Solari v. Atlas-Universal Service, Inc.

• Decision Date: 01 May 1963
• Docket Number: ATLAS-UNIVERSAL
• Citation: 30 Cal.Rptr. 407,215 Cal.App.2d 587
• Court: California Court of Appeals Court of Appeals
• Parties: Charles J. SOLARI, Plaintiff and Appellee, v.SERVICE, INC., Defendant and Appellant. Civ. 20699.

Page 407

30 Cal.Rptr. 407

215 Cal.App.2d 587

Charles J. SOLARI, Plaintiff and Appellee, v. ATLAS-UNIVERSAL SERVICE, INC., Defendant and Appellant.

Civ. 20699.

District Court of Appeal, First District, Division 1, California.

May 1, 1963.

Rehearing Denied May 15, 1963.

Rehearing Denied June 26, 1963.

Pelton, Gunther & Gudmundson, Charles E. Goff, San Francisco, for appellant.

Watson A. Garoni, Thomas J. Williams, San Francisco, for respondent.

MOLINARI, Justice.

This is an appeal by the defendant from a judgment in favor of the plaintiff in a personal injury action.

QUESTION PRESENTED

The sole question presented on appeal is whether the finding in a proceeding before the Industrial Accident Commission that an applicant did not receive certain injuries in a particular accident is res judicata in a subsequent superior court action for damages for personal injuries against a third-party tortfeasor arising out of the same accident.

The Record

On October 17, 1958, the respondent, Charles J. Solari, hereinafter called 'Solari,' was struck on the head and body while unloading a steel frame from a truck in the course of his employment for Williams & Burrows, Inc. The truck was owned by the appellant, Atlas-Universal Service, Inc., hereinafter called 'Atlas,' whose employee, Ed Wells, the operator of said truck, assisted in said unloading operations. Solari made an application to the Industrial Accident Commission, hereinafter referred to as the 'Commission,' for compensation for the injuries alleged to have been sustained in said accident against his employer and its insurance carrier. A hearing was had on said application and compensation benefits were awarded to Solari. Among the findings of fact made by the Referee of the Commission in his 'Findings and Award' were the following: '1. Applicant, Charles J. Solari, while employed as a carpenter * * * on October 17, 1958, by William and Burrows sustained injuries consisting of contusions to his left arm, left hip and back arising out of and occurring in the course of his employment * * *. 2. The evidence fails to establish that applicant sustained any injury to his head. 3. Said injury resulted in temporary total disability * * * for which applicant has been fully compensated. 4. Said injury did not result in any permanent disability.' Solari thereafter brought an action against Atlas for personal injuries. The complaint alleged in substance that on October 17, 1958, Atlas, while delivering and unloading steel frames, negligently handled the frames and let one fall, striking Solari severely on the head and body, throwing him to the ground. The complaint further alleged that the blow aggravated a severe lineal skull fracture, caused contusions of the chest, lower back and left knee sprains, profound shock, neurosis and nervousness, and further alleged that these injuries were permanent. Atlas in its answer denied the allegations of the complaint and raised the affirmative defenses of contributory negligence and assumption of risk. The 'Pre-trial Conference Order' has not been made a part of the transcript on appeal, but both sides concede in their briefs that the issues therein defined were as follows: negligence, proximate cause, what injuries were caused by the accident, contributory negligence, and the amount of damages if liability was established. The claim of res judicata was not raised in the pleadings or at the pretrial conference, but was urged for the first time during the course of the trial and under the circumstances we shall hereafter narrate.

The first witness called for the plaintiff was Solari himself. On direct examination Solari testified concerning the happening of the accident and his injuries, generally, and in particular the injuries to his head. During the course of Solari's cross-examination Atlas offered in evidence a certified copy of certain original documents filed in the office of the Commission. Among these was included the 'Findings and Award' of the Commission containing the findings hereinabove alluded to. Counsel for Solari stipulated that the documents offered were true and correct copies of the originals in the Commission's files, but objected to their admissibility on the basis of relevancy. The objection was sustained by the count. It was agreed between the court and counsel for the respective parties that in view of such offer it was understood that Atlas was objecting to the introduction of any evidence of head injury or permanent disability. During the course of the trial further evidence as to the head injury and the permanency thereof was received by the court. A motion to strike all of such testimony made after all the evidence was in was denied, as were motions for nonsuit and directed verdicts on the limited issues of head and permanent injuries. All of these motions were grounded on the res judicata effect of the Commission's findings and award. The jury returned a verdict for $20,000 upon which judgment thereon was entered. This appeal is taken from the judgment after Atlas' motion for a new trial was denied. Appellant's sole contention on appeal is that the trial court erred in admitting evidence that Solari sustained a head injury and permanent injuries over the objection that the findings and award of the Commission to the contrary were res judicata on these issues.

