Pack v. McCoy

• Decision Date: 14 January 1960
• Docket Number: No. 315,315
• Citation: 251 N.C. 590,112 S.E.2d 118
• Parties: Gar Lee PACK v. Robert Cirow McCOY and Queen City Coach Company.
• Court: North Carolina Supreme Court

Page 118

112 S.E.2d 118

251 N.C. 590

Gar Lee PACK v. Robert Cirow McCOY and Queen City Coach Company.

No. 315

Supreme Court of North Carolina.

Jan. 14, 1960

Mashburn & Huff, by Joseph B. Huff, Marshall, for defendants, appellants.

Bruce J. Brown, Asheville, for plaintiff, appellee.

HIGGINS, Justice.

The plaintiff contends the plea of res judicata shows on its face that it is not a defense to the matters and things alleged in his complaint for that it fails to aver that he was served with summons, participated in the action, appeared or authorized any attorney to appear for him, had knowledge of the prior suit, or authorized anyone to consent to the judgment.

At this stage of the cause we are concerned with allegations only--not with proof. For the purposes of the motion to strike, we must accept as true the allegations of the further defense. Wachovia Bank & Trust Co. v. Currin, 244 N.C. 102, 92 S.E.2d 658. If the plaintiff's objections are well founded he will have opportunity to present them when the defendants offer evidence to support their plea. Or if, as he suggests, the record in the general county court does not speak the truth as to him, his remedy is pointed out in Stone v. Carolina Coach Co., 238 N.C. 662, 78 S.E.2d 605.

The plaintiff also contends the order striking the further defense should be sustained on the authority of Mercer v. Hilliard, 249 N.C. 725, 107 S.E.2d 554, and Penn Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E.2d 410, 414. In the Penn Dixie Lines case the defendant interposed the further defense that the plaintiff had participated with the defendant in an extrajudicial settlement of the claims by third parties growing out of the same accident. This Court said: 'The allegations relating to extrajudicial settlements of the plaintiff and the defendant * * * have no proper place in the answer * * *. Logic would ignore the facts of life if it accepted the plaintiff's participation in the extrajudicial settlement * * * as an implied admission of legal culpability on its part * * *'

In the Mercer case the defendant interposed the further defense that a Mrs. Strickland had instituted an action against both Mercer and Hilliard, alleging she had suffered property damage in the collision which resulted from the negligence of both. The cause was settled by payment of $165 to Mrs. Strickland. No pleadings were ever filed on behalf of either defendant. The superior court, on Mrs. Strickland's application, entered judgment of nonsuit, taxing her with the costs. In passing on the order to strike the further defense in the Mercer case, [249 N.C. 725, 107 S.E.2d 556] this Court said: 'The facts alleged by defendants do not constitute either an adjudication or an acknowledgement that negligence on the part of Mrs. Mercer proximately caused the collision between the Mercer and the Hilliard cars.' In Penn Dixie Lines, a court action was never instituted. In Mercer, action was instituted but judgment of nonsuit was taken by the plaintiff. In neither case was there an adjudication on the issues of negligence.

The Latin phrase, res judicata, comes to us from the civil law. It means the thing has been adjudicated; it has been determined by judgment; it has been settled by the court, etc. There may be an estoppel by conduct, but the plea of res judicata must necessarily be founded on an adjudication--a judgment on the merits. See Hayes v. Ricard, N.C., 112 S.E.2d 123.

The further defense in the case now before us is bottomed on these allegations: The plaintiff, Miss Gibbs, was injured by the joint and concurrent negligence of all the defendants, including the present plaintiff. A joint answer was filed by all defendants, denying negligence. By consent the court adjudged that the defendants pay to the plaintiff $1,050 'in full and final settlement of all matters involved in this action.' The defendants in the instant action have pleaded that judgment as a bar to the right of the plaintiff to recover. In a similar factual situation, this Court said: 'Unquestionably the judgment pleaded, as between the parties, would constitute res judicata and be regarded as conclusive as to all rights, questions and facts in issue in that action. * * * This would be true whether the judgment was by consent of the parties or based on the findings and verdict of a jury. * * * ' There is no doubt that a final judgment or decree necessarily affirming the existence of a fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them * * * in the same or any other court.' ' Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673, 675; Hayes v. Ricard, supra; Queen City Coach Co. v. Burrell, 241 N.C. 432, 85 S.E.2d 688.

