Rd.Way Express Inc v. Mcbroom

• Decision Date: 05 December 1939
• Docket Number: No. 27646.,27646.
• Citation: 6 S.E.2d 460
• Parties: ROADWAY EXPRESS, Inc. v. McBROOM.
• Court: Georgia Court of Appeals

6 S.E.2d 460

ROADWAY EXPRESS, Inc.

v.McBROOM.

No. 27646.

Court of Appeals of Georgia,

Division No. 1.

Dec. 5, 1939.

Syllabus by the Court.

1. Where the liability, if any, of the master to a third person is purely derivative and dependent entirely upon the principle of respondeat superior, a judgment on the merits in favor of the agent or servant is res judicata in favor of the principal or master though he was not a party to the action. This rule is an exemplification of the broader rule by which one whose liability is wholly derivative may claim the benefit of a judgment in favor of the person from whom his liability is derived, if not based on grounds applicable only to the latter.

2. A plea of former adjudication, while it may be subject to special demurrer, is not subject to general demurrer or motion to strike because there is not attached to the plea a duly authenticated copy of the judgment and the proceedings on which such judgment is based. Such a defect may be reached only by special demurrer.

3. The fact that in proving the allegations of such plea it is necessary to have duly authenticated copies of the proceedings in the case or judgment which is alleged tobe res judicata, does not subject a plea which fails to have attached such judgment and proceedings to a motion to strike.

4. The court erred in striking the plea of former adjudication. The subsequent proceedings were nugatory.

Error from Superior Court, Whitfield County; J. H. Hawkins, Judge.

Suit by Charles McBroom against Roadway Express, Inc., and another, for injuries resulting from truck collision. To review a judgment for plaintiff, named defendant brings error.

Reversed.

Matthews, Owens & Maddox, of Rome, Hardin & McCamy, of Dalton, Finlay & Campbell, of Chattanooga, Tenn., and Haas, Gambrell & Gardner, of Atlanta, for plaintiff in error.

D. W. Mitchell, of Dalton, for defendant in error.

GUERRY, Judge.

Charles McBroom entered suit in Whitfield County, Georgia, against Roadway Express, Inc., and its indemnity insurance carrier because of the alleged negligence of the agent and driver of the truck of Roadway Express, Inc., one Walker, who, it is alleged, negligently drove the truck of Roadway Express Inc., into a truck being driven by the plaintiff and thereby caused certain personal injuries. In addition to its answer the defendant filed a plea of former adjudication in which it was alleged that Walker, the driver and agent of Roadway Express, Inc., whose alleged negligence is the basis of the plaintiff's action here, had, as a result of the collision of the said trucks, filed suit in Tennessee against the plaintiff in a named court of competent jurisdiction to recover for injuries that he, Walker, had sustained in damages to his truck, it being the same truck, growing out of the same transaction or collision referred to in the present action, and that in that suit the plaintiff here was the defendant, and Walker had recovered against him a judgment, which had been affirmed by a reviewing court in Tennessee, and that such judgment settled "all issues as between the parties to this case." This amendment was allowed, but on the trial of the case the trial judge sustained a motion to strike such amendment. The defendant excepted pendente lite to such ruling and as this question is determinative of the action we will consider it first.

We may say in the beginning that under the full faith and credit clause of the constitution (U.S.C.A.Const. art. 4, § 1; Code, § 1-401; McHenry v. McHenry, 152 Ga. 105, 108 S.E. 522; Latine v. Clements, 3 Ga. 426; Tarver v. Rankin, 3 Ga. 210; Sharman v. Morton, 31 Ga. 34; Thomas v. Morrisett, 76 Ga. 384) a judgment of a court of competent jurisdiction in Tennessee, if properly proved, may have the effect of former adjudication in matters pending in the courts of this State. Code, §§ 38-627, 102-110, 110-501.

The question here presented is whether a plea which sets up that Walker, the agent and driver for the defendant, had successfully prosecuted his action in Tennessee arising against the plaintiff in the present action by reason of the same collision of trucks and the same transaction, is a plea of former adjudication in the present action. The law as laid down in Code, § 110-501, is that "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." May a judgment in favor of Walker against the plaintiff here, growing out of the same collision of trucks, be pleaded in a suit filed by such plaintiff against Walker's employer, who is charged only with negligence alleged to have been committed by-Walker in the operation of the truck at that time? Strictly speaking, the parties are not the same. Walker was the plaintiff in the former action, but he is not the defendant in the present action. Issues in a second suit are concluded as between parties and their privies if they were made in the first suit or if, under the rules of pleading and evidence, they could have been put in issue. McDade v. Burch, 7 Ga. 559, 563, 50 Am.Dec. 407; Watkins v. Lawton, 69 Ga. 671; Code, §§ 38-623, 110-501.

The Supreme Court in the case of Smith v. Gettinger, 3 Ga. 140, 142, has given the following definition of a privy. "Privies are all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denoting mutual or successive relationship to the same rights of property." We quote further: "This rule is founded upon the expediency and necessity that a limit should be prescribed to litigation, and that the same cause of action ought not to be brought twice to a final determination. 'Justice requires (says Mr. Greenleaf) that every cause be once fairly and impartially tried; but the public tranquility demands, that having been once so tried, all litigation of that question and between those parties, should be closed forever.' Persons occupying the relation of privies are concluded by the judgment, on the ground that they are identified in interest with the party."

The question as applied to facts such as are alleged in the present case has never been decided in Georgia so far as we have been able to discover. It has been repeatedly held that a verdict exonerating the servant in a joint action brought against the master and the servant for damages caused solely by the negligence of the servant requires a verdict for the master also. See the well-reasoned opinion by Judge Beck in Southern Railway Co. v. Harbin, 135 Ga. 122, 68 S.E. 1103, 30 L.R. A., N.S., 404, 21 Ann.Cas. 1011. The negligence of the master in such a case is entirely derivative from the negligence of the servant, or, as Judge Beck says, the negligence of the master is imputed under the doctrine of respondeat superior, the primary obligation for such negligence resting upon the servant, and when the master is required to respond in such damages he has an action over against his servant or employee. See also Salmon v. Southern Ry. Co., 137 Ga. 636, 73 S.E. 1062; Southern Ry. Co. v. Davenport, 39 Ga.App. 645, 148 S.E. 171; Southern Ry. Co. v. Smith, 55 Ga.App. 689, 191 S.E. 181.

Under the allegations of the petition in this case the negligence of Roadway Express, Inc., was derivative from the negligence of Walker, its agent and driver at the time, and its responsibility for such negligence is by reason of the doctrine of respondeat superior. In Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401, 403, it was said "Where the liability of a principal is derivative, a judgment on the merits in favor of the servant or agent from whom the liability is derived, may be set up as a defense by the principal, in an action to recover against him, although he was not a party to the other action." Under facts which are identical with the facts alleged in this case it was held in Byrne v. Hasher, 249 App.Div. 651, 291 N.Y.S. 510, that a plea of res adjudicata was available to the owner of the car whose liability was dependent on the proof of negligence of his agent, the agent himself having recovered from the parties who brought the action against his own employee. See also Central...