Harding v. Carr

• Decision Date: 13 August 1951
• Docket Number: Nos. 9179,9180,s. 9179
• Parties: HARDING v. CARR. CHASE, Jr. v. CARR. Ex.
• Court: Rhode Island Supreme Court

Page 79

83 A.2d 79

79 R.I. 32

HARDING v. CARR.

CHASE, Jr. v. CARR.

Ex. Nos. 9179, 9180.

Supreme Court of Rhode Island.

Aug. 13, 1951.

Sherwood & Clifford, Sidney Clifford and Raymond E. Jordan, Providence, for plaintiffs.

Francis V. Reynolds, Providence, for defendant.

FLYNN, Chief Justice.

These are two actions of trespass on the case for negligence to recover damages for personal injuries caused by the operation of defendant's automobile by his alleged agent and servant. The cases were tried together in the superior court and are here on the plaintiff's exception in each case to a decision of that court granting defendant's motion for judgment on his plea of res adjudicata.

The following statements from the declaration and travel of the case will be of assistance in understanding the issue. The plaintiffs were injured by an automobile which belonged to defendant Carr but at the time of the accident was being operated by another, namely, John H. McKenzie. Each plaintiff brought separate actions of trespass on the case for negligence against the operator and against the owner, the latter actions alleging that defendant Carr as owner of the automobile was liable for the negligence of McKenzie as his agent and servant. For convenience, unless otherwise stated, the cases will be considered as if only one plaintiff brought separate actions against the operator and the owner respectively but references to the plaintiff will apply to all cases.

The plaintiff first prosecuted the action against McKenzie, the operator, and obtained a judgment against him by default. Satisfaction thereof was sought immediately in a new action brought by plaintiff directly against the United States Fidelity & Guaranty Company under General Laws 1938, chapter 155. Therein he claimed that such company was liable for the judgment against McKenzie by virtue of the provisions of the policy of insurance which it had issued to the owner Carr and which provided coverage to him and to any person who was using the owner's automobile with his permission. After a trial in the superior court, of which the owner had notice and in which he testified as a witness for the defendant insurer, the jury returned a general verdict for the defendant with a special finding that at the time of the accident McKenzie did not have the owner's consent, express or implied, to operate the automobile. Thereafter plaintiff's motion for a new trial was heard and denied, and the case came to this court on his bill of exceptions. In overruling such exceptions this court affirmed the verdict and special findings of the jury and the case was remitted for entry of judgment for the defendant. Chase v. United States Fidelity & Guaranty Co., 73 R.I. 51, 53 A.2d 708.

Thereupon the defendant owner moved to dismiss the instant action against him, which had remained pending and untried in the superior court while the other case against his insurer was being tried and reviewed. The ground of this motion was that the existence of the owner's consent, express or implied, for McKenzie to operate the automobile was a fundamental issue in the instant case and was res adjudicata by virtue of the determination of the identical issue in the plaintiff's former action against the owner's insurer. The trial justice, although recognizing that a motion to dismiss was not the proper procedure to raise such question, nevertheless considered and granted defendant's motion.

On plaintiff's bill of exceptions thereto this court did not pass upon the merits of the decision but pointed out that the proper way to bring the question upon the record was by way of a plea puis darrein continuance, thereby affording plaintiff 'an opportunity to demur, or to reply by alleging further facts admitting the decision or judgment and showing that the issue before the court * * * was never actually involved in the prior action.' Harding v. Carr, 74 R.I. 59, 58 A.2d 626, 627.

Thereafter defendant filed a plea puis darrein continuance setting forth in effect that the liability alleged in the instant case is based essentially upon the fundamental claim that at the time of the accident defendant owner's automobile was being operated with his consent, express or implied; that such issue had been raised, tried and definitely adjudicated adversely to plaintiff in his action against defendant's insurer, which was based upon the insurer's obligation to defendant owner under his policy; and that the verdict, issues and findings therein were set forth and affirmed by this court in the opinion in Chase v. United States Fidelity & Guaranty Co., supra.

