Hickman v. Southwest Dairy Suppliers, Inc.

• Decision Date: 29 May 1975
• Docket Number: No. 39704,39704
• Citation: 194 Neb. 17,230 N.W.2d 99
• Parties: , 94 A.L.R.3d 663 Robert HICKMAN, Appellant, v. SOUTHWEST DAIRY SUPPLIERS, INC., a corporation and Milford Johnson, Appellees.
• Court: Nebraska Supreme Court

Page 99

230 N.W.2d 99

194 Neb. 17, 94 A.L.R.3d 663

Robert HICKMAN, Appellant, v. SOUTHWEST DAIRY SUPPLIERS, INC., a corporation and Milford Johnson, Appellees.

No. 39704.

Supreme Court of Nebraska.

May 29, 1975.

Syllabus by the Court

1. The doctrine of issue preclusion recognizes that limits on litigation are desirable, but a person should not be denied a day in court unfairly.

2. Privity implies a relationship by succession or representation between the party to the second action and the party to the prior action in respect to the right adjudicated in the first action.

3. The basis of the doctrine of res judicata is that the party to be affected, or someone with whom he is in privity, has litigated or has had an opportunity to litigate the same matter in a former action.

Mitchell & Beatty, Larry R. Demerath, Timothy D. Whitty, Omaha, for appellant.

Tye, Worlock, Tye, Jacobsen & Orr, John P. Icenogle, Kearney, for appellees.

Heard before SPENCER, NEWTON, CLINTON and BRODKEY, JJ., and WARREN, District Judge.

BRODKEY, Justice.

This is an action for personal injuries and damages sustained by the plaintiff, Robert Hickman, while he and his deceased wife, Marie Hickman, were riding as passengers in a pickup truck owned by plaintiff and his wife, and driven by their mutual friend, Audrey Grassmeyer. The truck collided at a county road intersection with a vehicle owned by the defendant, Southwest Nebraska Dairy Suppliers, Inc., and operated by its employee, defendant Milford Johnson. Plaintiff's wife was killed as a result of that accident. Thereafter, Lawrence F. Weber, duly appointed administrator of her estate, brought a wrongful death action in his own name as personal representative of the deceased wife against the same defendants named in this case for the benefit of the widower and next of kin, as provided in sections 30--809 and 30--810, R.R.S.1943. Trial of that case was commenced in the District Court for Buffalo County, Nebraska, and at the close of the plaintiff's evidence court directed a verdict against the plaintiff administrator and in favor of the defendants. An appeal to this court resulted in a reversal of the action of the District Court and a remand for trial on the issue of whether the negligence of the driver of the truck in which plaintiff and his wife were riding was imputable to the plaintiff; this court found that the driver, Audrey Grassmeyer, was guilty of negligence more than slight as a matter of law. See Weber v. Southwest Dairy Suppliers, Inc., 187 Neb. 606, 193 N.W.2d 274 (1971). The case was then retried to a jury which returned a verdict against the administrator plaintiff and in favor of these defendants. On appeal to this court, the jury verdict in the second trial of that case was affirmed. See Weber v. Southwest Nebraska Dairy Suppliers, Inc., 190 Neb. 389, 208 N.W.2d 667 (1973).

In the present case the husband, Robert Hickman, seeks to recover on his separate cause of action for his own injuries and damages allegedly sustained by him in the accident, alleging that the negligence of these defendants was the cause of the accident and his resulting injuries and damages. The defendants filed an answer to plaintiff's petition and thereafter filed a motion for summary judgment, alleging among other things 'that these defendants are entitled to a judgment as a matter of law for the reason that the prior adjudication of the facts in this matter in the case of Weber v. Southwest Dairy Suppliers, Inc., 190 Neb. 389 (208 N.W.2d 667), is Res judicata as applied to this case, in that this case involves the same issues and subject matter and Almost the same parties.' (Emphasis supplied.) Defendants' motion for summary judgment was sustained by the District Court on June 17, 1974. In its order the court state among other things: 'Granted that these are who separate causes of action which could not be joined. We still have the question to determine where the parties were the same and the issues decided are the same that would have to be submitted in the case that is now before us, does the determination by the jury of these issues become a complete and final determination between the parties. We believe that the case of Voorhees v. Chicago & A.R. Co., 208 Ill.App. 86, where the Court said, 'A point which was directory (sic) in issue in a former suit and was there judicially passed upon cannot again be drawn in question in any future action between the same parties or their proxies, whether the cause of action in the two suits be identical or different. Where a real party in interest has had a trial of his rights on the merits there should be an end to the litigation.'

