Myers' Adm'x v. Brown

• Decision Date: 23 June 1933
• Citation: 61 S.W.2d 1052,250 Ky. 64
• Parties: MYERS' ADM'X v. BROWN.
• Court: Kentucky Court of Appeals

61 S.W.2d 1052

250 Ky. 64

MYERS' ADM'X v. BROWN.

Court of Appeals of Kentucky

June 23, 1933

Appeal from Circuit Court, Greenup County.

Suit by James H. Myers' administratrix against Clancy Brown. From a judgment dismissing the suit, the plaintiff appeals.

Reversed with directions.

John T Diederich, of Ashland, for appellant.

Vinson & Miller and Arthur T. Bryson, all of Ashland, for appellee.

DIETZMAN Justice.

Clancy Brown, a minor, while driving the automobile of his father Rance Brown, collided with James H. Myer. As a result of this collision, Myer was killed. His administratrix brought suit against Rance Brown for the alleged negligent killing of her decedent by Clancy Brown; her suit being grounded on the family purpose doctrine. Rance Brown defended that action solely by a traverse of the alleged negligence of his son resulting in Myers' death and by a plea of contributory negligence on the part of Myers. He did not deny or put in issue his responsibility for his son's acts on the occasion in question under the family purpose doctrine. On the issues formed as indicated, the jury found a verdict for Rance Brown, and judgment was entered accordingly. Thereafter this suit was brought by Myers' administratrix to recover from Clancy Brown for his alleged negligent killing of Myers. Clancy Brown traversed the alleged negligence on his part, pleaded contributory negligence on the part of Myers, and then in another paragraph set out fully the issues which had been tried in the suit of Myers' administratrix against his father, and then pleaded the judgment in favor of his father on those issues as a bar to the instant suit. The administratrix demurred to this last plea. Her demurrer being overruled and she declining to plead further, her petition was dismissed, and from that judgment this appeal is prosecuted.

The parties hereto are in accord on the proposition that the family purpose doctrine rests in this state on the principle of "master and servant" or that of "principal and agent." Stowe v. Morris, 147 Ky. 386, 144 S.W. 52, 39 L. R. A. (N. S.) 224. The question then presented for decision is whether a judgment in favor of a master or principal in a suit brought for the alleged negligence of the servant or agent acting within the scope of his employment or agency inures to the benefit of that servant or agent when later sued by the same plaintiff for the same negligence.

It is the general rule that no person shall be affected by any judicial investigation to which he was not a party, unless his relation to some of the parties was such as to make him responsible for the final result of the litigation. Hence it is that, as a general rule, an adjudication takes effect only between those who are parties or privies to the judgment and that it gives no rights to or against third parties. Freeman on Judgments (5th Ed.) § 407. The rule thus stated is but a general one to which there are many exceptions, as pointed out by Freeman in section 409 of his work, supra. As Clancy Brown was not a party to the suit of Myers' administratrix against his father, the judgment in that suit cannot affect him favorably or adversely unless it be held that under facts as here presented Clancy Brown was in privity with his father or this case comes within one of the exceptions to the general rule supra. That they were not in privity is clear, since, as Freeman, in section 469 of his work points out: "Agents and principals, including, of course, masters and servants, do not, as such, have any mutual or successive relationships to rights of property. They are not in privity with each other." The question then on which the appeal is presented turns on whether the case comes within one of the exceptions to the general rule as to whom judgments affect. Speaking to the question when principals and agents and masters and servants are affected by judgments obtained by or against the other, Freeman, in section 469 of his work, says:

"Consequently the principal or master is not bound by the judgment obtained in an action by or against the agent or servant, and vice versa, unless he was a party or privy thereto by having authorized or actually and openly prosecuted or defended the action, or by having been notified and given an opportunity to defend under circumstances requiring him to do so, as in case of actions against the agent for possession of his principal's property, or under other circumstances requiring one to indemnify the other, or unless one is claiming through or under the other so as to create a privity

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