Gilmer v. Porterfield
| Decision Date | 11 February 1975 |
| Docket Number | No. 29258,29258 |
| Citation | 212 S.E.2d 842,233 Ga. 671 |
| Parties | Jeffrey Cushman GILMER v. Otis L. PORTERFIELD. |
| Court | Georgia Supreme Court |
Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, George H. Connell, Jr., Atlanta, for appellant.
William O. Carter, Hartweell, for appellee.
Syllabus Opinion by the Court
This case came to this court on certiorari. Ths statement of facts by the Court of Appeals is restated here for convenience with slight modification.
In a prior diversity of citizenship case brought in the United States District Court for the Middle District of Georgia, Otis Porterfield and his wife sought recovery from Philco Distributors, Inc., based solely upon the alleged negligence of Philco's servant, Jeffrey Gilmer, in causing a rear end collision between Philco's automobile being operated by Gilmer and the Porterfield truck being operated by Mr. Porterfield in which his wife was a passenger. Gilmer was not joined as a party defendant, apparently because of a lack of diversity of citizenship, the Porterfields and Gilmer all being Georgia residents. In that case Philco accepted responsibility for any negligence of Gilmer under the doctrine of respondeat superior; plaintiffs' proffer of evidence as to Gilmer's admission of negligence or declarations against interest at the scene was ruled inadmissible as against Philco, the master and sole defendant; the jury was charged the doctrine of comparative negligence vis-a-vis Gilmer and Mr. Porterfiled; the jury returned a verdict in favor of Mrs. Porterfield on her claim but, apparently as a result of the comparative negligence charge, in favor of Philco on Mr. Porterfield's claim; and the judgment became final.
Mr. Porterfield then instituted the present action against Gilmer based upon the same acts of negligence involved in the prior case against Gilmer's master, Philco, and was confronted in Gilmer's first defense with a plea of 'res judicata and/or estoppel by judgment and/or the law of the case and/or the fact that all of these matters were either previously litigated or could have been litigated previously.' Plaintiff Porterfield and defendant Gilmer both moved for summary judgment as to Gilmer's first defense; the trial court granted Gilmer's motion upholding the defenses of res judicata, etc. and denied the motion of Porterfield. Porterfield complains of both rulings, having obtained a certificate of immediate review as to the denial of his motion.
Porterfield contends, inter alia, that the trial court's ruling was erroneous since Gilmer's admissions of negligence or declarations against interest at the scene, ruled inadmissible as against Philco on the prior trial, would be admissible against Gilmer in the instant suit, thus affecting and adding to the quantum and quality of proof on the issue of Gilmer's negligence.
In a 5 to 3 decision (Porterfield v. Gilmer, 132 Ga.App. 463, 208 S.E.2d 295), the Court of Appeals reversed, denying to the defendant the defenses of res judicata and estoppel by judgment, finding itself bound by this court's adherence to the mutuality rule. That rule, as expressed by the Court of Appeals, is as follows:
The Court of Appeals found that the federal court judgment was not effective as res judicata or estoppel by judgment against Gilmer and that consequently Gilmer could not avail himself of that judgment, in view of the requirement of mutuality.
However, some of the decisions of this court, in which the Court of Appeals found the mutuality requirement, involved estoppels as to recitals in deeds and as to admissions in judicio. Other such decisions involved lack of privity as well as estoppel.
We deal here with a suit by a person against an...
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