Lea v. Shank

• Decision Date: 25 March 1970
• Citation: 85 Cal.Rptr. 709,5 Cal.App.3d 964
• Court: California Court of Appeals Court of Appeals
• Parties: Tommy C. LEA, Plaintiff and Respondent, v. Robert L. SHANK and Don McAtee, Inc., Defendants and Appellants. Civ. 9375.

Page 709

85 Cal.Rptr. 709

5 Cal.App.3d 964

Tommy C. LEA, Plaintiff and Respondent, v. Robert L. SHANK and Don McAtee, Inc., Defendants and Appellants.

Civ. 9375.

Court of Appeal, Fourth District, Division 1, California.

March 25, 1970.

Opinion Modified on Denial of Rehearing April 23, 1970.

See 86 Cal.Rptr. 515.

[5 Cal.App.3d 967] Harry M. Hunt, Los Angeles, and John E. Finn and Victor Rosenblatt, Los Angeles, for appellants.

Albert E. Nasser, Anaheim, and Charles R. Weldon, Norwalk, for respondent.

OPINION

WHELAN, Associate Justice.

Defendants Robert L. Shank (Shank) and Don McAtee, Inc. (McAtee) appeal from a judgment entered in favor of plaintiff Tommy C. Lea (Lea) on March 13, 1968 in an action for damages for personal injuries sustained by plaintiff Lea in a collision of the vehicles.

Lea was driving a truck. Eli Doneff (Doneff) was a passenger in the Lea vehicle. A truck owned by McAtee and driven by Shank was proceeding in the opposite direction and collided with the Lea vehicle. Both Lea and Doneff were injured.

The case was submitted to the jury solely on the issues of proximate cause and damages.

The answers of Shank and McAtee alleged contributory negligence on the part of Lea. McAtee's answer denied the truck had been operated by Shank with McAtee's consent; McAtee filed a cross-complaint against Sylvia Bruner (Bruner) for damage to McAtee's truck which alleged the truck had been operated with McAtee's consent; and alleged Bruner's negligence had caused McAtee's truck to collide with Lea's truck.

The parties appeared for trial of the present action on March 6, 1968. Lea was represented by Charles Weldon; also present was Albert E. Nasser, an attorney of record for Lea. Shank and McAtee were represented by J. E. Finn; Bruner was represented by Robert V. Keller.

Shank and McAtee moved for a continuance to obtain a neurological examination of Lea. Mr. Finn represented he had first learned on March 4 that a neurologist would testify as a witness for Lea. Upon questioning by the court Mr. Finn stated he could give no date for such an examination although he had called the offices of two neurologists on March 5, and did not know how soon he could get a neurologist to make an examination and be available as a witness.

There was extensive discussion among court and counsel on all sides as to whether Mr. Finn might have been lulled into a belief that Lea claimed no neurological symptoms.

The motion for continuance was denied.

Next, Mr. Weldon and Mr. Keller asserted an estoppel against Shank and McAtee to deny that Shank was negligent in the operation of the McAtee truck, based upon the results of an earlier action in the Superior Court of Los Angeles County brought by Doneff (Doneff action) against Shank and Bruner which was tried during the month of February 1968.

The court was asked to rule that the issue of Shank's negligence had been adjudicated against him and that it had been adjudicated that Brunner had not been negligent. In support of that motion there were presented and received in evidence certified copies of (1) a judgment on verdict dated February 9, 1968 in an action entitled 'Eli Doneff vs. Robert Lee Shank et al,' 'that Eli Doneff take nothing by reason of his complaint and that defendant Sylvia Bruner have and recover from said plaintiff Eli Doneff costs and disbursements'; the judgment recited the jury's negative answers to an interrogatory as to Bruner's negligence; (2) minutes of the court for February 9, 1968 in an action entitled 'Eli Doneff vs. Robert Lee Shank, et al' which show that McAtee also was a defendant therein, and which recite that the jury had returned answers to interrogatories as follows:

'Interrogatory #1. Was Robert Lee Shank negligent? Yes.

'Interrogatory #2. Was the negligence of Robert Lee Shank a proximate cause of the collision? Yes.

'Interrogatory #3. Was Sylvia Bruner Shapley negligent? No.

'Interrogatory #4. Was the negligence of Sylvia Bruner Shapley a proximate cause of the collision? No.

'Warren L. Carroll, Jury Foreman. February 9, 1968.';

further that the answers to #1 and #2 were unanimous; that two jurors had voted to find Bruner negligent and that her negligence was a proximate cause of the collision; (3) minutes in the same action for February 14, 1968 reciting the presence of counsel for Shank, McAtee and Doneff and their representation the case had been settled.

