Spettigue v. Mahoney

• Decision Date: 08 October 1968
• Docket Number: No. 2,CA-CIV,2
• Citation: 8 Ariz.App. 281,445 P.2d 557
• Parties: Richard A. SPETTIGUE, by his Guardian Virginia M. Spettigue and Robert L. Spettigue, Petitioners, v. T. J. MAHONEY, Judge of the Superior Court, in and for the County of Pinal, the Arizona Highway Commission and the State of Arizona, Respondents. 569.
• Court: Arizona Court of Appeals

Page 557

445 P.2d 557

8 Ariz.App. 281

Richard A. SPETTIGUE, by his Guardian Virginia M. Spettigue and Robert L. Spettigue, Petitioners, v. T. J. MAHONEY, Judge of the Superior Court, in and for the County of Pinal, the Arizona Highway Commission and the State of Arizona, Respondents.

No. 2 CA-CIV 569.

Court of Appeals of Arizona.

Oct. 8, 1968.

Rehearing Denied Nov. 6, 1968.

Fennemore, Craig, vonAmmon, McClennen & Udall, by Silas H. Shultz, Phoenix, for petitioners.

Gary K. Nelson, The Atty. Gen., Darrell F. Smith, Former Atty. Gen., Peter C. Gulatto, James R. Redpath, Asst. Attys. Gen., Phoenix, for respondents.

MOLLOY, Judge.

This is a review by certiorari of an order entered in a personal injury action denying the plaintiffs' motion for a pre-trial determination ¹ that the defendant, State of Arizona, is liable to the plaintiffs under the doctrine of res judicata for injuries received because of negligence allegedly committed by the defendant in the construction and maintenance of a bridge on a public highway.

The plaintiffs' injuries arise out of the same two-car accident which was the subject of previous litigation which resulted in a judgment for the plaintiffs and against the State of Arizona, and which litigation was the subject of an opinion of this court, State v. Watson, 7 Ariz.App. 81, 436 P.2d 175 (1967), review denied March 5, 1968. Though the plaintiffs were not parties to this previous litigation, they contend they are entitled to the benefit of the adjudication of negligence and proximate causation rendered in this previous action.

The trial court denied the motion for partial summary judgment, thus man-dating that a trial be held on the issue of liability as well as damages. The issue of liability promises to engross a busy court for many days and if the trial court was in error in denying the motion, both the parties and the State will be put to considerable expense and effort needlessly. Under these circumstances, we can see that review by special writ is appropriate. Genda v. Superior Court, County of Pima, 103 Ariz. 240, 439 P.2d 811 (1968); and see, Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966).

We are convinced from the examination of the records, both in this action and in the previous civil action, ² that the contentions of liability here are the same as those presented in the previous litigation and that, hence, if this action be tried on the issue of liability, there will be a great overlap between the evidence in the two actions. The plaintiff Robert L. Spettigue, a minor, is a passenger in the very same automobile in which the plaintiffs in the other action were either passengers or the driver. The previous action was, as we have noted, contested in all of its phases insofar as liability is concerned, and the final judgment, affirmed after appellate procedures had been exhausted, determined the issue of liability and proximate cause adversely to the State of Arizona. There is no problem of contributory negligence to complicate the picture. ³

The petitioners' claim for relief is based upon the so-called Bernhard doctrine enunciated in Bernhard v. Bank of America National Trust & Sav. Ass'n, 19 Cal.2d 807, 122 P.2d 892 (1942), which challenges the traditional concept that there must be mutuality of estoppel before the doctrine of res judicata becomes controlling. Here, it is clear that the plaintiffs would not have been bound by a judgment in the prior action if it had been favorable to the state; nevertheless, the contention is advanced that the prior judgment establishes their right to recovery. Broad language in the Bernhard decision supports this contention:

'In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented on the action in question? was there a final judgment on the merits? Was the party Against whom the plea is asserted a party or in privity with a party to the prior adjudication?' 122 P.2d at 895. (Emphasis supplied.)

A number of recent decisions apply this doctrine to situations analogous to that presented here: DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967); United States v. United AirLines, Inc., 216 F.Supp. 709 (D.Nev.1962), aff'd and opinion adopted in United AirLines, Inc. v. Wiener, 335 F.2d 379, 404 (1964), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964); State of Maryland v. Capital Airlines, Inc., 267 F.Supp. 298 (D.Md.1967); and Zdanok v. Glidden Co., 327 F.2d 944 (2d Cir.1964).

