Smith v. Wood, 42603

• Decision Date: 17 February 1967
• Docket Number: No. 42603,No. 1,42603,1
• Citation: 154 S.E.2d 646,115 Ga.App. 265
• Parties: Bennie SMITH v. Marion B. WOOD et al
• Court: Georgia Court of Appeals

Page 646

154 S.E.2d 646

115 Ga.App. 265

Bennie SMITH v. Marion B. WOOD et al.

No. 42603.

Court of Appeals of Georgia, Division No. 1.

Feb. 17, 1967.

Syllabus by the Court

1. A plea of estoppel by judgment is available when there has been a former adjudication of the same issues by the parties or their privies, though not upon the same cause of action.

2. Pleas of res judicata or of estoppel by judgment are available in connection with negligence actions where the requirements of the pleas are made to appear.

3. (a) A plea of res judicata or of estoppel by judgment should have attached as an exhibit thereto all of the record in the prior action essential to show that the plea is meritorious, but absence of these exhibits is a matter for special demurrer.

(b) The plea must be supported by evidence; and if the plea is sufficient to withstand a general demurrer, it is error to dismiss it without affording opportunity to the pleader to support it. If the opportunity is afforded and no evidence is tendered, the plea should be dismissed.

4. (a) In determining whether parties other than those to the prior action are estopped by the judgment therein to prosecute the present action, it must be determined whether there was privity as to the judgment in the prior action-not as to the recovery sought in the present action.

(b) In this context privity is to be determined by whether parties to the present action had an interest in the recovery sought in the prior action and were thus represented by the parties thereto.

In November 1965 Mrs. Ethel Davis Wood and her husband, Marion Boyd Wood, while riding in his car with her as driver, had a wreck with an automobile driven by Bennie Smith. Both Mr. and Mrs. Wood received injuries, those of Mrs. Wood proving to be fatal in nature. Thereafter, Mr. Wood brought a common law action against Smith to recover, inter alia, the medical and hospital expenses incurred in connection with the treatment of his wife's injuries, and the funeral expenses. Upon a trial of the case a verdict was returned for the defendant.

Thereafter Mr. Wood, joined by his four children, brought a statutory action under the provisions of Code § 105-1306 (Lord Campbell's Act), as amended, to recover from Smith the full value of Mrs. Wood's life. Mr. Smith failed a plea in bar, alleging that in the former action brought by Mr. Wood a verdict and judgment adverse to him had been entered, that no appeal had been taken therefrom and that the time for appeal had expired. It was also alleged that the very same acts of negligence alleged and relied upon in the present suit were also alleged and relied upon in the former action.

Upon hearing a motion to dismiss in the nature of a general demurrer the plea in bar was dismissed, and defendant appeals.

Kenyon & Gunter, E. D. Kenyon, Gainesville, for appellant.

Ellard & Frankum, Stephen D. Frankum, Clarkesville, for appellees.

EBERHARDT, Judge.

1. This is not a plea of res judicata (though it springs from and is a part of that doctrine), for under that plea a former adjudication is a bar as to all matters placed in issue or which might have been placed in issue between the same parties, or their privies, upon the same cause of action. Rather, it is a plea of estoppel by judgment, sometimes referred to as 'collateral estoppel,' or as 'estoppel by verdict.' Under that branch of the doctrine the former adjudication is a bar if the same issues were litigated by the parties or their privies in the previous action, though it is not essential that it be upon the same cause of action. Hunter v. Davis, 19 Ga. 413; Bradley v. Johnson, 49 Ga. 412; Henderson v. Fox, 80 Ga. 479, 6 S.E. 164; Worth v. Carmichael, 114 Ga. 699, 40 S.E. 797; Draper v. Medlock, 122 Ga. 234, 50 S.E. 113, 69 L.R.A. 483; Goodwin v. Bowen, 184 Ga. 408, 191 S.E. 691; Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833; Phillips v. Hightower, 190 Ga. 785, 10 S.E.2d 854; Gunnin v. Carlile, 195 Ga. 861, 25 S.E.2d 652; Spence v. Erwin, 200 Ga. 672, 38 S.E.2d 394; Price v. Price, 205 Ga. 623, 54 S.E.2d 578; Capps v. Toccoa Falls Light & Power Co., 46 Ga.App. 268, 167 S.E. 530; Morris v. Georgia Power Co., 65 Ga.App. 180, 15 S.E.2d 730.

