Owens v. Kuro, 35238

CourtUnited States State Supreme Court of Washington
Citation56 Wn.2d 564,354 P.2d 696
Docket NumberNo. 35238,35238
PartiesWalter OWENS and Harry Newman, Appellants, v. Richard KURO and JoAnne Kuro, his wife, Respondents. Jacqueline K. FUGATE, individually and as Administratrix of the Estate of Raymond Fugate, Deceased, Respondent, v. Harry H. NEWMAN and Walter Owens, Appellants.
Decision Date04 August 1960

Lycette, Diamond & Sylvester, Martin L. Wolf, Seattle, for appellants.

Moschetto & Alfieri, Seattle, for Fugate.

McCutcheon, Soderland & Wells, Seattle, for Kuro.

FOSTER, Judge.

Appellant Owens was injured while riding in his own northbound automobile when his driver, appellant Newman, attempted a left turn in a light-controlled intersection. Owens' car collided with respondents Kuros' southbound car in which respondents JoAnne Kuro, Jacqueline Fugate and her husband, now deceased, were passengers.

Appellants Owens and Newman sued respondents Kuro, who cross-complained. Respondent Fugate, individually and as her husband's personal representative, sued appellants Owens and Newman, who, likewise, cross-complained. Negligence was the gravamen of all actions. The cases were all consolidated.

Respondents Kuro and Fugate moved for summary judgment urging that appellants Owens and Newman were negligent as a matter of law. At the pretrial conference, the court decided there was no genuine dispute respecting the negligence of Owens and Newman, and that they were negligent as a matter of law. Their complaint against the Kuros and cross-complaint against respondent Fugate were ordered dismissed. The pretrial order (mislabeled 'Order Granting Summary Judgment') held appellants negligent as a matter of law and limited the trial to the issue of respondents' alleged contributory negligence and damages.

Respondent Mrs. Fugate, the passenger, had a verdict for twelve thousand five hundred dollars, upon which judgment was entered. A mistrial resulted in the action between respondents Kuro and appellants because the jury disagreed. Appellants' motion for new trial in both actions was denied, and this appeal followed.

Error is assigned to the pretrial order limiting the issues to be tried (mislabeled 'Order Granting Summary Judgment') and orders directing the dismissal of the complaint of Owens and Newman against the Kuros and the cross-complaint against Mrs. Fugate. The basis of the assignments is that there was a genuine dispute of fact as to appellants' negligence.

Error is also assigned to instructions.

Respondents Kuro move to dismiss the appeal in their action against appellants because there is no final judgment.

Appeals may not be brought piecemeal unless clearly authorized by law. In Hontz v. White, 155 Wash.Dec. 495, 348 P.2d 420, there was an order dismissing plaintiff's complaint and finding plaintiff liable as a matter of law on the defendant's cross-complaint, but the question of damages remained for trial. We held that such an order is not a judgment but is interlocutory only, limiting the issues to be tried. See Maybury v. City of Seattle, 53 Wash.2d 716, 336 P.2d 878. It does not affect a substantial right since the action was not determined or discontinued. The stage for final judgment had not yet been reached. At any time before judgment, the order could be revised or changed. In Coffman v. Federal Laboratories, 3 Cir., 171 F.2d 94, 98, it was held:

'Subsection (d) [of Rule 56] simply provides for a method whereby the trial judge with the aid of counsel can point up the controverted issues. It is, moreover, similar to the pretrial procedure provided for in Rule 16 and the matters determined in the issues so framed are not foreclosed in the sense that the judge cannot alter his conclusions. The action of interpreting the orders, therefore, did not become final for the purposes of appeal and it did not have the effect of a final judgment. The court retained full power 'to make one complete adjudication on all aspects of the case when the proper time arrive[d].' That time was when the judgment in the whole proceeding was entered. Therefore, even if we accept the plaintiff's contention as to what was determined by the motion, the court was still free to alter its view as to interpretation of the orders at a later stage of the proceedings. * * *' Accord: Audi Vision, Inc. v. RCA Mfg. Co., 2 Cir., 136 F.2d 621, 147 A.L.R. 574.

In the Hontz case, supra, the issue of damages remained to be tried; there was no final judgment. The order was not appealable within the provisions of Rule on Appeal 14, RCW Vol. O.

We decline to review this interlocutory order prior to final judgment.

