Thomas v. Fertick
| Decision Date | 12 January 1962 |
| Docket Number | Civ. A. No. 3469. |
| Citation | 200 F. Supp. 851 |
| Parties | Dorothy R. THOMAS, Administratrix of the Estate of George M. Thomas, Deceased v. Harry Ulman FERTICK; Nick Beucher, Jr.; Bess, Inc.; and Packing House By-Products Company. |
| Court | U.S. District Court — Eastern District of Tennessee |
Gearinger, Banks & Hutcheson, Chattanooga, Tenn., for plaintiff.
Goodpasture, Carpenter, Dale & Woods, Nashville, Tenn., Jess Parks, Noone, Moseley & Noone, Chattanooga, Tenn., for defendants.
This is a suit for an alleged wrongful death arising out of an automobile accident. The plaintiff has joined four parties as defendants. Harry Ulman Fertick is sued as the driver of the automobile alleged to have caused the death of the plaintiff's decedent, George M. Thomas. The defendant, Nick Beucher, Jr., is sued as the owner of the automobile driven by Fertick and as his employer, master or principal. The defendant, Bess, Inc., is sued also as an employer, master or principal of Fertick. The defendant, Packing House By-Products Company, is sued as the owner of the automobile driven by Fertick and as his employer, master or principal.
It appears that this automobile accident occurred upon May 1, 1959, near Murfreesboro, Tennessee. It involved a headon collision between the automobile driven by George M. Thomas and the automobile driven by Harry Ulman Fertick. Mr. Thomas was killed in the accident. Mr. Fertick was injured, as was a passenger in his automobile, Merle E. Danielson.
This suit for the alleged wrongful death of Mr. Thomas was brought in this court, while the suits of Mr. Fertick and Mr. Danielson for personal injuries were brought in the State Court. These personal injury actions have heretofore been tried in a consolidated trial, resulting in a verdict in favor of the Thomas Estate, and against Mr. Fertick and Mr. Danielson.
A motion for summary judgment upon the issue of liability has now been filed in this suit by the plaintiff, asserting that the judgment in the State Court cases is res judicata upon this issue.
It appears that this motion must fail.
Although it is admitted, as contended by the plaintiff, that in the case of the guest, Mr. Danielson, the verdict could only be founded upon a finding by the jury that Mr. Thomas was free of any negligence, nowhere has there been any former adjudication that Mr. Fertick was necessarily guilty of negligence. Neither does the verdict in Mr. Fertick's suit necessarily adjudicate this issue.
A part of the misunderstanding apparently arises out of the consolidation on trial of the Fertick and the Danielson suits. Clearly, if the suits had been tried separately, the verdict and judgment in the Danielson case would not be res judicata in this case. Had the Danielson case been tried separately, obviously there would have been no identity either in the cause of action or in the parties. Had the Fertick case been tried separately, while there is an identity as to some of the parties (the matter of privies will not be dealt with here), the suit of Thomas v. Fertick is not the same cause of action as the suit of Fertick v. Thomas.
The fact that Fertick v. Thomas is not the same cause of action as Thomas v. Fertick is clearly demonstrated by the fact that Fertick could not assert the former judgment as res judicata to the Thomas suit. Res judicata is normally applicable to defenses, whether asserted or not. A defendant is not permitted to go back and relitigate a suit because he has some other defense not previously asserted. 30A Am.Jur., "Judgments," Sec. 382. A counter-claim or cross-action, however, at least in the absence of a mandatory counter-claim or cross-action requirement, is not barred by a plea of res judicata. This result follows because the original suit and the counter-claim or cross-action are two causes of action, not one. 30A Am.Jur., "Judgments," Sec. 386.
A consolidation upon trial of the Fertick and Danielson cases does not change...
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