Mills v. Roberts

• Decision Date: 11 September 1984
• Docket Number: No. 68201,68201
• Citation: 322 S.E.2d 93,172 Ga.App. 77
• Parties: MILLS v. ROBERTS.
• Court: Georgia Court of Appeals

Page 93

322 S.E.2d 93

172 Ga.App. 77

MILLS v. ROBERTS.

No. 68201.

Court of Appeals of Georgia.

Sept. 11, 1984.

Berrien L. Sutton, Homerville, John B. Thigpen, Sr., Blackshear, for appellant.

James E. Singer, Bobby T. Jones, Metter, Carroll V. Reynolds, Swainsboro, for appellee.

POPE, Judge.

This is the fourth in a series of lawsuits filed as the result of a collision which occurred on November 4, 1981 between a vehicle owned by Dixie Concrete Service, Inc. and a vehicle owned by Pierce Timber Company, Inc. In the first case, filed in Pierce County Superior Court, Willie James Baker (a passenger in the Dixie Concrete vehicle) sued Pierce Timber under the doctrine of respondeat superior, alleging negligence on the part of the driver of the Pierce Timber vehicle, William Adrian Roberts (appellee herein). A jury returned a verdict in favor of Pierce Timber and judgment was entered thereon. In the second case, also filed in Pierce County Superior Court, Dixie Concrete sued Pierce Timber, that action also under the doctrine of respondeat superior and alleging negligence on the part of Roberts. Summary judgment in that case was entered in favor of Pierce Timber. In the third case, Jackie Williams (another passenger in the Dixie Concrete vehicle) sued both Pierce Timber and Roberts in the United States District Court for the Southern District of Georgia, alleging essentially the same grounds for recovery as had been raised in the state court actions. In that case summary judgment was entered in favor of both Pierce Timber and Roberts. In the case at bar, Joe Lewis Mills (appellant herein), the driver of the Dixie Concrete vehicle, brought this negligence action against Roberts, the driver of the Pierce Timber vehicle; Pierce Timber is not a party to this action. This appeal arises from the trial court's grant of summary judgment in favor of Roberts.

The apparent basis for the grant of summary judgment in the case at bar was that Mills' action against Roberts is barred by the doctrine of res judicata as a result of the judgments rendered in the three previous cases. We are called upon to decide whether the judgments in the three previous cases (or any one of them) act as a bar to the instant action. The broad term "res judicata" is inclusive of both estoppel by judgment and also collateral estoppel. See 50 C.J.S. 143, Judgments § 687. While there are differences in the applicability of these two estoppels, both require an identity of parties or their privies in order to act as a bar to a second lawsuit. Id.; Kelliher v. Stone & Webster, Inc., 75 F.2d 331, 332-3 (5th Cir.1935). Although Mills bases his recovery in this case upon essentially the same facts as were litigated in the three previous actions, it is clear from the face of the three judgments rendered in those cases that neither Mills nor anyone in privity with him was a party thereto. Roberts was a party defendant in only the federal lawsuit. "Persons having ... rights of action against one or more of the parties [to a former action] are not bound by the judgment if they were not made parties to the suit, and had no right to be heard or to appeal...