Nevarov v. Caldwell

• Decision Date: 02 July 1958
• Citation: 327 P.2d 111,161 Cal.App.2d 762
• Court: California Court of Appeals Court of Appeals
• Parties: John W. NEVAROV et al., Plaintiffs, v. Glenn E. CALDWELL et al., Defendants. John W. NEVAROV and Anna Nevarov, Appellants, v. Glenn E. CALDWELL, Respondent. Civ. 22950.

Page 111

327 P.2d 111

161 Cal.App.2d 762

John W. NEVAROV et al., Plaintiffs, v. Glenn E. CALDWELL et al., Defendants.

John W. NEVAROV and Anna Nevarov, Appellants, v. Glenn E. CALDWELL, Respondent.

Civ. 22950.

District Court of Appeal, Second District, Division 2, California.

July 2, 1958.

Hearing Denied Aug. 28, 1958.

Franklin L. Knox, Jr., and George O. West, Los Angeles, for appellants.

Arthur M. Reilly, Los Angeles, for respondent.

ASHBURN, Justice.

Plaintiffs Nevarov appeal from judgment upon verdict for defendant Caldwell in a personal injury action, urging errors of law as the basis for reversal. The accident occurred on the Ridge Route, a four-lane highway, running generally north and south and having two lanes for southbound traffic and two for northbound traffic. Three southbound cars (those of Odisio, Caldwell and Nevarov), and one northbound car (of Bissiri), were involved in a series of impacts. First the Odisio car, in the first or outside southbound lane, swerved, whirled around and came to rest facing to the north, the direction opposite to the one in which it had been traveling; however, some of the witnesses say it was facing west when it came to rest. Defendant Caldwell's vehicle hit the right side of Odisio's; also hit the rear end of the Nevarov automobile; both Caldwell and Nevarov crossed the double white line and Nevarov had a collision with Bissiri's northbound car in the center northbound lane; Caldwell stopped just north of Nevarov. Out of a group of claims and cross-claims emerges the action of John W. Nevarov and his wife Anna Nevarov against Caldwell. The appeal is from the judgment rendered in a second trial of the issues raised between these parties.

At the first trial James Nevarov, a minor, was a co-plaintiff with his parents, John and Anna. No claim of contributory negligence was made against him and judgment went in his favor but against his parents. James' judgment became final and was satisfied. A new trial was granted the parents with no limitation upon the issues to be tried.

At the second trial, and here, the parents claim that the judgment in favor of James establishes conclusively in their favor the issue of negligence on the part of defendant Caldwell. They rely upon Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892; French v. Rishell, 40 Cal.2d 477, 254 P.2d 26, and Garcia v. Garcia, 148 Cal.App.2d 147, 306 P.2d 80, to support the argument that the judgment against Caldwell in James' case is admissible and conclusive against Caldwell upon the issue of his negligence because he was a party to James' action and mutuality is no longer of the essence of res judicata in this state. On this basis appellants urge that it was prejudicial error to submit to the jury the question of Caldwell's negligence and to fail to instruct them that that issue was established against him. Respondent makes a vigorous argument that the Bernhard case is not here applicable. In any event that decision plainly goes no further than to establish negligence of defendant (if it goes that far) and cannot have any bearing upon the issue of John Nevarov's contributory negligence, an issue here present but absent from James' case.

The court refused plaintiffs' request for an instruction that defendant was negligent and his negligence the proximate cause of the accident as a matter of law; it also left to the jury over plaintiffs' objection the solution of those questions as matters of fact. In order to sustain the appeal counsel makes the further contention that plaintiffs as a matter of law were free from contributory negligence and that the court erroneously left this issue to the jury as one of fact.

If the Bernhard doctrine is here applicable, plaintiffs were entitled to the requested instruction (for which evidentiary basis had been laid); its refusal would be error; the further question would then arise whether it resulted in a miscarriage of justice.

Bernhard v. Bank of America, supra, 19 Cal.2d 807, 122 P.2d 892, broadly and definitely holds that mutuality of estoppel is not essential to application of res judicata either as a bar or in its other aspect of collateral estoppel. At page 812 of 19 Cal.2d, at page 894 of 122 P.2d it is said: 'The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. [Citations.] He is bound by that litigation only if he has been a party thereto or in privity with a party thereto. Ibid. There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.

