Keith v. Willers Truck Service
| Citation | 64 S.D. 274,266 N.W. 256 |
| Decision Date | 07 April 1936 |
| Docket Number | 7883 |
| Parties | MELVIN KEITH, Special Administrator of the Estate of Esther Keith, deceased, Appellant, v. WILLERS TRUCK SERVICE, et al., Respondents. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Minnehaha County, SD
#7883—Affirmed
Tom Kirby, Sioux Falls, SD
Attorney for Appellant.
Churchill & Benson, Huron, SD
L.E. Waggoner, Sioux Falls, SD
Attorneys for Respondent.
Opinion Filed Apr 7, 1936
This action was commenced by plaintiff as special administrator and sole beneficiary seeking to recover damages for the alleged wrongful death of his wife. The defendant Willers Truck Service, Inc., answered by denying any negligence and further pleaded a former adjudication of the issue of negligence. The substance of this defense is that plaintiff commenced an action in the circuit court of Lincoln county, involving the identical accident, to recover for personal injuries sustained by him; that in said action the Willers Truck Service, Inc., alleged that the driver of its truck was not negligent and that the collision resulted solely from the negligence of William Keith who was then and there driving the car in which plaintiff and decedent were riding; that the court submitted to the jury in the trial of that action the question of whether or not the defendant Willers Truck Service, Inc., was negligent and the jury thereafter returned a general verdict in favor of said defendant determining thereby that defendant company was not negligent and chid not cause or contribute to the injuries received by plaintiff; and, that the judgment entered in said action is a full and complete adjudication of the issue of negligence presented in the instant case. Demurrer to this defense was overruled, and plaintiff appeals to this court.
In Cromwell v. County of Sac, 3S2, 24 LEd 195, a leading case upon this subject, the Supreme Court of the United States said:
“There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. ... ‘Where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined.’
This language was quoted with approval in Howard v. City of Huron, 60 N.W. 803, and reaffirmed in Pitts v. Oliver, 79 AmStRep 907; Selbie v. Graham, 100 N.W. 755; Davis v. Davis, and Gronseth v. Brubakken, 228 N.W. 189. See, also, Child v. McClosky, 84 N.W. 769; Turner Township v. Williams, 97 N.W. 842; Lamro Townsite Co. v. Bank of Dallas, Ann. Cas. 1917C, 346.
It thus appears that while a second and different cause of action may be defeated by a former judgment because it conclusively adjudicates some essential fact or issue involved in the latter, a judgment can never operate as a bar to a different cause of action. The general principles, applied in numerous decisions, may be stated as follows: First, a final judgment or decree of a court of competent jurisdiction upon the merits is a bar to any future action between the same parties or their privies upon the same cause of action so long as it remains unreversed; and, second, a point which was actually and directly in issue in a former action and was there judicially passed upon and determined by a domestic court of competent jurisdiction cannot be drawn in question in any future action between the same parties or their privies whether the cause of action in the two actions be identical or different. Black on judgments (2d Ed.) Vol. 2, § 504. Under the first rule the res which is judicata is the cause of action. Under the second, the res which may be judicata is the particular issue or fact common to both actions.
In the former action plaintiff was a party in his own right. The death of Esther Keith as the result of the alleged negligence of the defendants gave rise to a cause of action to be enforced in the name of her personal representative. Sections 2929-2931, Rev. Code 1919; Rowe v. Richards, LRA 1915E, 1075, Ann. Cas. 1918A, 294; Ulvig v. McKennan Hospital, 229 N.W. 383; Roster v. Interstate Power Co., 237 N.W. 738; Kerr v. Basham, 252 N.W. 853. The cause of action in the instant case is separate and distinct from the cause of action in the former case, and as regards the defense of res judicata, we are here concerned with the second rule, the conclusiveness of a former adjudication of a fact which was distinctly in issue and directly determined.
It is settled law that a former judgment does not have the effect of res judicata and is not conclusive of a material fact therein adjudicated unless the second action is not only between the same parties, but also between them in the same capacity or character. 15 RCL 1012, and cases cited; Sonnenberg v. Steinbach, 62 AmStRep 885. The respondent contends that, although the two causes of action are different, yet the parties are essentially the same in both actions, and hence the former judgment is conclusive as to issue of negligence here involved and actually determined in the former case.
This court in Carlock v. Loyd, 836, recognized the following rule in determining who are parties for the purpose of determining the conclusiveness of prior judgments:
“The courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation and who conduct and control the action or defense as real parties, and hold them concluded by any judgment which may be rendered, as, for example, those who employ counsel in the case, assume the active management of the proceeding or defense, or who pay the costs and do such other things as are generally done by parties. In other words, by participating in the proceedings one is estopped by the judgment as to any questions actually litigated and decided therein.
Appellant urges that there is a want of identity of parties and in support of this contention cites and relies upon the cases of McCarthy v. Wm. H. Wood Lumber Co., 219 Mass. 566, 107 N.E....
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