Motors Ins. Corp. v. Coker

• Court: Arkansas Supreme Court
• Writing for the Court: ROBINSON; McFADDIN
• Citation: Motors Ins. Corp. v. Coker, 238 S.W.2d 491, 218 Ark. 653 (Ark. 1951)
• Decision Date: 09 April 1951
• Docket Number: No. 4-9465,4-9465
• Parties: MOTORS INS. CORP. v. COKER.

Page 491

238 S.W.2d 491

218 Ark. 653

MOTORS INS. CORP. v. COKER.

No. 4-9465.

Supreme Court of Arkansas.

April 9, 1951.

R. Coker Thomas, Ashdown, for appellant

Bert B. Larey, Texarkana, for appellee.

ROBINSON, Justice.

On the 28th day of April, 1949, Ellen Kerksieck and Marshall Coker, while driving their automobiles, had a collision. Ellen Kerksieck carried with the appellant herein a policy of collision insurance covering the damage to her car. On the 4th day of May, 1949, the Insurance Company paid her $833.47 in settlement of the damages to her automobile under the terms of the policy.

On the 7th day of May, 1949, Ellen filed suit against Coker asking for damages by reason of personal injuries she received at the time of the collision. Subsequently, she settled with Coker and dismissed with prejudice the case which she had filed against him. Thereafter, on the 24th day of October, 1949, the Motors Insurance Corporation, the appellant herein, filed suit against Coker alleging that the Insurance Company had paid Ellen for the damages she sustained to her automobile and by assignment, the Insurance Company was subrogated to Ellen's rights as against Coker for the damages to Ellen's car. The defendant Coker entered a plea of res judicata. After consideration of the Stipulations and Agreements of counsel (which do not appear in the record), the Court dismissed the suit for the reason that there was only one tort committed, that Ellen had but one cause of action, which had been exhausted, and that the issue was res judicata. We agree with the trial court.

In the case of Robinson v. Missouri Pac. Transp. Co., 192 Ark. 593, 93 S.W.2d 311, 313, Mr. Justice Mehaffy, speaking for the Court said: 'It is the well-settled doctrine in this jurisdiction that a judgment of a court of competent jurisdiction is conclusive of all questions within the issue whether formally litigated or not. It extends, not only to questions of fact and law which were decided in the former suit, but also to the grounds of recovery or defense, which might have been, but were not, presented.' A long time of cases supporting this view are cited therein.

In the case of Ozan Lumber Co. v. Tidwell, 213 Ark. 751, 212 S.W.2d 349, 350, Tidwell had sued the Lumber Company for personal injuries, and, after recovering a judgment, filed another suit for property damage growing out of the same tort. We held the second suit to be res judicata and there said:

'Appellee, Tidwell, alleged in his first complaint, filed in 1945, not only a cause of action for personal injuries, but also a cause of action for the destruction of, or damages to his truck, but he did not pray for any property damage, a right that was open to him and which in view of the allegations in his complaint he should have litigated in his first suit. We hold, therefore, that the former judgment was conclusive not only of all damages for personal injuries but for any damages to his truck.' And the Court quoted from McDaniel v. Richards, 141 Ark. 453, 217 S.W. 478, as follows:

'Mr. Justice Wood, speaking for the court, said: 'When a complaint on its face shows that a cause of action stated therein was between the same parties and involving the same subject-matter as that determined, or which could have been determined, in a former suit between them, the complaint fails to state a cause of action which the plaintiff can maintain against the defendant and is demurrable. The demurrer in such case will be treated as a plea of res adjudicata, and the case disposed of the same as if such formal plea had been filed.''

In the instant case, Ellen Kerksieck is not a party. However, before the suit could be maintained properly, it would be necessary to make her a party. § 27-802, Ark.Stats., provides: 'When the assignment [of the thing in action] is not authorized by statute, the assignor must be a party as plaintiff or defendant.'

In the case of Chicago, R. I. & P. Ry. Co. v. Cobbs, 151 Ark. 207, 235 S.W. 995, 996, Cobbs suffered a fire loss of about $20,000. The Insurance Companies paid Cobbs $8200. Cobbs sued the Railway Company alleging that the fire was caused by the Railway Company's negligence and asked judgment for the loss suffered less the amount of insurance. The Insurance Companies also sued in the same case asking judgment on their claims of subrogation. The question arose as to whether the Insurance Companies were proper parties in that particular suit. Speaking for the Court, Mr. Chief Justice McCulloch said:

'The insurance companies, by virtue of the assignment to them of a portion of the right of actions are possessed of an interest in the subject-matter in controversy, and are therefore necessary parties. Cobbs, the other plaintiff, was a necessary party, not only from the fact that he was the owner of an interest in the subject-matter of this controversy, but also for the reason that he was the assignor of that part of the cause of action which was assigned to the insurance companies, and since it is a right of action not assignable under our statute (Crawford & Moses' Digest, § 475) [now Ark.Stats. § 68-801], the assignor was a necessary party to a suit to recover. St. L[ouis], I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 541, 1 S.W. 704. Under the statute cited above, only agreements or contracts in writing are assignable, and the cause of action in the present instance was not based on an agreement in writing. The insurance companies succeeded, by the assignment, to the right of action by Cobbs for the recovery of unliquidated damages on account of the wrongful act of the railway company. It follows, therefore, that the causes of action, for the reasons stated, are not separable.'

'Where the assignment of a thing in action is...