Queen City Coach Co. v. Burrell

Decision Date04 February 1955
Docket NumberNo. 529,529
Citation85 S.E.2d 688,241 N.C. 432
PartiesQUEEN CITY COACH COMPANY, v. Frank BURRELL, d/b/a Burrell Bakery, and Middiesex Mutual Fire Insurance Company.
CourtNorth Carolina Supreme Court

John F. Ray and Shearon Harris, Charlotte, for plaintiff, appellee.

Brown & Mauney, Albemarle, Helms & Mulliss, James B. McMillan, Charlotte, and John D. Hicks, Charlotte, for Defendants, Appellants.

PARKER, Justice.

The defendants assign as error the overruling of the plea in bar.

Plaintiff's bus at the time of the collision was operated by J. J. Canipe, the plaintiff's employee, in furtherance of plaintiff's business. Canipe brought a suit against the defendant Burrell, defendant in this action, and his truck driver, for personal injuries. The case was tried in Burke County Superior Court, and resulted in a verdict that Canipe was not injured by the negligence of the defendants. Final judgment was entered upon the verdict. Canipe did not appeal, and the time for appealinghas expired.

The defendants contend that the judgment in Canipe's action in Burke County is res judicata as to plaintiff's action here for damages to its bus in the same collision.

The doctrine of res judicata is a principle of universal jurisprudence, forming a part of the legal systems of all civilized nations as an obvious rule of expediency, justice and public tranquility. Evers v. Williams, 43 Ohio App. 555, 184 N.E. 19. That principle is concisely stated in 30 Am.Jur., Judgments, p. 908: 'Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.'

This Court said in Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570, 573; 'Generally to constitute a judgment an estoppel there must be identity of parties, of subject matter and of issues. Hardison v. Everett, 192 N.C. 371, 135 S.E. 288. It is a principle of elementary law that the estoppel of a judgment must be mutual, and 'ordinarily, the rule is that only parties and privies are bound by a judgment'. Rabil v. Farris, 213 N.C. 414, 196 S.E. 321, 322, 116 A.L.R. 1083. When used with respect to estoppel by judgment, 'the term 'privity' denotes mutual or successive relationship to the same rights of property'. Greenleaf on Evidence, Redfield Ed., Vol. 1, Section 189, p. 216.'

'And in the case of McMullin v. Brown, 2 Hill Eq. 457, the trial Judge whose decree was affirmed said: 'And I understand by the term privy, when applied to a judgment or decree, one whose interest has been legally represented at the trial.' ' First Nat. Bank of Greenville v. United States Fidelity & Guaranty Co., 207 S.C. 15, 35 S.E.2d 47, 58, 162 A.L.R. 1003. To the same effect see: 50 C.J.S., Judgments, § 788, p. 325; 30 Am.Jur., Judgments, p. 957.

'* * * 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 * * *. ' 50 C.J.S., Judgments, § 765, p. 293; Leary v. Virginia-Carolina Joint Stock Land Bank, supra; Meacham v. Larus & Bros. Co., 212 N.C. 646, 194 S.E. 99.

To the rule that a judgment ordinarily binds only parties and privies there is an exception 'in favor of the master whose liability is purely derivative and dependent entirely upon the doctrine of respondeat superior. ' Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 369, 141 A.L.R. 1164; Leary v. Virginia-Carolina Joint Stock Land Bank, supra; Good Health Dairy Products Corporation of Rochester, Inc., v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401, Annotation p. 404.

'The rule appears to be quite well established that a judgment for the defendant in an action growing out of an accident is not res judicata, or conclusive, as to issues of negligence and contributory negligence, in a subsequent action based on the same accident and brought against the same defendant by a different plaintiff. ' Annotation 133 A.L.R. p. 185 IIIa. See also: Meacham v. Larus & Bros. Co., supra; Rabil v. Farris, 213 N.C. 414, 196 S.E. 321, 116 A.L.R. 1083 (Adverse judgment against minor in action by minor, brought by father as next friend, held not to bar action by father to recover for loss of services of minor).

The great weight of authority seems to be that a judgment for the plaintiff in an action growing out of an accident is not res judicata, or conclusive as to issues of negligence or contributory negligence, in a subsequent action growing out of the same accident by a different plaintiff against the same defendant. Tarkington v. Rock Hill Printing & Finishing Co. (Dunston v. Rock Hill Printing & Finishing Co.), 230 N.C. 354, 53 S.E.2d 269; Annotation 133 A.L.R. p. 185 IIIb.

