Stiltjes v. Ridco Exterminating Co., Inc.
Decision Date | 15 November 1990 |
Docket Number | No. A90A1425,A90A1425 |
Citation | 399 S.E.2d 708,197 Ga.App. 852 |
Parties | STILTJES v. RIDCO EXTERMINATING COMPANY, INC. |
Court | Georgia Court of Appeals |
Lefkoff, Duncan, Grimes & Dermer, John R. Grimes, Atlanta, for appellant.
Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Stephanie L. Scheier, Atlanta, for appellee.
Plaintiff Stiltjes, acting in her capacity as the administratrix of the estate of her deceased husband, filed this action against defendant Ridco Exterminating Company, Inc. ("Ridco") and another corporation. The complaint seeks damages for the pain and suffering of plaintiff's decedent due to the alleged negligence of defendants.
In a previous action, plaintiff, in her individual capacity, sought damages from defendant Ridco (and additional defendants who were eliminated from the action before trial), for the wrongful death of her husband. A jury trial resulted in a verdict for defendant Ridco. In Stiltjes v. Ridco Exterminating Co., 192 Ga.App. 778, 386 S.E.2d 696 (1989), we affirmed the judgment in favor of defendant Ridco in the wrongful death action.
In the case sub judice, defendant Ridco moved for summary judgment, relying upon res judicata and collateral estoppel. Plaintiff appeals from the grant of summary judgment in favor of defendant Ridco. Held:
Norris v. Atlanta & West Point R. Co., 254 Ga. 684, 333 S.E.2d 835 (1985).
The cause of action by the wife for the wrongful death of her husband is a separate and distinct cause of action from that of the deceased's estate for pain and suffering. Complete Auto Transit v. Floyd, 214 Ga. 232, 235(2), 104 S.E.2d 208 (1958). Thus, the claim asserted in the case sub judice is not barred by the doctrine of res judicata.
Directing our attention to the doctrine of collateral estoppel, we note that, as with res judicata, identity of parties or their privies is required in order to act as a bar to a second lawsuit. Mills v. Roberts, 172 Ga.App. 77, 78, 322 S.E.2d 93 (1984). This brings us to the question of whether plaintiff, acting in her fiduciary capacity in the case sub judice, is the same party as plaintiff acting in her individual capacity in the wrongful death action. We find that plaintiff Stiltjes in her individual capacity and in her capacity as administratrix are legally different persons. Stanley v. Dominy, 196 Ga. 192(1), 26 S.E.2d 355 (1943); Anderson Oil Co. v. Benton Oil Co., 246 Ga. 304, 306, fn. 6, 271 S.E.2d 207 (1980). Since the individual plaintiff in the former action did not represent the administratrix, nor did the administratrix claim any right under the individual, the...
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