'Also, along the same line, Keith v. Willers Truck Service, 266 N.W. 256 (S.D.).'

It should be noted in passing that the District Court in its order erroneously indicated that Robert Hickman, the plaintiff in the present action, was the administrator plaintiff in the prior wrongful death action. The fact is that Lawrence Weber was the administrator of the estate of Marie E. Hickman, deceased, and brought that action in his name, as plaintiff. See, Weber v. Southwest Dairy Suppliers, Inc., 187 Neb. 606, 193 N.W.2d 274, 190 Neb. 389, 208 N.W.2d 667.

Following the decision of the trial court sustaining defendants' motion for summary judgment in this case, plaintiff filed a motion for a new trial and rehearing, which motion was denied by the District Court. Plaintiff thereafter perfected his appeal to this court. We reverse and remand.

The issue in this case is whether the husband, Robert Hickman, is precluded under the doctrine of res judicata from bringing and maintaining the present action to recover for his own personal injuries and damages because of the verdict of the jury and judgment in favor of the defendants in the prior wrongful death action brought by the administrator of the estate of his deceased wife against these defendants. Under the traditional rule of res judicata, sometimes called claim preclusion, any rights, facts, or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies. Simmons v. Mutual Benefit Health & Acc. Assn., 186 Neb. 26, 180 N.W.2d 672 (1970); State ex rel. Weasmer v. Manpower of Omaha, Inc., 163 Neb. 529, 80 N.W.2d 580 (1957); Wischmann v. Raikes, 168 Neb. 728, 97 N.W.2d 551 (1959). However, there is a closely analogous doctrine which has evolved from the traditional rule of res judicata, and has been variously referred to as collateral estoppel or issue preclusion, which have also been referred to as extensions of the rules applicable to res judicata. Vincent v. Peter Pan Bakers, Inc., 182 Neb. 206, 153 N.W.2d 849 (1967). See, also, American Province of the Servants of Mary Real Estate Corp. v. Metropolitan Utilities Dist., 178 Neb. 348, 133 N.W.2d 466 (1955).

We think it is clear that the instant case must be considered under the doctrine of issue preclusion or collateral estoppel rather than under traditional res judicata, or claim preclusion, as it is obvious that the husband's claim or cause of action for his own damages in this case is an altogether different and separate claim from that which was the basis of the action by the administrator of his deceased wife's estate, brought under the statutes above referred to. In order to properly dispose of this case under the doctrine of issue preclusion it is, therefore, necessary that we examine the questions of whether or not the parties in the two suits are the same, or, if not, whether privity exists between the plaintiffs in the two actions, and further, whether the plaintiff husband in this case had control of or actively participated in the litigation involving, and trial of, his wife's wrongful death action.

To begin with, it is clear that although the defendants in the two actions were the same, the plaintiffs were not. The plaintiff in the wife's wrongful death action was the administrator of her estate, Weber; whereas the plaintiff in the instant case was the husband, Robert Hickman. However, we think it is clear that even if the husband, Robert Hickman, had been appointed administrator of his wife's estate and had brought the wrongful death action as administrator, the doctrine of collateral estoppel or res judicata would probably not have been applicable to him in the present action. In American Province of the Servants of Mary Real Estate Corp. v. Metropolitan Utilities Dist., Supra, it is stated that: 'In order that parties for or against--whom the doctrine of res judicata is sought to be applied may be regarded as the same in both actions, the general rule is that they must be parties to both actions In the same capacity or quality.' (Emphasis supplied.)

The nature and application of the doctrine of issue preclusion or collateral estoppel was discussed and explained by this court in the case of Vincent v. Peter Pan Bakers, Inc., Supra, and we quote from the opinion: 'The doctrine of issue preclusion recognizes that limits on litigation are desirable, but a person should not be denied a day in court unfairly. American Province, etc., Real Estate Corp. v. Metropolitan Utilities Dist., 178 Neb. 348, 133 N.W.2d 466. The employer of plaintiff's decedent having fully litigated the common issues of negligence, the problem is reduced to the effect of the employment relationship.

"Initially, one might say that a non-party to Suit I should not be bound by the decision in that suit * * *. In fact, the concept of preclusion is spelled out in terms of the individual who has had the incentive and the opportunity to litigate fully the matter involved. * * *

"In the past, such preclusion has extended beyond those persons actually involved in Suit I. A stranger to the first suit has been...