The minutes show that Mr. Finn was attorney for Shank and McAtee in the Doneff action; that Mr. Weldon represented Doneff and Mr. Keller represented Bruner.

In the discussions in chambers various statements were made by counsel with reference to the proceedings in the Doneff action. Mr. Finn mentioned, 'Monday after the trial, the morning we settled'; 'we settled that case before the doctor appeared on the stand'; 'it's true that we did have the mistaken impression there was res judicata, and that was shared by Mr. Nasser, Mr. Keller and myself.'

Among the statements made by Mr. Nasser were these:

'Going back to the settlement conferences held in this case, I must state that at no time did serious settlement conferences enter into it, for the simple reason the defendants were waiting until liability could be established between the defendants, so we never really had a settlement conference per se.'

Mr. Keller used this language:

'* * * I have been led to believe since the verdict, that no one was going to proceed against my client. We received by mail from Mr. Nasser a dismissal with instructions not to file it until we received a written notification thereof. * * * I have been led to believe this ever since we received a verdict when the issue of liability, I thought, as far as the defendants, was once and forever decided, but the issues on liability in this particular case are exactly the same.

'The parties are in the same vehicle, there never has been contention of contributory negligence on anybody's part. We just decided--as a matter of fact, we decided in chambers to bifurcate the case, try liability only, to try to find out whether my client was in nay was responsible.

'If that was the finding on the part of the jury, then we probably would have settled the case, and Mr. Finn and my principal would have contributed on a fifty-fifty basis.'

The court, in first addressing himself to the question of Res judicata, used this language:

'* * * it being represented to the Court here that there is no issue of contributory negligence, consequently the contention is advanced by counsel for the plaintiff that the issue of liability is res judicata, which position is not agreed to by counsel for the defendant. * * * not by counsel for defendants Shank and McAtee.'

In response to that, Mr. Finn said, 'That's correct.'

Thereafter no further statements were made by counsel for any part as to what matters had been in issue in the trial of the Doneff action or what issues remained in the case at bench, assuming the issue of Shank's negligence had been conclusively adjudicated.

Although the record on appeal does not show it, it is stated in Lea's brief that a dismissal with prejudice of the Doneff action was filed after the trial of the instant case. It has not been represented that a judgment was entered thereon. The brief refers to the dismissal as 'the first final judgment.'

The doctrine of collateral estoppel was applied by the trial court based upon its conclusion that the liability of Shank was Res judicata as between Doneff and Shank, and that Lea was entitled to assert that adjudication as an estoppel against a denial by Shank of his negligence.

The requirement of mutuality of estoppel has been obviated by the decision in Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892. In doing so, the court said:

'The courts of most jurisdictions have in effect accomplished the same result by recognizing a broad exception to the requirements of mutuality and privity, namely, that they are not necessary where the liability of the defendant asserting the plea of res judicata is dependent upon or derived from the liability of one who was exonerated in an earlier suit brought by the same plaintiff upon the same facts. (citations) Typical examples of such derivative liability are master and servant, principal and agent, and indemnitor and indemnitee. Thus, if a plaintiff sues a servant for injuries caused by the servant's alleged negligence within the scope of his employment, a judgment against the plaintiff on the grounds that the servant was not negligent can be pleaded by the master as res judicata if he is subsequently sued by the same plaintiff for the same injuries. Conversely, if the plaintiff first sues the master, a judgment against the plaintiff on the grounds that the servant was not negligent can be pleaded by the servant as res judicata if he is subsequently sued by the plaintiff. * * * The cases justify this exception on the ground that it would be unjust to permit one who has had his day in court to reopen identical issues by merely switching adversaries.

'In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?' (pp. 812--813, 122 P.2d p. 895) The basis of the estoppel is a judgment. There can be no estoppel by verdict or findings of fact until a judgment or decree has been entered upon such verdict or findings. (Estate of Holbert, 57 Cal. 257, 258--260; Birkhofer v. Krumm, 27 Cal.App.2d 513, 543, 81 P.2d 609; ¹ Louie Queriolo Trucking, Inc. v. Superior Court, 252 Cal.App.2d 194, 200, 60 Cal.Rptr. 389.)

'A judgment that the plaintiff recover an amount of damages to be assessed later, by the jury or by the court, is not a final judgment.' (Rest., Judgments, § 41, p. 161...