Trapeni v. Walker, 1088
| Decision Date | 02 September 1958 |
| Docket Number | No. 1088,1088 |
| Citation | 144 A.2d 831,120 Vt. 510 |
| Parties | Pasquale O. TRAPENI v. Gerald G. WALKER. |
| Court | Vermont Supreme Court |
Bloomer & Bloomer, Rutland, for plaintiff.
William C. Sennett, Bennington, for defendant.
Before CLEARY, C. J., and ADAMS, HULBURD, and SHANGRAW, JJ.
This is an action of tort for negligence. The defendant filed a motion to strike a portion of plaintiff's complaint. The motion was treated by the court as a demurrer. Upon hearing, the demurrer was sustained and the plaintiff was allowed exceptions, and the cause passed to this Court before final judgment under and by virtue of V.S. 47, § 2124.
In this action the plaintiff seeks to recover for loss of services of his minor son, Dominic Trapeni, and for money expended for medical treatment and hospital expenses of the boy due to injuries sustained by him in an automobile accident which occurred on May 21, 1955. At the time of the accident, Dominic, then eight years old, was a passenger in an automobile owned and operated by the plaintiff. The accident occurred near South Londonderry, Vermont, while the plaintiff was proceeding in a northeasterly direction. At the time of the accident the defendant was operating an automobile proceeding in a southwesterly direction. It is alleged by the plaintiff that as the cars met each other on a curve, plaintiff's car was forced off the road by the defendant and as a result Dominic was injured.
Dominic, by his father the plaintiff herein, as next friend, brought a prior action of tort against this defendant Gerald G. Walker in the Rutland County Court to recover damages for personal injuries arising out of the accident. A verdict was rendered in favor of the plaintiff and judgment entered thereon. The plaintiff, in his declaration in this case, sets forth the fact that such an action was brought by his son Dominic, b.n.f. with resulting verdict and judgment in his favor, and claims that by reason thereof the defendant is estopped to deny liability in this case. The plaintiff in his declaration 'offers in evidence, as a part of the pleadings, the verdict and judgment thereon in said case, being identified as No. 17929 in Rutland County Court, and requests that judicial notice be taken thereof.' To the above quoted portion of the plaintiff's complaint defendant filed a motion to strike on the following grounds. Which as above stated was treated by the court as a demurrer.
'1. The action of Dominic Trapeni, by his next friend, vs. Gerald Walker, Docket No. 17929, Rutland County Court, was between different parties than those in the within cause.
'2. The verdict and judgment of that action is not res adjudicata as to the within cause.
The questions presented are: (a) Is the defendant in this case estopped from denying liability by reason of the verdict and judgment obtained in Dominic's action against this defendant? (b) Is the defendant in this case bound by the finding of the jury in Dominic's action on the issues of the negligence of the defendant and lack of contributory negligence on the part of Dominic? (c) Is the record in Dominic's case admissible in evidence in the present action?
Estoppel by verdict is a phase of the doctrine of res judicata. Voss Truck Lines Inc., v. Pike, 350 Ill.App. 528, 113 N.E.2d 202. The distinction between a former judgment as a bar to a subsequent action under a plea of res judicata, and an estoppel by verdict or findings is set forth in Fletcher v. Perry, 104 Vt. 229, 231, 232, 158 A. 679. The rule in the latter matter was stated in Gilman v. Gilman, 115 Vt. 49 at page 52, 51 A.2d 46, 48, as follows: 'When some controlling fact or question material to the determination of both suits has been adjudicated by a court of competent jurisdiction and is again at issue between the same parties or some of them, the former adjudication will, if properly presented, be conclusive of the same fact or question in the second suit, although the two suits are not for the same cause of action.' Citing Fletcher v. Perry, supra; Spaulding v. Mutual Life Ins. Co. of N. Y., 96 Vt. 67, 72, 117 A. 376; Blondin v. Brooks, 83 Vt. 472, 479, 480, 76 A. 184.