The Applicability of Res Judicata

As stated in Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439: 'The doctrine of res judicata has a double aspect: (1) it 'precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.' (2) 'Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action.'' (58 Cal.2d p. 604, 25 Cal.Rptr. p. 560, 375 P.2d p. 440.) (Citing and quoting from Bernhard v. Bank of America, 19 Cal.2d 807, 810, 122 P.2d 892.) The latter aspect of the doctrine is known as collateral estoppel. (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra.) The defense of res judicata is a complete bar to an action; the claim of collateral estoppel, on the other hand, is concerned with the conclusiveness of a prior determination of a particular issue. (Servente v. Murray, 10 Cal.App.2d 355, 359, 52 P.2d 270.) Accordingly, the defense of res judicata contemplated in the first aspect must be pleaded as new matter if there be an opportunity to do so. (Code Civ.Proc. § 1962, subd. 6; ¹ Strong v. Owens, 91 Cal.App.2d 336, 338-339, 205 P.2d 48; Carter v. Superior Court, 142 Cal.App.2d 350, 358, 298 P.2d 598; Haines v. Pigott, 174 Cal.App.2d 805, 808, 345 P.2d 339; Reeh v. Reeh, 69 Cal.App.2d 200, 206, 158 P.2d 751; 3 Witkin, Cal.Procedure, § 47, p. 1931; see also Rideaux v. Torgrimson, 12 Cal.2d 633, 638, 86 P.2d 826.) If there be no such opportunity the judgment itself may be used as evidence. (Code Civ.Proc. § 1962, subd. 6; Strong v. Owens, supra; Madruga v. Borden Co., 63 Cal.App.2d 116, 123, 146 P.2d 273; Rideaux v. Torgrimson, supra; Haines v. Pigott, supra; and see Johnston, Baker and Palmer v. Record Machine & Tool Co., 183 Cal.App.2d 200, 211, 6 Cal.Rptr. 847.) In the case of collateral estoppel, however, it has been held that no special plea is required on the theory that such an estoppel merely involves conclusive evidence of a fact in issue, i. e., some fact constituting either matter of defense or an element of a cause of action, rather than a complete defense to the action. (Spurr v. Daniels, 152 Cal.App.2d 867, 873, 313 P.2d 621; Gough v. Gough, 101 Cal.App.2d 262, 269, 225 P.2d 668; Blumenthal v. Liebman, 109 Cal.App.2d 374, 378, 240 P.2d 699.)

The appellant does not seek to bar Solari's action in its entirety, but to foreclose an element of the latter's cause of action, i. e., the issues of head injury and the permanency of said injury. Accordingly, the appellant concedes that if the doctrine of res judicata is applicable it is on the basis of collateral estoppel. ² In determining the validity of the plea of collateral estoppel three questions are pertinent: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? and (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (BERNHARD V. BANK OF AMERICA, SUPRA³; Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra.) Before proceeding to answer these questions in the present case we should point out that it has been held that the Industrial Accident Commission is a constitutional court and that its final decisions are given res judicata effect. (Scott v. Industrial Acc. Com., 46 Cal.2d 76, 83, 293 P.2d 18; French v. Rishell, 40 Cal.2d 477, 480, 254 P.2d 26; Duprey v. Shane, 39 Cal.2d 781, 790, 249 P.2d 8; Goodman Bros. v. Superior Court, 51 Cal.App.2d 297, 124 P.2d 644; see Cal.Const. art. XX, § 21; and see Lab.Code, § 5302; also see 3 Witkin, Cal.Procedure, § 45, pp. 1927, 1928.)

We dispose of the last question first, and answer it in the affirmative because it is undisputed that Solari was a party to the prior adjudication made by the Commission. Proceeding to the second question, which has to do with the finality of the determination, we are of the opinion that it should be answered in the negative. This conclusion is impelled by the provisions of sections 5803-5805 of the Labor Code. ⁴ The essence of these provisions is that with the exception of the finding as to employment, the Commission has continuing jurisdiction for five years from the date of injury within which to rescind, alter, or amend any of its orders, decisions and awards. (Lab.Code, § 5804.) ⁵ As to the finding of employment, which goes to the jurisdiction of the court, the Commission, after an award has...