Illinois Cent. Gulf R. Co. v. Parks, 1-678A1480.

• Citation: 390 N.E.2d 1078
• Decision Date: 31 July 1979
• Docket Number: No. 1-678A1480.,1-678A1480.
• Parties: ILLINOIS CENTRAL GULF RAILROAD COMPANY AND ROBERT L. WALTRIP, Appellants-Defendants, v. Jessie L. PARKS, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

390 N.E.2d 1078

ILLINOIS CENTRAL GULF RAILROAD COMPANY AND ROBERT L. WALTRIP, Appellants-Defendants, v. Jessie L. PARKS, Appellee-Plaintiff.

No. 1-678A1480.

Court of Appeals of Indiana, First District.

June 25, 1979.

Rehearing Denied July 31, 1979.

Robert H. Hahn, Evansville, for appellant-defendant Illinois Central Gulf Railroad Company; Bamberger, Foreman, Oswald & Hahn, Evansville, of counsel.

Glenn A. Grampp, James D. Lopp, Sr., James D. Lopp, Jr., Evansville, for appellee-plaintiff; Lopp, Lopp & Grampp, Evansville, of counsel.

LYBROOK, Judge.

Pursuant to the trial court's certification under Ind.Rules of Procedure, Appellate Rule 4(B)(5)(a) and (b), Illinois Central Gulf Railroad appeals from an interlocutory order of the Warrick Circuit Court, alleging that the trial court erred in ruling: 1) that a final judgment rendered on the merits in Posey Circuit Court between the same parties was not res judicata in the case at bar; and 2) that the final judgment in Posey Circuit Court did not constitute an adjudication of appellee Jessie L. Park's contributory negligence in this action.

We affirm.

This action is a companion case to Illinois Central Gulf Railroad Co., Robert L. Waltrip v. Bertha Fay Parks, Jessie L. Parks, (1979) Ind. App., 390 N.E.2d 1073, also affirmed this day by this court and to which we will make reference in our disposition of the case at bar.

The facts and the procedural postures of the two causes are as follows: Bertha and Jessie were injured on March 2, 1975, when the automobile which Jessie was driving and in which Bertha was a passenger collided with a trian operated by Illinois Central Gulf under the direction of Engineer Robert L. Waltrip. Mr. and Mrs. Parks filed two complaints in Vanderburgh Superior Court, naming Illinois Central Gulf and Waltrip as defendants in each and requesting a change of venue in each. The companion case, in which Bertha prayed for damages for her personal injuries and Jessie prayed for damages for loss of Bertha's services and consortium because of her personal injuries, was venued to Posey Circuit Court. This case, in which Jessie prayed for damages for his personal injuries, was venued to Warrick Circuit Court.

On June 3, 1977, judgment was entered in the companion case in Posey Circuit Court after a jury verdict as follows:

"We, the jury, find for the plaintiff Bertha Fay Parks, in her action for personal injury and against the defendant, Illinois Central Gulf Railroad Company in the amount of Thirty Thousand Dollars ($30,000.00). We find for the defendant Robert L. Waltrip.

We, the jury, find for the defendants and against the plaintiff, Jessie L. Parks, in his action for loss of services and consortium and expenses."¹

On January 31, 1978, the defendants in the case at bar filed a motion for summary judgment under Trial Rule 56. Jessie did likewise on February 8, 1978. On June 14, 1978, the trial court entered the interlocutory order at issue here, concluding that:

"1. The judgment rendered in the Posey Circuit Court action in favor of Bertha Faye sic Parks adjudicated the negligence of the defendant, Illinois Central Gulf Railroad Company and under the doctrine of res judicata or collateral estoppel the defendant, Illinois Central Gulf Railroad Company is estopped to deny its negligence herein.

2. The judgment rendered in the Posey Circuit Court action in favor of Bertha Faye sic Parks adjudicated the negligence of the defendant, Robert L. Waltrip, and under the doctrine of res judicata or collateral estoppel the plaintiff herein is estopped to assert negligence on the part of the defendant, Robert L. Waltrip.

3. The judgment rendered in the Posey Circuit Court in favor of the defendant, Illinois Central Gulf Railroad Company and against the plaintiff Jessie L. Parks, does not constitute an adjudication of the alleged contributory negligence of the plaintiff, Jessie L. Parks, in this action."

Pursuant to T.R. 56(D), the trial court ordered:

"That the following facts are without substantial controversy and upon trial shall be deemed to be established:

1. The defendant, Illinois Central Gulf Railroad Company was guilty of negligence which proximately caused the accident.

2. The defendant, Robert L. Waltrip, was not guilty of negligence which proximately caused the accident.

The Court further orders that the issues to be determined at the trial of this cause will be whether the plaintiff was guilty of contributory negligence, whether the contributory negligence of the plaintiff proximately contributed to the accident, injuries and damages complained of and whether plaintiff sustained injuries and damages.

The motion for summary judgment for the defendant, Illinois Central Gulf Railroad Company is overruled."

This appeal by Illinois Central Gulf followed.

We begin, as did the railroad in its brief to this court, with the definitive and often-quoted statement on the law of res judicata in this state from the opinion of Judge Shake in Town of Flora v. Indiana Service Corporation, (1944) 222 Ind. 253, 256-57, 53 N.E.2d 161, 163:

"There are two well defined branches of the rule of res judicata. The subject has often been confused by the loose use of descriptive terms. One branch of the subject deals with prior adjudication as a bar. Under it a cause of action finally determined between the parties on the merits by a court of competent jurisdiction, cannot again be litigated by new proceedings before the same or any other tribunal, except by way of review according to law. Such a judgment or decree so rendered is a complete bar to any subsequent action on the same claim or cause of action, between the same parties, or those in privity with them. Every question which was within the issues, and which, under the issues, might have been proved, will be presumed to have been proved and adjudicated. Citation omitted. This rule is perhaps best described as `estoppel by judgment.'

The other branch of the subject applies where the causes of action are not the same, but where some fact or question has been determined and adjudicated in the former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties. In such cases the former adjudication of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the latter suit, regardless of the identity of the causes of action, or the lack of it, in the two suits. When the second action between the same parties is on a different cause of action, claim, or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and

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