Shelley v. Gipson

• Decision Date: 02 March 1966
• Parties: , 218 Tenn. 1 James M. SHELLEY, Plaintiff in Error, v. John L. GIPSON and Richard H. Gipson, Defendants in Error.
• Court: Tennessee Supreme Court

Page 709

400 S.W.2d 709

22 McCanless 1, 218 Tenn. 1

James M. SHELLEY, Plaintiff in Error, v. John L. GIPSON and Richard H. Gipson, Defendants in Error.

Supreme Court of Tennessee.

March 2, 1966.

Joe S. Bean, Winchester, Ben Kingree, III, Bobo, Tarpley & Kingree, Shelbyville, for plaintiff in error.

Clinton H. Swafford, Hayes & Swafford, Winchester, for defendants in error.

WHITE, Justice.

James M. Shelley has appealed from the action of the trial court in sustaining a plea in abatement to his suit for damages. The record shows that on August 3, 1962, Richard H. Gipson was driving an automobile owned by his father, John L. Gipson, when it collided with an automobile owned and operated by James M. Shelley. In this accident both parties were injured.

Richard H. Gipson and his father filed suits for damages against James M. Shelley in the Circuit Court of Franklin County, Tennessee, on August 9, 1962. On October 29, 1962, Shelley filed an independent action against both of the Gipsons. General issue pleas were filed on behalf of all the defendants in these three cases.

In order to develop the issues for decision here, we quote from a splendid memorandum and supplemental memorandum filed by the trial judge, in which he says that James M. Shelley was a rural mail carrier and at the time of the collision was engaged in delivering mail on the route assigned to him.

The United States District Attorney, acting under the authority of an amendment to Title 28 of the United States Code, Section 2679, passed September 21, 1961, procured the defendant (plaintiff here) James M. Shelley, to file a petition for removal of the cause against him to the Federal Court. The amending act of Congress provides that:

'The remedy by suit against the United States as provided by Section 1346(b) of this title for damage to property or for personal injury including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office of employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.'

The amending act further provides for the removal of such cause to the Federal Court and the proceedings to be followed effecting such removal; and that when removed the case shall proceed as a tort action against the United States.

The case was removed as aforesaid and Shelley signed the petition for removal prepared by the United States District Attorney. In regard to that removal Shelley said, in an affidavit appearing in the record before us, that at the time of the automobile accident on August 3, 1962, he was performing his duties as a postman for the United States Government and that because of this fact he was informed by his insurance carrier and the Government that the case would be removed to the United States District Court for the Eastern District of Tennessee, and he was instructed to sign a petition for removal of the same, which he did, as aforesaid, and that after the removal was accomplished the United States of America was substituted in his, Shelley's, place as party defendant.

The affidavit further provided that after removal of the cases to the federal court, the defense of the same was undertaken by the United States District Attorney for the Eastern District of Tennessee and that during the process of the defense of these suits, he had

* * * no opportunity to control the progress and defense of the same, to introduce or cross examine witness in my own behalf, to employ an attorney to represent my rights or to personally appeal from the judgment of the Federal Court which was entered April 3, 1964, said judgment dismissing the plaintiffs', Gipsons, suits against the United States of America; that I was informed at all times by the United States Attorney and my insurance carrier that the United States was under a legal duty to defend me and had exclusive control of the litigation; that my only participation in the Federal Court litigation was in the capacity as a witness for the United States of America; that the questions propounded to me were from the United States Attorney, and I had no control whatsoever over the scope of his examination.

Upon the hearing in the federal court of the two cases originally brought by the Gipsons against Shelley in which the United States of America was substituted as a defendant, the federal judge trying the case under the Federal Tort Claims Act found that the plaintiff, Richard H. Gipson, was guilty of proximate contributory negligence and, therefore, could not recover, and then went further and said:

The court finds and concludes that Mr. Shelley was guilty of negligence which was a proximate cause of the accident and resulting injuries to the plaintiffs, in that he did not bring his vehicle to a stop as quickly as a reasonably prudent person would have done under the same or similar circumstances.