'It is well established that an adjudication unfavorable to a wife in an action by her for personal injuries is not res judicata, or conclusive, as to negligence or contributory negligence, in an action by her husband for loss of services or consortium because of such injuries, there being no privity between the respective plaintiffs.' 133 A.L.R. 199, where cases are cited.

The only evidence in the Record of the trial of Canipe's action in Burke County is the Complaint, Answer and Judgment. There is no allegation in the plea in bar that plaintiff here had anything to do with Canipe's case in Burke County, nor any evidence to that effect. It is true that one of plaintiff's lawyers here represented Canipe in his case in Burke County. However, that mere fact is no evidence that this lawyer was representing plaintiff here in the trial of Canipe's case. 'The relation of employer and employee, in and of itself, does not confer upon the employer any power to represent or to bind the employee in litigation. ' Pesce v. Brecher, 302 Mass. 211, 19 N.E.2d 36, 37.

It is elementary and fundamental that every person is entitled to his day in court to assert his own rights or to defend against their infringement. The parties are not identical. The present plaintiff was not a party to Canipe's action in Burke County. It had no control over the conduct of Canipe's trial; it could not cross-examine opposing witnesses, or offer witnesses of its own choice. The alleged rights of Queen City Coach Company and J. J. Canipe were entirely separate and distinct. Queen City Coach Company's cause of action is for property damage; Canipe's for personal injuries. Neither could assert them in whole or in part for or in the name of the other. Meacham v. Larus & Bros. Co., supra; Annotation 133 A.L.R. p. 185a; G.S. § 1-57, 'Action must be prosecuted in the name of the real party in interest * * *.'

The exact question raised by the plea in bar does not seem to have been presented to this Court before for decision. Counsel for the parties in their briefs have cited no case presenting the same or substantially the same facts, and no text writer discussing the exact question.

Similar facts to the case here were presented in Gentry v. Farruggia, 132 W.Va. 809, 53 S.E.2d 741, 742. In that case Chester Gentry sued Charles Farruggia to recover damages for personal injuries suffered by Gentry when a taxicab owned by Joe Bengey and driven by Gentry collided with a truck owned and operated by Farruggia. Farruggia filed a special plea alleging that at the May Term 1948 of the Circuit Court of Raleigh County, a verdict was returned and judgment entered in his favor in an action brought by Joe Bengey against him, in which Bengey sought to recover for property damage to the vehicle owned by him, and damaged in the same collision. The plea alleged that Gentry, as the agent, servant and employee of Joe Bengey, was driving the taxicab at the time and place of the same collision alleged by Gentry to have given rise to his right of action and alleged by Bengey in the former action as ground for his recovery. The Circuit Court sustained the defendant's plea of res judicata, and certified to the Supreme Court of Appeals this question: "Is the final judgment in favor of the defendant in the case of Joe Bengey v. Charles Farruggia heretofore rendered in the Circuit Court of Raleigh County a bar to the right of the plaintiff in this case to maintain this action?' ' The Supreme Court of Appeals answered the question No, and reversed the order of the Circuit Court. The rationale of the Court is: the relationship between Gentry and Bengey does not create privity of interest; and second 'that the plea fails because the alleged circumstances preclude the idea of mutuality which is a necessary element of the doctrine sought to be applied'; that plaintiff would not be entitled to a judgment based upon the mere proof of a recovery by Bengey in his action, if he had recovered; and that "Both litigants must be alike concluded, or the proceeding can not be set up as conclusive upon either.''

This question was presented for decision in Philadelphia Auburn-Cord Co. v. Shockcor, 133 Pa.Super. 138, 2 A.2d 501: "Does a judgment against the president of a corporation individually, in his action for personal injuries, bar a subsequent action by the corporation for the property damage it sustained in the same accident?' ' In the municipal court of Philadelphia County there had been a judgment on a verdict for plaintiff for the sum of $925.23. Defendant appealed. The Court said in a Per Curiam opinion: 'The case is ruled in principle against the appellant by the decision of the Supreme Court in Woodburn v. Pennsylvania Railroad Co., 294 Pa. 174, 144 A. 93. The court, in a per curiam opinion, there said: 'Though the same defendant figures in both cases, yet, since the record tendered as evidence involved an issue pending between a plaintiff other than the one now at bar, the mere fact that the...

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