Richardson v. Erwin
| Citation | 174 Kan. 314,255 P.2d 641 |
| Decision Date | 11 April 1953 |
| Docket Number | Nos. 38884-38886,s. 38884-38886 |
| Parties | RICHARDSON v. ERWIN (two cases). BLEVINS v. ERWIN. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. In an action for wrongful death against the estate of the deceased driver of an attomobile a verdict and judgment were rendered for defendant exonerating such deceased driver of negligence in the collision. In a subsequent action for wrongful death by the same plaintiff against the father of such deceased driver, in his individual capacity, based upon the alleged negligence of the son and of the father in knowingly permitting his son, who was well known by him to be an incompetent, careless and reckless driver, to drive his, the father's, automobile, defendant father alleged in his answer the judgment in the prior action between plaintiff and the deceased son's estate as a bar to such subsequent action. On motion of plaintiff these allegations were stricken. Held: In such a case defendant father's liability is completely dependent upon the establishment of actionable negligence on the part of the son, and, as the son had already been absolved of negligence by the judgment in the former action brought by the same plaintiff, defendant father is entitled to plead such former judgment as a bar to the subsequent action, and it was error for the court to strike such allegations from the answer.
2. In another action against the father, similar to the one described in the first paragraph of this syllabus, brought by a different plaintiff, to recover for personal injuries sustained in the automobile collision, the judgment in favor of defendant estate of the son in the former action brought by a different plaintiff is not a bar to the bringing of the action for personal injuries, and it was not error for the court to strike from the answer those allegations setting up such former judgment.
Elmer W. Columbia, of Parsons, argued the cause, and John B. Markham and Herman W. Smith, Jr., both of Parsons, were with him on the briefs, for appellant.
A. L. Foster, of Parsons, and Sylvan Bruner, L. M. Resler, Morris Matuska and Don Musser, all of Pittsburg, were on the briefs for appellees.
These consolidated cases are the third chapter in litigation arising out of an automobile collision, In re Estate of Erwin, 167 Kan. 316, 205 P.2d 925, and In re Estate of Erwin, 170 Kan. 728, 228 P.2d 739, and are appeals from orders striking portions of the answers.
Noel Erwin was the driver of one car, and Leon Richardson was the driver of the other vehicle. Roy Lee Blevins and Lester Blevins were riding in the car driven by Leon. Noel, Leon and Roy Lee were killed, and Lester was injured.
The administrator of the estate of Leon filed two actions for wrongful death, one against the estate of Noel and one against Orda Erwin, father of Noel, in his individual capacity. This second-mentioned action is case No. 38,884, here involved.
The administratrix of the estate of Roy Lee likewise filed two actions for wrongful death, one against the estate of Noel and the other against Orda Erwin, father of Noel, in his individual capacity. This lastmentioned action is case No. 38,885, here involved.
Lester, by and through his natural guardian and next friend, also filed two actions for his personal injuries, one being against the estate of Noel and the other against Orda Erwin, father of Noel, in his individual capacity. This last-mentioned action is case No. 38,886, involved herein.
All six actions were filed in the district court of Labette County.
The trial of the action by the administrator of Leon's estate against Noel's estate resulted in a verdict and judgment for defendant, exonerating Noel of negligence.
The trial of the action by the administratrix of Roy Lee's estate against Noel's estate also resulted in a verdict and judgment for defendant, exonerating Noel of negligence. The judgment in that action was appealed and was affirmed in In re Estate of Erwin, 170 Kan. 728, 228 P.2d 739.
The action by Lester against the estate of Noel for his personal injuries has not been tried.
We proceed now to a discussion of case No. 38,884, which, as heretofore stated, is the action by the administrator of Leon's estate against the father of Noel, in his individual capacity. The petition alleges the death of plaintiff's intestate was caused and occasioned by the negligence of defendant father and by one or all of seven specific acts of negligence (they being pleaded in detail) on the part of Noel, the driver. The negligence of defendant father is alleged to consist of his permitting his son Noel, whom the father knew to be an incompetent, careless and reckless driver, to drive his, the father's, automobile.
The answer, after denying generally all allegations of negligence, alleges, the outcome and result of the trial of plaintiff's action against Noel's estate, in which Noel was exonerated of all negligene; the outcome and result of the trial in the action by the administratrix of Roy Lee's estate against Noel's estate, in which Noel was exonerated of negligence; and the affirmance of such judgment by this court. The answer further alleges that as any and all liability on the part of defendant father is completely dependent upon the establishment of negligence on the part of Noel, and that as that issue has already been adjudicated and determined in favor of Noel, the plaintiff is estopped from bringing the instant action against the father.
With respect to case No. 38,885, the pleadings and issues are identical, with the exception of the difference in party plaintiff.
The same is also true of the pleadings and issues in case No. 38,886, except for the difference in party plaintiff and the fact the action is one for personal injuries rather than for wrongful death.
On motion of the plaintiff in each case all allegations in the respective answers concerning the result of the two actions previously tried, and the fact of their being a bar to the instant actions, were...
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...to a subsequent action if the liability of that person is dependent upon the liability in the first case. See, e.g., Richardson v. Erwin, 174 Kan. 314, 255 P.2d 641 (1953) (plaintiff lost suit against driver, then sued driver's father in second case, for negligent entrustment; second suit b......
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