Following this holding of the federal court, the Gipsons filed a plea of res judicata in the instant case, insisting that the finding of the federal court of proximate negligence on the part of the plaintiff in error barred his cause of action here. It will be remembered that the case originally commenced by Shelley was left pending in the Circuit Court for Franklin County, and following the action aforesaid, the defendants Gipson withdrew their plea of general issue and filed a plea of res judicata setting up the decision of the federal judge that Shelley was guilty of negligence proximately causing the accident. As we have said before, the plea was sustained and the case is before us on appeal from that order.

The issue here, stated simply, is the correctness of the decision sustaining the plea of res judicata. To determine this we have to consider whether Shelley should be collaterally estopped to try the issues again when he failed to intervene, as he could have, in the case tried in the federal court; and, next, whether he should be bound by the action of the federal judge in determining that he was guilty of proximate negligence as aforesaid when he was not a party to the case nor was such holding necessary to the judgment in that case.

Our research has failed to develop any case directly in point in Tennessee and there are only a few decisions shedding light on the matter from other jurisdictions.

Both briefs refer to Boring v. Miller, Tenn., 386 S.W.2d 521 (1965), which states the rule:

A judgment on the merits exhausts the cause of action on which it was based, and is an absolute bar to a subsequent suit between the same parties and their privies upon the same cause of action. (Citing cases) National Cordova Corp. v. City of Memphis, 214 Tenn. 371, 380 S.W.2d 793, 796.

In Cantrell v. Burnett & Henderson Co., 187 Tenn. 552, 556--557, 216 S.W.2d

307 (1948), the Court held that the former judgment also estops the parties and their privies in any other cause of action to relitigate any matter which was actually determined in the prior suit.

Privity is based on the relationship of two parties, for the purposes of res judicata, only as it pertains to the subject matter of the suits.

In a situation where a party is trying to bring suit against a servant after having been unsuccessful against the master on a vicarious liability claim, the servant is in privity with the master and he can properly plead res judicata against the unsuccessful plaintiff whose suit against the master had been dismissed. Caldwell v. Kelly, 202 Tenn. 104, 302 S.W.2d 815 (1957). In the instant case, however, the servant, Shelley, is not the defendant in the second suit, but the plaintiff suing the original plaintiff in the former suit. The significant difference, of course, is that here the postal employee is asserting his interest for damages which were immaterial to his master, the United States, in the former suit. The trial court held that privity existed between the United States Government and Shelley. We do not agree for the reasons appearing herein.

In Rice v. Ringsby Truck Lines, 302 F.2d 550 (7th Cir. 1962), decided under Illinois law, an employer was held liable in the former suit for the negligence of his employee. In the former suit also, the present defendant was an additional defendant, but was exonerated; the plaintiff in the former suit was not involved in the second suit. When the employee sued Ringsby Truck Lines in the second suit it was held that in spite of the fact that the employee's negligence was of necessity decided in the former suit, he could resist the plea of res judicata because:

He was not a party to that suit. He had no voice in the conduct of the case. He had no right to examine witnesses or to take other action in order to protect his interest. It is no answer that he might have petitioned to intervene in that suit. He already had his own suit pending.

This case cites no authority for its holding, but we do have a somewhat parallel fact situation in the case at bar. Shelley was not a party to this suit in the federal court. He had no voice in the conduct of the suit. He had no right to examine witnesses or to take other action in order to protect his interest. As said in that case, it is no answer to say that he might have petitioned to intervene in that suit. He already had his own suit pending in the Circuit Court for Franklin County.

There is another case which is well written and well documented with authority in which the United States Third Circuit Court of Appeals held that an employee might sue the former plaintiff who had recovered judgment against the employer based on the employee's negligence. The case is that of Makariw v. Rinard, 336 F.2d 333 (3rd Cir. 1964), decided under Pennsylvania law.

In the case of Pesce v. Brecher, 302 Mass. 211, 19 N.E.2d 36 (1939), in which facts similar to those appearing herein were under consideration,...