2. Although the plea of estoppel by judgment has not often been used in connection with negligence actions, it is available if the requirements of the plea are met. See and compare Berry v. Northeastern R.R., 72 Ga. 137(1); Georgia R. & Banking Co. v. Fitzgerald, 108 Ga. 507, 34 S.E. 316, 49 L.R.A. 175; Southern Bell Tel. &amp Tel. Co. v. Cassin, 111 Ga. 575, 588-591, 36 S.E. 881, 50 L.R.A. 694; Hooper v. Southern Ry. Co., 112 Ga. 96, 37 S.E. 165; Clark v. Southern Ry. Co., 20 Ga.App. 274, 92 S.E. 1020; Shipman v. Johnson, 89 Ga.App. 620, 624, 80 S.E.2d 717; Sayre v. Crews, 184 F.2d 723 (5th Cir.); Adriaanse v. United States, 184 F.2d 968 (2d Cir.), cert. den. 340 U.S. 932, 71 S.Ct. 495, 95 L.Ed. 673; Moran v. Lehman, 7 Misc.2d 994, 157 N.Y.S.2d 684; Stangle v. Chicago, R.I. & P.R.R. Co., 295 F.2d 789 (7th Cir.); Little v. Blue Goose Motor Coach Co., 346 Ill. 266, 178 N.E. 496; Franciscy v. Jordan, 43 Ill.App.2d 344, 193 N.E.2d 219; Queen City Coach Co. v. Burrell, 241 N.C. 432, 85 S.E.2d 688; Gentry v. Farruggia, 132 W.Va. 809, 53 S.E.2d 741; Gleaton v. Southern Ry. Co., 212 S.C. 186, 46 S.E.2d 879.

It is available when the present action is brought under the wrongful death statutes, or Lord Campbell's Act, or under a survival statute, while the former action was at common law, or vice versa, if the requirements of the plea are met.

3. Is the plea here sufficient as a plea of estoppel by judgment? We conclude that, as against general demurrer, it is. After reciting the facts involved in both the prior action and in the current action and the parties involved in each, it is alleged that 'the same identical acts of negligence' were alleged against the defendant in the prior action as appear in the present suit, and that 'all the acts of negligence alleged against the defendant, Bennie Smith, in the present suit were alleged against said defendant in the previous suit filed by Marion Boyd Wood, growing out of the same wreck, and were within the scope of the pleadings and evidence in said previous case and were duly adjudicated in that case in favor of the defendant.'

A plea of res judicata or of estoppel by judgment 'should allege all the facts and exhibit all the record essential to show that the plea is meritorious' (Butler, Stevens & Co. v. Moseley, 14 Ga.App. 288(2), 80 S.E. 789; cf. Scarborough v. Edgar, 176 Ga. 574(3), 168 S.E. 592, overruled on other grounds in Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894; but absence of the pleadings and evidence of the former case as an exhibit to the plea in the present case is a matter for special demurrer. Roadway Express, Inc. v. McBroom, 61 Ga.App. 223(2), 6 S.E.2d 460.

It is necessary, of course, that the plea be supported by evidence; and if the plea is sufficient to withstand a general demurrer, it is error to dismiss it without having afforded opportunity to introduce evidence in support thereof. King v. Pate, 215 Ga. 593(1), 112 S.E.2d 589. Cf. Weaver v. Tuten, 138 Ga. 101, 74 S.E. 835. On the other hand, if no evidence is tendered to support it, the plea should be dismissed. Carr v. Car-Perk Services, Inc., 222 Ga. 793, 152 S.E.2d 692.

4. Since it is obvious that the parties to the prior action and to the present action are not the same, in that Mr. Wood's children are added as plaintiffs in the present action, the question arises as to whether the children are privies so that the plea is available against them.

In the context here one party is a privy of another where there is a mutual or successive relationship to the same...