Schimke v. Earley

• Court: Ohio Supreme Court
• Writing for the Court: WEYGANDT; TAFT; COLLIER, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT
• Citation: Schimke v. Earley, 173 Ohio St. 521, 184 N.E.2d 209 (Ohio 1962)
• Decision Date: 11 July 1962
• Docket Number: No. 37309,37309
• Parties: , 20 O.O.2d 143 SCHIMKE, Adm'x, Appellant, v. EARLEY et al., Appellees.

Page 521

173 Ohio St. 521

184 N.E.2d 209, 20 O.O.2d 143

SCHIMKE, Adm'x, Appellant, v. EARLEY et al., Appellees.

No. 37309.

Supreme Court of Ohio.

July 11, 1962.

Syllabus by the Court

Material facts or questions which were in issue in a former suit and were therein judicially determined by a court of competent jurisdiction are conclusively settled by the judgment therein so far as concerns the parties to that action and persons in privity with them, and can not be again litigated in a future action between the same parties or their privies. (Quinn, Aud. v. State ex rel. Leroy, 118 Ohio St. 48, 160 N.E. 453, approved and followed.)

In the Court of Common Pleas the plaintiff administratrix filed two actions to recover for the wrongful death of her son resulting from a collision involving three motor vehicles on the evening of February 27, 1956.

In one case the defendants were the Standard Oil Company and the Kopp Clay Company, the owners of two trucks one of which struck the automobile in which the decedent was a passenger.

In the other case the defendants were the drivers of the two trucks.

In the case in which the truck owners were the defendants, the trial court directed a verdict in their favor.

In the instant case in which the truck drivers are the defendants, the trial court rendered a judgment in their favor on the basis of estoppel by reason of the previous judgment in favor of the truck owners in the case in which they were the defendants.

On appeals to the Court of Appeals on questions of law, that court affirmed the judgment in the one case in favor of driver Shupe but reversed the judgment in favor of driver Earley and remanded the cause to the Court of Common Pleas for trial against Earley alone. In the other case the judgment in favor of the truck owners was affirmed.

The one cause is in this court for a review by reason of the allowance of a motion to certify the record in the case involving the truck drivers alone.

In the case involving the truck owners, a motion to certify the record was overruled.

Charles E. Smart and Winford V. Weiford, Canton, for appellant.

Carson, Vogelgesang & Sheehan, Gary Banas, Canton, McAfee, Hanning, Newcomer & Hazlett and William K. Tell, Jr., Cleveland, for appellees.

WEYGANDT, Chief Justice.

As already noted, the collision involved three vehicles--a passenger automobile and two trucks.

The passenger automobile was being driven in a westerly direction on the highway. Both trucks were going east. Shupe was driving the truck owned by the Standard Oil Company. The truck driven by Earley was owned by the Kopp Clay Company, and it was proceeding behind the other truck. Earley decided to pass to the left of the Standard Oil Company truck driven by Shupe. As this was attempted the clay company truck collided with the passenger automobile going in the opposite direction, but the oil company truck was not hit.

The plaintiff alleged that both drivers were operating the trucks within the scope of their employment. The oil company admitted this as to its driver, Shupe, but the lower courts found no evidence of negligence on the part of Shupe or the oil company. This court concurs in this conclusion. Hence, the lower courts were not in error in rendering final judgment for the driver, Shupe, in this case.

This is in conformity with the following unanimous holding of this court in the first paragraph of the syllabus in the case of Quinn v. State ex rel. Leroy, 118 Ohio St. 48, 160 N.E. 453:

'Material facts or questions which were in issue in a former suit and were there judicially determined by a court of competent jurisdiction are conclusively settled by the judgment therein so far as concerns the parties to that action and persons in privity with them and cannot be again litigated in any future action between the same parties or privies, and this rule also applies not only to what was determined, but also as to every other question which might properly have been litigated in the case. Hixson v. Ogg, 53 Ohio St. 361, 42 N.E. 32, and Strangward v. American Brass Bedstead Co., 82 Ohio St. 121, 91 N.E. 988, followed and approved.'

However, the Court of Appeals reached a different conclusion concerning the other driver, Earley.

The reason for this was the fact that the truck driven by him was shown to be owned by two companies one of which was not a party to the action. The driver testified that at the time of the collision he was not then in the employ of the defendant Kopp Clay Company. Hence, there was no privity at that time between that company and the driver and the latter was not entitled to the benefit of the adjudication in the case against the company. The Court of Appeals was not in error in remanding the cause for trial against Earley.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

ZIMMERMAN, MATTHIAS, BELL, COLLIER and O'NEILL, JJ., concur.

TAFT, Judge (concurring).

The syllabus, which represents a quotation from the syllabus of Quinn, Aud. v. State ex rel. Leroy (1928), 118 Ohio St. 48, 160 N.E. 453, can apply to the facts of the instant case only if we conclude that a servant is 'in privity with' his employer so as to be bound by a judgment rendered in an action brought against the employer for damages claimed to have been caused by the negligence of the servant in operating a motor vehicle on the employer's business.

Admittedly, the servant, Shupe, was not a party to the action brought against his employer, Standard Oil. See French, Admr. v. Central Construction Co. (1907), 76 Ohio St. 509, 81 N.E. 751, 12 L.R.A.,N.S., 669 (holding that he would not be a proper party to such an action in this state). See also Losito v. Kruse, Jr. (1940), 136 Ohio St. 183, 187, 24 N.E.2d 705, 126 A.L.R. 1194.

Most of the cases hold that there is no such privity between a servant and his employer in such an instance. See annotations, 31 A.L.R. 194; 133 A.L.R. 181, 182, 196; 23 A.L.R.2d 710, 731; 30 A American Jurisprudence, 480, Section 429.

By basing our decision in the instant case upon the conclusion that there is such privity, we will establish a precedent...