There remained for trial Kuros' contributory negligence and their damages, if any, proximately caused by appellants' negligence.

Although there was a trial on those issues, a mistrial resulted because the jury disagreed. There is no judgment. It is the same as if there had been no trial. This is an abortive appeal from a pretrial order narrowing the issues.

When there is a final judgment in the action between the appellants and respondents Kuro, the order of the trial court holding appellants negligent as a matter of law and limiting the issues for trial to the alleged contributory negligence of respondents Kuro and the amount of their damage, if any, may be reviewed. This aspect of the case is no different than if the court, at the conclusion of the appellants' case, had sustained a motion challenging the sufficiency of the evidence. Such action could be reviewed only by appeal from the final judgment. It is the same here. 1

Appellants argue, however, that the present appeal in the Kuros' case should not be dismissed because (1) this court's determination of the propriety of the pretrial order with respect to the companion Fugate case will be conclusive of the issue of appellants' negligence in subsequent proceedings in the Kuros' action; and because (2) unless objection to the jury instructions is taken at this time with respect to the Kuros' action, such instructions would become the law of the case on retrial, foreclosing any right to test their correctness.

A judgment is not res judicata nor is one collaterally estopped by judgment in a later case if there is no identity or privity of parties in the same antagonistic relation as in the decided action. Riblet v. Ideal Cement Co., 154 Wash.Dec. 960, 345 P.2d 173; Rufener v. Scott, 46 Wash.2d 240, 280 P.2d 253. An estoppel must be mutual and cannot apply for or against a stranger to a judgment since a stranger's rights cannot be determined in his absence from the controversy. In State ex rel. First Nat. Bank of Central City, Colo, v. Hastings, 120 Wash. 283, 207 P. 23, 33, this court approved the statement of 23 Cyc. 1238:

"It is a rule that estoppels must be mutual; and therefore a party will not be concluded, against his contention, by a former judgment, unless he could have used it as a protection, or as the foundation of a claim, had the judgment been the other way; and conversely no person can claim the benefit of a judgment as an estoppel upon his adversary unless he would have been prejudiced by a contrary decision of the case."

This problem was discussed with exceptional clarity by Presiding Judge Rentto in Sodak Distributing Co. v. Wayne, S.D 1958, 93 N.W.2d 791, 795, as follows:

'Privity does not arise from the mere fact that persons as litigants are interested in the same question or in proving or disproving the same state of facts. Privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject matter of the litigation, and the rule is construed strictly to mean parties claiming under the same title. It denotes mutual or successive relationship to the same right or property. The binding effect of the adjudication flows from the fact that when the successor acquires an interest in the right it is then affected by the adjudication in the hands of the former owner. 50 C.J.S. Judgments § 788; 30A Am.Jur., Judgments, § 399. * * *'

There was manifestly no privity between the Fugates and the Kuros. The Fugates were merely passengers in the car owned and operated by Mr. Kuro. Their right of action is not derived from Kuros, nor was there any agency or contractual relationship between them. Mutuality of estoppel in the action between appellants and the Kuros is totally lacking.

A judgment for the plaintiff in an action growing out of an accident is not conclusive as to issues of negligence or contributory negligence in a subsequent action, arising out of the same accident, by a different plaintiff not in privity with plaintiff in the prior action against the same defendant. 2 The New York court of appeals correctly stated the controlling rule of law in Elder v. New York & Pennsylvania Motor Express, Inc., 284 N.Y. 350, 31 N.E.2d 188, 189, 133 A.L.R. 176, in the following words:

'If, as urged by respondent, we * * * permit a reliance upon a judgment as res judicata, where identical issues of liability upon a given set of facts are pur at issue in two successive suits, and where a full and complete trial of those issues has been had, and there are no circumstances of record in the second suit which might reasonably justify a court in reaching a result contrary to the prior decision, then it would seem that we would eliminate entirely the requirements of mutuality of estoppel and of privity. In so doing it is submitted that this would overturn fundamental conceptions and overrule authorities. * * *'

Very recently, the California district court of appeal in Nevarov v. Caldwell, 161 Cal.App.2d 762, 327 P.2d 111, 119, was obliged to decide whether or not a judgment for a plaintiff who claimed damages for injuries in an automobile accident was conclusive on the issue of negligence or contributory negligence in a subsequent action arising out of the same accident but brought by a different plaintiff against the same defendant. The result reached by that cour...

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