and contributory negligence had been previously adjudicated in favor of defendant and estopped plaintiff from maintaining his property damage claim. Upon plaintiff's appeal, this court said:

'Since, under the statute, separate actions may be brought to recover for injury to person and to property, the judgment rendered in the personal injury action is not an absolute bar to the prosecution of the action for injury to the ambulance. Nevertheless, the former adjudication is conclusive as to the material issues of fact actually litigated in the prior action....