'No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous acton should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend.' At page 813 of 19 Cal.2d, at page 895 of 122 P.2d: 'In the present case, therefore, the defendant is not precluded by lack of privity or of mutuality of estoppel from asserting the plea of res judicata against the plaintiff.' In that instance Mrs. Sather authorized one Cook to draw upon her account in Security-First National Bank. Cook, without authority, opened an account with defendant's predecessor bank in the name of 'Clara Sather by Charles O. Cook.' Gradually her money was withdrawn from the Security account, redeposited in the other one, then transferred into a third account in defendant Bank standing in the name of Cook and his wife. After Mrs. Sather died Cook became executor, later resigned and presented his account which made no mention of the money in question. Helen Bernhard, and other beneficiaries of Mrs. Sather's will, objected to the accounting because it did not include that money; the court held after a hearing that Mrs. Sather had made a gift of the disputed funds to Cook during her lifetime. Bernhard was later appointed administratrix with the will annexed and brought an action against the Bank of America to recover the deposited money upon the ground that it was indebted to the estate in that amount because the deposit was paid out without any authorization from Mrs. Sather. The Supreme Court, affirming a judgment for defendant, found there was privity between plaintiff, acting as administratrix, and the objectors in the probate proceeding and then disposed of the question of mutuality in the language above quoted. The question of the application of that case at bar must be examined in the light of the exact situation existing in the instant action.

Unquestionably the negligence of defendant Caldwell which caused or contributed to James Nevarov's injuries was identical with the negligence which his parents assert against defendant. In James' case it was not complicated by any claim of contributory negligence on his part and would fasten liability upon defendant though it operated only as a contributing proximate cause concurring with negligence upon the part of James' father, the appellant herein. With reference to the parents, however, defendant's negligence must have been the sole proximate cause of their injuries or defendant cannot be held liable. Thus his negligence takes on a different aspect when viewed by a jury in reference to the respective claims of James and his parents. And whether it would be fair to apply the Bernhard doctrine in the parents' case becomes a serious question. The judgment in favor of James was for $691.65; it was satisfied about 11 months after the parents had been granted a new trial upon their cause of action. If Bernhard is applicable to such a situation it would have been necessary for defendant to appeal from a judgment for an insignificant amount (compared to the claims of the parents) in order to keep the issue of his own negligence open for the second trial, to take an appeal which well might have been frivolous. Such a rule would be promotive of litigation, 'would tend to defeat rather than to promote the preventing vexatious litigation with its objective of attendant expense both to the parties and the public' (quoting Taylor v. Hawkinson, 47 Cal.2d 893, 897, 306 P.2d 797, 799). But this case should not be decided upon that narrow ground.

This action is part of a larger pattern which has developed in personal injury cases in Los Angeles County and probably elsewhere in the state. The attorney who has a difficult case or group of cases on his hands files in the municipal court an action for recovery from a single defendant for property damage or minor personal injuries in the expectation that liability will be easily and speedily established and the question of damages left as the only issue to be decided in the principal action or actions brought in the superior court because res judicata establishes defendant's liability. This strategy (quite legitimate if Bernhard, supra, has universal application) is applied to multiple injuries to different people arising from the same accident. This occurs repeatedly in situations developed by accidents such as the collision of two aeroplanes over the Grand Canyon; the injury to many passengers on the San Diego-Los Angeles line of a railroad where the train was wrecked and the enginer claimed a momentary blackout; the breaking of the St. Francis Dam many years ago, followed by a great number of claims against the City of Los Angeles; the collision between the Andrea Doria and the Stockholm off the New England Coast in recent years. As several commentators have pointed out, Bernhard, supra, if held applicable to such situations, means that a defendant who obtains a favorable judgment, or 10 of them, cannot use those judgments against other claimants because the want of mutuality would spell absence of due process if the judgments were pleadable in bar or estoppel. But the plaintiff in the...