Nichols v. Yater
| Decision Date | 14 May 1970 |
| Docket Number | No. 969A167,No. 2,969A167,2 |
| Parties | Shirley NICHOLS, Appellant, v. Morris YATER, Appellee |
| Court | Indiana Appellate Court |
Paul H. Frazier, Indianapolis, for appellant.
Glenn E. Davis, Kitley, Schreckengast & Davis, Beech Grove, for appellee.
This appeal arose from the entry of a summary judgment in favor of appellee.
The facts material to our consideration are not in dispute and present the following situation. In September of 1966, appellant and appellee were involved in an automobile accident. Subsequently, on March 8, 1967, appellant filed two complaints--one for property damages, and one for personal injuries. The rhetorical paragraphs alleging negligence on the part of the defendant were exactly the same, and the only distinction between the two complaints were the injuries complained of and the damages sought. Each was assigned a separate cause number.
On March 28, 1967, answers in denial were filed in both causes.
In May of 1968, a jury trial was held on the complaint for property damages, and on May 29, 1968, the jury returned the following verdict:
'We, the jury, find for the defendant and against the plaintiff on the plaintiff's complaint.'
On October 21, 1968, the defendant-appellee filed a motion for summary judgment directed to the action for personal injuries, which is the subject of this appeal.
Appellee, in his brief in support of motion for summary judgment, argued that the determination on the issue of negligence in the first trial is res judicata as to the second action on the same issue.
The trial court agreed and, following arguments of counsel, summary judgment was entered in favor of the defendant-appellee. This appeal followed.
Appellant's sole assignment of error is the granting of appellee's motion for summary judgment by the trial court.
Appellant argues that a cause of action for property damages and a cause of action for personal injuries growing out of the same negligent act constitute two independent and separate causes, so that a trial on the merits of one will not bar a subsequent trial on the second. In support of this position, appellant cites Public Service Co. of Ind. v. Dalbey, 119 Ind.App. 405, 85 N.E.2d 368 (1949), (Transfer denied).
In Dalbey, following a gas explosion, appellee had recovered $1,000 from his insurer. He made an assignment to his insurer of his property damage claim and, subsequently, the insurer commenced an action to recover on this claim. In the meantime, the appellee commenced an action for his personal injuries. In view of this fact situation, the court, at 417 of 119 Ind.App., 373 of 85 N.E.2d, framed the issue as follows:
'The question presented here is, whether one who suffered both personal injuries and property damage by reason of a single negligent act, and who assigned his property damage claim against the tort-feasor to a third person who prosecutes an action thereon against the tort-feasor, can prosecute an action to recover damages for his personal injuries arising out of the same accident.
'Can we treat the property damage claim and the personal injury claim as separate causes of action?'
The court then answered its own question as follows:
'We think an injury to person and an injury to property, resulting from the same tortious act, gives rights to two causes of action, and that appellee, as a result of the personal injuries received and the damages done to the house and furnishings had two separate causes of action--one, for personal injuries and one for property damage.' Ibid at 420 of 119 Ind.App., 374 of 85 N.E.2d.
Left unanswered, however, is the question of the effect of a judgment on the merits in one of the 'two separate causes of action', on the same issue or issues in the second.
There are a number of reasons why the 'two causes of action' theory is valid. Several of these were noted by this court in the Dalbey case:
1946 Replacement. The statute of limitation for the filing of an action to personal property is 6 years. § 2--601 Burns' 1946 Replacement.
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