Sisemore v. Neal

• Decision Date: 13 May 1963
• Docket Number: No. 5-2992,5-2992
• Citation: 236 Ark. 574,12 A.L.R.3d 929,367 S.W.2d 417
• Parties: , 12 A.L.R.3d 929 Paul SISEMORE, Appellant, v. Junior NEAL, Appellee.
• Court: Arkansas Supreme Court

Page 417

367 S.W.2d 417

236 Ark. 574, 12 A.L.R.3d 929

Paul SISEMORE, Appellant, v. Junior NEAL, Appellee.

No. 5-2992.

Supreme Court of Arkansas.

May 13, 1963.

Jeff Duty, Rogers, for appellant.

Dickson, Putman, Millwee & Davis, Fayetteville, for appellee.

HARRIS, Chief Justice.

This litigation presents solely a question of law. On April 7, 1959, appellant's wife, Mildred Sisemore, was involved in an automobile accident with a car driven by appellee, Junior Neal. On May 14, 1959, Mrs. Sisemore instituted suit against appellee in the Washington Circuit Court, alleging certain acts of negligence, and praying judgment for pain and suffering, loss of earnings, and medical bills in her own right. In July, 1960, the case was tried, and the jury rendered a verdict for appellee herein. No appeal was taken from this judgment.

On November 21, 1961, appellant, Paul Sisemore, filed the instant suit in his own right, against Neal, seeking to recover for loss of consortium, and medical and hospital expenses, this suit arising out of the same accident. Judgment was sought in the amount of $27,000.00. Neal answered, contending that any cause of action stated by appellant 'is barred by res judicata,' and subsequently filed his Request for Admissions of Fact which were in due time answered by appellant. ¹

Appellee then filed his motion for Summary Judgment as follows:

'That based on the pleadings in said case, on defendant's Request for Admissions of Fact, on plaintiff's Response to said Request for Admissions of Fact, and on the pleadings and judgment filed and rendered in Civil Case No. 3196 on file in the office of the Circuit Clerk of Washington County, Arkansas, and appearing of record in Volume 33 of the judgment records of said Circuit Clerk, there is no genuine issue as to any material fact that said defendant is entitled to judgment as a matter of law. All the foregoing pleadings, admissions and judgment entered in Case No. 3196 are made a part of this motion by reference.'

The court granted the motion, and entered its judgment dismissing Sisemore's complaint with prejudice. From such judgment, appellant brings this appeal.

Though a different type of action was involved, and the suit was heard in Chancery this court, in Fleming v. Cooper, 225 Ark. 634, 284 S.W.2d 857, 58 A.L.R.2d 694, quoted from 50 C.J.S. Judgments § 798, page 342, as stating the general and applicable rule:

'A wife will be concluded by a judgment in an action for or against her husband with respect to any right or interest which she claims through or under him; and so likewise will a husband be concluded by a judgment for or against the wife in respect of a right or interest which he claims through or under her.'

A similar situation presented itself in Tollett v. Mashburn, 183 F.Supp. 120 (U.S. District Court, W.D.Ark.). In that case, a husband sought recovery for medical expenses and loss of consortium as a result of injuries to his wife. Judge John E. Miller, in a persuasive opinion, noted that the wife was barred from recovering for her injuries by the statute of limitations, and then stated:

'Unless the defendants are liable to the plaintiff, Berthenia Tollett, they cannot be liable to her husband, Kelsie Tollett. Without doubt the claim of Berthenia Tollett is barred by the Statute of Limitations, and, since it is barred, the claims of Kelsie Tollett for damages, if any, arising from the assault and battery are likewise barred.'

The court then quoted from Desjourdy v. Mesrobian, 52 R.I. 146, 158 A. 719, as follows:

'The husband's right of action for the loss of services and expense in caring for his wife is concomitant with and dependent upon an actionable injury to her. To recover he must prove in the first instance all that his wife would have to prove in order...