The state of the law in our own jurisdiction is less than clear. Our Supreme Court has said on a number of occasions that when the law is not settled upon a particular subject, the law of the Restatement will be looked to with favor. In the particular situation before us now, the Restatement of Judgments denies estoppel:

'Except as stated in §§ 94--111, a person who is not a party or privy to a party to an action in which a valid judgment other than a judgment in rem is rendered (b) is not bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action.' Restatement of Judgments § 93, at 459--460.

None of the sections of the Restatement stating exceptions to the requirement of mutuality (§ 94--111) are applicable to the present situation. That the Restatement view is still probably the majority law in this country is indicated by 30A Am.Jur. Judgments § 392, at 440--441; 50 C.J.S. Judgments § 765, at 293--294; 1B Moore's Federal Practice § 0.412, at 1803--1812; Annots., 133 A.L.R. 181, at 185, and 23 A.L.R.2d 710, at 717.

In addition to its inclination to follow the Restatement, however, our Supreme Court has also demonstrated a propensity to be at the forefront of judicial reform and therefore any attempt to prognosticate its reaction to the problem at hand must give serious consideration to the Bernhard doctrine, which has been hailed by one well-respected commentator as '* * * a shining landmark of progress in justice and law administration.' Currie, Civil Procedure: The Tempest Brews, 53 Cal.L.Rev. 25, 37 (1965).

This court, Division One thereof, appears to have adopted the Bernhard view in Di Orio v. City of Scottsdale, 2 Ariz.App. 329, 408 P.2d 849 (1965). In this case, Di Orio had previously been sued by a City of Scottsdale motorcycle patrolman for injuries received in an automobile-motorcycle accident. Di Orio counterclaimed against the patrolman in that action, but later dismissed his counterclaim. The case resulted in a judgment for the plaintiff-patrolman against Di Orio. Subsequently, Di Orio sued the City of Scottsdale for injuries received in this accident, contending that the patrolman was an employee of the city at the time and that the city should respond in damages under the Respondeat superior doctrine. In holding that the prior judgment acted as a collateral estoppel against Di Orio's claim, this court cited Lustik v. Rankila, 269 Minn. 515, 131 N.W.2d 741 (1964), and quoted at length from this opinion, including in the quotation the following:

"We squarely held that estoppel by prior verdict was available in favor not only of a party who appeared in a different capacity but also of one who was a complete stranger to the prior litigation." 2 Ariz.App. 329, 332, 408 P.2d 849, 852, from 131 N.W.2d 744.

There was no need for the Bernhard doctrine to arrive at Di Orio's result. Two exceptions to the mutuality requirement delineated in the Restatement of Judgments are pertinent. The first pertains to successive actions against alleged tort-feasors where there is a duty to indemnify (a negligent servant ordinarily has the duty of indemnifying his employer), ⁴ and the second has to do with the situation where the liability of a person is based solely upon the act of another. ⁵

Despite its deviation in reasoning from the Restatement, we would consider ourselves bound by Di Orio were it not for decisions of our Supreme Court which are discordant with its pronouncements. We refer to Fox v. Weissbach, 76 Ariz. 91, 259 P.2d 258 (1953); Phelps Dodge Corp. v. Ford, 68 Ariz. 190, 203 P.2d 633 (1949); Magma Copper Co. v. Naglich, 60 Ariz. 43, 131 P.2d 357 (1942).

In Weissbach, our Supreme Court reached the decision that an adjudication in a divorce case that a certain motor vehicle was community property could not be taken advantage of by a stranger to that litigation in a subsequent proceeding in which the stranger sought to subject the automobile to a community debt. In so holding, the Court said, in part:

'We point out, however, that the instant proceeding is between different parties and the question of whether the Buick automobile was the appellant's separate property was only incidentally in the divorce action.' 76 Ariz., at 94, 259 P.2d, at 260.

In Naglich, our Court held that it was error for the Industrial Commission to admit in evidence an award made in favor of an injured workman during his life, in a subsequent proceeding brought against his employer by his widow for death benefits. The Court said:

'We hold, therefore, that while findings and awards unappealed from are res adjudicata against both the employer and the injured workman who were parties to the award, they are not res adjudicata when dependents are endeavoring to establish their right to death benefits. The commission, therefore, should not have permitted the findings and award on a claim for compensation to the deceased during his lifetime to be offered in evidence on a claim for death benefits to his dependents.' 60 Ariz., at 51, 131 P.2d, at 360.

In the Ford decision, our Supreme Court refused to permit a claimant before the Industrial Commission to use against his employer, Phelps Dodge Corporation, previous findings by the Industrial Commission in other claim proceedings that there were harmful quantities of silicon dioxide dust in the area of the claimant's work....