The plaintiff did not demur thereto nor reply by setting up any new facts in avoidance of such plea as was suggested in that opinion, but he filed a replication denying 'each and every material allegation of said plea' and concluded to the country. When the case was reached for trial in the superior court defendant, according to the transcript, moved orally 'for judgment for the defendant on the pleadings.' In support thereof he offered to the trial justice the records in the earlier case of Chase v. United States Fidelity & Guaranty Co., and also our opinion therein which set out the facts, issues, special findings and this court's approval thereof, all substantially as alleged in the plea.

On the other hand plaintiff offered no specific objection to such hearing on the special plea of res adjudicata. The record shows that despite the form of plaintiff's replication he made no attempt to present any evidence directly or dehors the record to avoid or challenge the facts as they were alleged in the plea and substantiated by the proof offered by defendant. Clearly the parties and court treated the proceeding as a hearing on the plea of res adjudicata wherein the facts alleged were established by defendant's proof and therefore presented a fundamental issue that was decisive of the case as a matter of law. In the superior court plaintiff took a position in effect the same as if he had interposed a demurrer to the plea. At any rate his principal argument before us is based on the claim that even though the facts alleged in the plea are not disputed the instant case is a different cause of action from the one which he brought against the owner's insurer and therefore as a matter of law the issues decided in the earlier case could not be considered as res adjudicata in the instant action.

In our view this contention is wholly inconsistent with the purpose and effect of G.L.1938, chap. 155, under which plaintiff brought the former action directly against the owner's insurer. Luft v. Factory Mutual Liability Ins. Co. of America, 53 R.I. 238, 165 A. 776; Luft v. Factory Mutual Liability Ins. Co. of America, 51 R.I. 452, 155 A. 526, 83 A.L.R. 745. In those cases this court held that it was not the purpose of chapter 155 to impose on the insurer a liability distinct from the liability of the insured to the injured party that the insurer's liability is dependent upon the fact of the insured's liability to such party; that the statute provides merely an additional remedy for the same cause of action against the insured; that the cause of action on which such additional remedy is based is the liability of the insured to the injured party; and that 'when the action is directly against the insurer, plaintiff (the injured party) must establish his case exactly as though the insured were the defendant, and that the insurer was entitled to any defense available to the insured and also to any defense it might have to liability on its policy of insurance * * *.' Luft v. Factory Mutual Liability Ins. Co. of America, 53 R.I. 238, 241, 165 A. 776, 777.

However, if we were to assume that the causes of action can be considered as different, the plaintiff's problem would not be solved thereby. This court has held that a question or issue distinctly raised by the pleadings, argued by counsel, and deliberately passed on by the court is treated as res adjudicata in a subsequent action between the parties or their privies even if the cases involve different causes of action. Almy v. Daniels, 15 R.I. 312, 4 A. 753, 10 A. 654; Randall v. Carpenter, 25 R.I. 641, 57 A. 865. In the latter case the court cited with approval the leading case of Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195, which pointed out the principle of estoppel underlying res adjudicata when applied to the same causes and again when applied to different causes of action. It there held that where the parties and causes of action are the same a judgment rendered by a court of competent jurisdiction on the merits in a former proceeding is final and amounts to an estoppel as to every issue that might have been raised therein as well as to those actually raised and decided. However, the court also held that where the second action is between the same parties upon a different claim or demand, 'judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.' [25 R.I. 641, 57 A. 866.]

This view of estoppel by adjudication on the merits of an identical and ultimate issue by a court of competent jurisdiction has been recognized generally in both equity and law actions in this state. No case holding to the contrary has been cited and we are aware of none. See R. C. N. Mfg. Co. v. Whitaker, 49 R.I. 449, 144 A. 158; Fraser v. Wright, 54 R.I. 422, 173 A. 544; Matteodo v. Pesce, 68 R.I. 188, 27 A.2d 109; Nardolillo v. Carroll, 70 R.I. 133, 37 A.2d 659; Id., 70 R.I. 383, 38 A.2d 781. See also Hill v. Bain, 15 R.I. 75, 23 A. 44.

The weight of authority elsewhere in this country is to the same effect. Although this principle of estoppel is referred to by various descriptive titles and is supported by different reasons, it nevertheless is treated generally as res adjudicata under the second classification...