Hudson v. Carr, 65216
| Decision Date | 20 March 1984 |
| Docket Number | No. 65216,65216 |
| Citation | 668 S.W.2d 68 |
| Parties | Lynn James HUDSON, Plaintiff-Respondent, v. Ernest G. CARR, Defendant-Appellant. |
| Court | Missouri Supreme Court |
Ray Dickhaner, Hillsboro, for defendant-appellant.
Earl R. Blackwell, Hillsboro, for plaintiff-respondent.
The plaintiff recovered a judgment for $180,000 for personal injuries. The defendant appeals arguing, first, that the judgment for the plaintiff is barred because of collateral estoppel on the issue of contributory negligence, and, second, that plaintiff's damage instruction should have been modified in accordance with Note on Use No. 3 to MAI 4.01. The Court of Appeals, by unanimous action of the 14 judges, transferred the case here for resolution of the collateral estoppel issue. We decide all issues in the case as on original appeal, Mo. Const. Art. V, Sec. 10, and conclude that the doctrine of collateral estoppel should be applied, necessitating a remand for reduction of the judgment. We do not find it necessary to order a new trial either on liability or on damages. We borrow certain portions of Judge Gerald M. Smith's opinion.
The plaintiff, on September 1980, was driving an automobile owned by his brother, Gerald. That vehicle collided with one driven by defendant Carr. Gerald brought suit against defendant for property damage to the vehicle. Defendant brought plaintiff into that suit on an impleader for apportionment, and also sought consolidation of plaintiff's suit against him for personal injuries (the present case) but plaintiff successfully opposed consolidation. A jury trial on Gerald's suit resulted in a verdict apportioning Gerald's property damage judgment, 60% against defendant Carr and 40% against plaintiff. Carr raised plaintiff's contributory negligence as a defense in its original answer and, by amendment after the property damage verdict, raised the defenses of res judicata and collateral estoppel. Upon motion, the court struck the defenses that were based upon the property damage verdict. Plaintiff's petition originally pled as primary negligence that defendant Carr was on the wrong side of the road. This was also the allegation of Gerald's property damage petition. A humanitarian doctrine claim was presented by amendment but not submitted and the case went to the jury only on the allegations of primary negligence.
Defendant argues that the jury in the property damage suit found the plaintiff 40% responsible for the collision and that, under the law as it existed prior to the holding in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), this degree of negligence barred any recovery. The plaintiff argues that the jury which heard the property damage case did not know that its finding as to the apportioned percentages of fault would have any effect upon the plaintiff's suit for personal injuries, and that for this reason it would be very unfair to apply the doctrine of collateral estoppel as a total bar.
The striking circumstance, as the case comes to us, is that the law of Missouri was not the same at the time the case was tried, or at the time of the Court of Appeals opinion, as it is now. Gustafson v. Benda, supra, intervenes. We postponed the effect of that holding until publication in the Southwestern Reporter 1 to avoid disrupting trials which had been held under different assumptions, or trials soon to be held. Here there is the fortuitous circumstance that an issue was drawn in the property damage suit, between this plaintiff and this defendant, in which the jury answered the very question which would have been submitted under Gustafson, in determining the proportions in which the fault of the plaintiff and that of the defendant contributed to the collision. The majority of this Court which decided Gustafson did so in the conviction that it represented a legal approach which was superior to then existing doctrine. When this new law may be applied as easily as it can be under the circumstances of this case, we see no reason for not applying it.
In Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979), the Court set out the following principles for application of collateral estoppel:
The court in reviewing whether the application of collateral estoppel is appropriate should consider: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; and (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication ... Most courts have added a fourth factor to the three enunciated ...: whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit ... Fairness is the overriding consideration in determining whether or not to apply the Doctrine of Mutuality. (Emphasis in original).
Oates was a case in which the question was the use of collateral estoppel by a non-party to the original suit against a party to that suit. The court held that collateral estoppel could be used by a nonparty, thereby eliminating the requirement of mutuality of estoppel. It is at least arguable that the fourth factor of full and fair opportunity to litigate referred to in Oates is applicable only when there exists an absence of mutuality. In Jones v. Corcoran, 625 S.W.2d 173, 174 (Mo.App.1981), the court stated in dictum that it did not consider the Oates fairness doctrine limited to that situation. We need not resolve the point because it seems clear, in the case before us, that all four criteria have been met. Defendant's allegations in seeking to invoke the collateral estoppel defense are sufficient to meet the Oates test, and proof at trial was excused when the defenses were struck on motion.
Prior to Gustafson courts indicated an uneasiness in applying collateral estoppel to cases tried in accordance with Missouri Pacific Railroad Company v. Whitehead & Kales, 566 S.W.2d 466 (Mo. banc 1978). Cf. Jones v. Corcoran, supra. As the law then stood the negligence of defendants was compared but that of plaintiffs was not. This dilemma no longer besets us. The injustice perceived in the earlier cases no longer is a factor.
The Court of Appeals expressed concern about whether the record was sufficient to permit final resolution of the case or whether, in the event the collateral estoppel claim were found to have merit, there would have to be a remand for the taking of evidence. The defendant of course offered no evidence on the collateral estoppel issue after the defense was struck from his answer. We believe that the record as supplemented by the briefs of the parties demonstrates that no genuine issue of fact remains. The plaintiff was a party to the prior suit, which resulted in a judgment on the merits. He had every opportunity to demonstrate to the jury that he was free from negligence and...
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...of the errors in submission, provides a sufficient basis for calculating the plaintiff's damages on a proper legal theory. Cf. Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984). The judgment is reversed and the cause is remanded with directions to enter judgment for the plaintiff for the full a......
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