The holding in the Lumberton Coach Co. case is founded on the premise that a judgment for the plaintiff against two or more defendants charged with joint and concurrent negligence establishes their negligence and may be pleaded in bar by one defendant against the other in a subsequent action between them based on the negligent acts at issue in the first cause. See also, Stone v. Carolina Coach Co., 238 N.C. 662, 78 S.E.2d 605. The decisions in Penn Dixie Lines v. Grannick, supra, and Mercer v. Hilliard, supra, are not in conflict for the reason that in neither case was there an adjudication on issues of negligence.

The case of Stanley v. Parker, 207 N.C. 159, 176 S.E. 279, 280, is readily distinguishable. In that case the Court said: 'A judgment against several defendants does not as a rule determine their rights as among themselves, unless their rights have been drawn in issue and determined in the action in which the judgment was rendered.' That action was in contract. It involved an accounting between the parties as to the amount each should pay on a judgment entered against both in a prior action.

In holding the plea in bar good in a tort case, however, our Court has proceeded on the theory that a judgment against all defendants who are jointly charged with actionable negligence necessarily establishes the negligence of all. Consequently neither can recover from the other in a subsequent action involving the same negligent acts. When both parties are at fault, neither can recover from the other.

It must be conceded, however, there is authority in conflict with the rule as stated in Lumberton Coach Co. v. Stone, supra, etc. The conflicting authorities hold that a judgment for the plaintiff in an action against two or more defendants is not res judicata as to the defendants' rights and liabilities among themselves, unless those rights and liabilities have been expressly put in issue in the prior action by cross or adversary pleadings. 101 A.L.R. 104; 142 A.L.R. 727; 152 A.L.R. 1066; 38A Am.Jur., 'Judgments,' § 41.

However, adhering to our rule, we conclude the trial court committed error in striking the further defense. It should be restored to the defendants' answer.

Reversed.

BOBBITT, Justice (dissenting).

Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673, which supports the present decision, is contrary to the weight of authority. 30A Am.Jur., Judgments § 411; 50 C.J.S. Judgments § 819; Annotations: 101 A.L.R. 104; 142 A.L.R. 727; 152 A.L.R. 1066; Byrum v. Ames and Webb, Inc., 1955, 196 Va. 597, 85 S.E.2d 364; Clark's Adm'x v. Rucker, Ky.1953, 258 S.W.2d 9; Casey v. Balunas, 1955, 19 Conn.Sup. 365, 113 A.2d 867; Kimmel v. Yankee Lines, 3 Cir., 1955, 224 F.2d 644.

In the cited Virginia case [196 Va. 579, 85 S.E.2d 367], the opinion states: 'The case of Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673, appears to be at odds with the general rule, * * *' In my opinion, our decision in Lumberton Coach Co. v. Stone, supra, is erroneous and should be overruled.

The rule supported by the weight of authority is illustrated in the Restatement of the Law of Judgments, § 82, as follows: 'A and B are driving automobiles, which collide. C, a passenger in B's car, sues A and B. Whether the judgment is in favor of or against C as to either or both A and B, the issues as to negligence or other element of the cause of action are not res judicata in a subsequent action by A against B for damage to his car.'

In the cited Kentucky case [Ky.1953, 258 S.E.2d 10], the opinion, citing authorities, states: 'The rules of res judicata are based upon an adversary system of procedure designed for the purpose of giving persons an opportunity to litigate claims against each other. As a consequence, persons who have not had an opportunity of litigating between themselves the correctness of a determination which is the basis of a judgment for or against them are not concluded by such a determination in a subsequent action between them. Unless they were adversaries in the action in which the judgment was entered, the judgment merely...