The point decided must have been essential to the former judgment, one which must necessarily have been decided in order to support the judgment. Turner v. Bragg, 117 Vt. 9, at page 11, 83 A.2d 511, 512. In Tudor v. Kennett & Mudgett, 87 Vt. 99, at page 101, 88 A. 520 at page 521, citing Reed v. Douglas, 7 Am.St.Rep. 478, and Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195, it is stated: 'In referring to the authorities, it is important to keep in mind the difference between cases where the second suit between the parties is upon the same claim or demand and those where the second suit is upon a different claim or demand. In cases of the former class, the prior judgment, if upon the merits, concludes the parties, 'not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' In cases of the latter class, the judgment in the prior action 'operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.''
In Farrell v. Greene, reported in 110 Vt. 87, 2 A.2d 194, the plaintiff, a minor, brought an action by her next friend to recover damages for personal injuries received when she was struck by an automobile driven by the defendant while crossing a street. A similar situation appears in the case of McKirryher v. Yager, 112 Vt. 336, 24 A.2d 331. In each case the contributory negligence of the minor precluded recovery by the child. In each of the companion cases, Farrell v. Greene 110 Vt. 92, 93, 2 A.2d 196, and McKirryher v. Yager, 112 Vt. 348, 349, 24 A.2d 336, the parent of each child brought a suit for the loss of services of the minor child, and for obligations incurred for medical treatment of the child for injuries occasioned by the accident. It was held in each case that the contributory negligence of the minor was a bar to the action brought by the parent, citing Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145, 1151; Wueppesahl v. Connecticut Co., 87 Conn. 710, 89 A. 166. Also see Callies v. Reliance Laundry Co., 188 Wis. 376, 206 N.W. 198, 42 A.L.R. 712.
The plaintiff in the case now under consideration urges that if a minor child loses his case in a negligence action and by reason thereof the parent is barred from recovery, it should necessarily follow that when the minor wins his case that the parent should be permitted to plead and prove that fact and claim the benefits thereof; further that a defendant in such a case should be estopped from denying liability in an action brought by a parent to recover for consequential damages. Estoppel by verdict is equally available to a plaintiff in support of his action, when the circumstances warrant it, as when offered by a defendant as a matter of defense. Murgic v. Fort Dearborn Casualty Underwriters, 245 Ill.App. 361. The plaintiff's view is not entirely lacking in support on two issues: defendant's negligence; and lack of contributory negligence on the part of Dominic, as determined in the boy's case. Bradbury v. Humphrey, 162 Ill.App. 434; Hanna v. Read, 102 Ill. 596; Anderson v. Third Ave. Ry. Co., 1881, 9 Daily, N.Y. 487.
A former judgment is an absolute bar to a subsequent action only where the parties and subject matter and causes of action are identical, or substantially so. McKee v. Martin, 119 Vt. 177, 179, 122 A.2d 868, citing Blondin v. Brooks, supra, Gilley v. Jarvis, 94 Vt. 135, 137, 109 A. 41; Cutler v. Jennings, 99 Vt. 85, 89, 130 A. 583; Fletcher v. Perry, 104 Vt. 229, 232, 158 A. 679. Quoting from McKee v. Martin, supra, 119 Vt. at page 181, 122 A.2d at page 870,
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Ohland v. City of Montpelier
...must necessarily have been decided in order to support the judgment. Turner v. Bragg, 117 Vt. 9, 83 A.2d 511 (1951); Trapeni v. Walker, 120 Vt. 510, 144 A.2d 831 (1958). 14 28 U.S.C. § 1738 reads as The Acts of the legislature of any State, Territory, or Possession of the United States, or ......
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...On this basis appellant is collaterally estopped from raising the issue anew in the federal court proceeding. See Trapeni v. Walker, 120 Vt. 510, 144 A.2d 831 (1958); Gilman v. Gilman, 115 Vt. 49, 51 A.2d 46 It makes no difference that the Attorney General of the State (though not the State......
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...first cause of action can also support the second. See Hill v. Grandey, 132 Vt. 460, 463, 321 A.2d 28 (1974) (citing Trapeni v. Walker, 120 Vt. 510, 144 A.2d 831 (1958)). Zingher argues that his current action is not the same or substantially similar to his first suit because his prior acti......
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