Ivey v. Wiggins
| Decision Date | 26 January 1961 |
| Docket Number | 1 Div. 768 |
| Citation | 126 So.2d 469,271 Ala. 610 |
| Parties | B. N. IVEY, as Adm'r, v. Jewell WIGGINS, as Adm'x. |
| Court | Alabama Supreme Court |
N. S. Hare and John D. Bonham, Monroeville, for appellant.
B. E. Jones and R. L. Jones, Monroeville, for appellee.
This is an appeal by plaintiff from a judgment of voluntary nonsuit induced by rulings on pleadings in an action for wrongful death of plaintiff's intestate which resulted from an automobile collision.
The complaint charges that defendant's intestate, Spencer Tatum, caused an automobile he was driving to collide with an automobile in which plaintiff's intestate was riding. Count 1 charges negligence and Count 2 wanton misconduct by Tatum.
Defendant filed pleas 1 through 10 in answer to the complaint. Pleas 1 through 5 are pleas of the general issue and contributory negligence. The court sustained demurrer to pleas 7 and 10. The court overruled plaintiff's demurrer to pleas 6, 8, and 9, and this ruling is assigned as error.
Plaintiff filed replication to pleas 6, 8, and 9. The court sustained defendant's demurrer to the replication and this ruling also is assigned as error.
Plea 6 allges that in the same court where the instant action was brought, the same plaintiff has previously brought an action for the wrongful death of his intestate against James H. Burns and L. L. Roth, doing business as Tri-Motor and Implement Company, who will be referred to in this opinion as Tri-Motor. A copy of the prior complaint is made an exhibit to plea 6, which further asserts that the complaint against Tri-Motor alleged that Tatum was a servant, agent, or employee of Tri-Motor and was acting within the line and scope of his authority as such servant at the time the automobile collision occurred; that Tatum, if living, would have been a proper party in the prior action; that said prior action claimed damages for the same collision involved in the present case; that the basis for the prior action is the same as for the instant action and the prior action is the same as the present action except that the prior action was against Tri-Motor as employers of Tatum; that 'The issues in said two cases are the same, the accident or collision, the basis of said two suits, is the same, the facts are the same, and the testimony would be practically identical;' that Tri-Motor filed a plea of the general issue, 'together with the right to give in evidence any other matters which would be a defense to said suit;' that on the trial of the prior action the jury found a general verdict for Tri-Motor; that the court rendered a judgment for Tri-Motor on said verdict, that no appeal was taken from said judgment and it stands as the judgment of the court in said cause; 'that all the issues involved in the present suit were settled in said prior suit, the only difference being that the plaintiff failed against' Tri-Motor, 'who were alleged to be employers of' Tatum, and plaintiff is now bringing a suit for the same injuries against defendant as administratrix of Tatum, 'thereby attempting to split up into two suits the same cause of action;' and that the instant action 'is barred under the doctrine of res judicata.'
Plea 8 is the same as plea 6 except that plea 8 concludes with the assertion that the pleadings in the prior action, 'so far as the plaintiff is concerned,' were based on the allegation that Tatum was the servant, agent, or employee of Tri-Motor, 'and plaintiff is now estopped to deny that such agency existed;' that it was determined that Tri-Motor were not liable and the prior judgment 'is res judicata in this proceeding.'
Plea 9 is also the same as plea 6 except that plea 9 concludes that plaintiff had an election to sue the employer or the instant defendant, and, having elected to sue the employer, plaintiff is estopped from maintaining the instant action.
The replication asserts that in the prior action the issue of agency was a material issue but is not so in the instant case; that to have recovered in the prior action plaintiff was required to prove that Tatum was the servant of Tri-Motor; that in the prior action Tri-Motor denied all material allegations of the complaint including the allegation that Tatum was the servant or agent of Tri-Motor and acting within the line and scope of his employment when he did the act complained of; that Tri-Motor never admitted that Tatum was acting as such agent or servant and that Tri-Motor denied that Tatum was acting as such agent on the occasion complained of; and that the court, in the prior trial, at the request of Tri-Motor, instructed the jury in writing that unless the jury were reasonably satisfied from the evidence that Tatum was, at the time complained of, acting within his authority as a servant, agent, or employee of Tri-Motor, plaintiff could not recover. Such written charges alleged to have been given in the prior action at the request of Tri-Motor are made exhibits to the replication.
The substantial question on this appeal is whether or not the allegations in the pleas show that the judgment for Tri-Motor and against plaintiff is res adjudicata so as to bar the claim plaintiff here asserts against this defendant.
Broadly stated, the general rule is that to sustain a plea of this character, res adjudicata or estoppel by judgment, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point. Interstate Electric Company v. Fidelity & Deposit Company, 228 Ala. 210, 153 So. 427.
Appellant's argument is directed principally to the proposition that pleas 6, 8, and 9 fail to show an identity of issues, that is, that the judgment in favor of Tri-Motor was rendered on the identical issue presented in the instant case and solely on that issue. The lack of identity of defendants in the two cases and lack of mutuality of interest is also argued, but we are of opinion that the lack of identity of issues controls the decision on this appeal.
We note that in a tort action brought against master and servant jointly, judgment in favor of the master and against the servant was affirmed by this court. Lee v. Diamond, 234 Ala. 175, 174 So. 309. See also Downes v. Norrell, 261 Ala. 430, 74 So.2d 593.
This court has also held that recovery of judgment against the master did not bar an action against the servant in the absence of a showing that the plaintiff had accepted the proceeds of the action against the master. Huey v. Dykes, 203 Ala. 231, 82 So. 481.
Griffin v. Bozeman, 234 Ala. 136, 173 So. 857, illustrates the point as to lack of identity of issues. In that case plaintiff sued Griffin and his partner for trespass to land by cutting timber thereon. Griffin moved to dismiss the action on the ground that plaintiff had failed to pay the costs in a prior suit against Bolinger wherein judgment had been rendered in favor of the defendant, Bolinger, in an action for cutting the same trees. The motion to dismiss was denied and that ruling was assigned as error.
The defendant in the second suit, Griffin, filed also pleas of res adjudicata based on the same prior judgment for Bolinger, but the rulings on the pleas were not reviewed because of lack of a sufficient judgment sustaining the demurrer to the pleas. The opinion states, however, that the pleas serve to...
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