Vaca v. Whitaker

• Decision Date: 06 February 1974
• Docket Number: No. 1182,1182
• Citation: 86 N.M. 79,519 P.2d 315,1974 NMCA 11
• Parties: Alicia VACA and Hector Vaca, Plaintiffs-Appellees, v. L. H. WHITAKER, M.D., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 315

519 P.2d 315

86 N.M. 79

Alicia VACA and Hector Vaca, Plaintiffs-Appellees, v. L. H. WHITAKER, M.D., Defendant-Appellant.

No. 1182.

Court of Appeals of New Mexico.

Feb. 6, 1974.

Wayne A. Jordan, Shipley, Durrett, Conway & Sandenaw, Alamogordo, Sherman & Sherman, Deming, for defendant-appellant

Joe H. Galvan, Edward E. Triviz, Las Cruces, for plaintiffs-appellees.

OPINION

WOOD, Chief Judge.

The issues are: (1) jurisdiction to consider an interlocutory appeal; (2) collateral estoppel; (3) effect of a satisfied judgment; and (4) propriety of summary jdugment.

Plaintiffs are wife and husband. The complaint and answer establish that plaintiffs' vehicle was struck by a car driven by Gandara; that the wife suffered injury to her person in the accident; that she was examined by defendant and was under his professional care for a specified period of time. Defendant is a physician. Plaintiffs seek damages from defendant on a theory of negligence in diagnosis and treatment.

Defendant moved for summary judgment. The motion is supported by documents, not disputed, which show that plaintiffs recovered a jdugment for damages against Gandara in the United States District Court. Claiming that plaintiffs could not recover damages in excess of the amount awarded in the federal litigation, defendant asserted he was entitled to summary judgment 'as a matter of law as to the issue of the amount of damages suffered by the Plaintiffs.' The trial court denied the motion.

Jurisdiction to consider an interlocutory appeal.

Defendant sought, and this Court granted, an interlocutory appeal on the basis of § 21--10--3, N.M.S.A. 1953 (Repl.Vol. 4, Supp.1973). Section 21--10--3(A), supra, refers to interlocutory orders or decisions in the district court. Section 21--10--3(B), supra, states: 'The Supreme Court or court of appeals has jurisdiction over an appeal from such an interlocutory order or decision, as appellate jurisdiction may be vested in these courts.' (Our emphasis).

Plaintiffs assert no jurisdiction has been given to this Court for the type of interlocutory appeal involved in this case. The type of interlocutory appeal involved is an appeal from an order or decision which does not practically dispose of the merits of the case. See § 21--10--3(A), supra. Plaintiffs contend the jurisdiction of this Court is limited to appeals from final judgments and from interlocutory orders 'as practically dispose of the merits of the action, so that any further proceeding therein would be only to carry into effect' the interlocutory order. Sections 21--2--1(5)(1) and 21--2--1(5) (2), N.M.S.A. 1953 (Repl.Vol. 4).

Plaintiffs' contention fails to consider the constitutional provision which states that appellate jurisdiction of the Court of Appeals shall be as provided by law. N.M.Const. Art. VI, § 29; compare N.M. Const. Art. VI, § 2. Section 21--10--3(B), supra, expressly gives this Court appellate jurisdiction over the type of interlocutory appeal here involved. The phrase 'as appellate jurisdiction may be vested' refers to the subject matter jurisdiction conferred on this Court by law. Subject matter jurisdiction in this case is conferred by § 16--7--8(A), N.M.S.A. 1953 (Repl.Vol. 4).

This Court has jurisdiction in this interlocutory appeal.

Collateral estoppel.

On the basis that plaintiffs recovered a judgment against Gandara in the federal litigation, defendant contends plaintiffs are estopped to seek damages against him in excess of the amount awarded in the federal judgment.

(a) The doctrine of collateral estoppel is the second aspect of res judicata defined in 1B Moore's Federal Practice, 0.405 (2d ed. 1965). See Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). New Mexico decisions have applied this aspect of the doctrine. State v. Johnson, 52 N.M. 229, 195 P.2d 1017 (1948); Paulos v. Janetakos, 46 N.M. 390, 129 P.2d 636, 142 A.L.R. 1237 (1942).

(b) As defined, collateral estoppel may be applied only to parties or privies to the action in which the judgment was rendered. This limitation is known as the doctrine of mutuality. See Moore's Federal Practice, supra, 0.411. '(T) he mutuality requirement prevents a litigant from invoking the conclusive effect of a jdugment unless he would have been bond if the judgment had gone the other way.' Moore's Federal Practice, supra, 0.412(1).

(c) New Mexico decisions have not expressly referred to the doctrine of mutuality. However, Employers' Fire Insurance Company v. Welch, 78 N.M. 494, 433 P.2d 79 (1967) states: 'As a general rule, the rights of the parties, for the purposes of subsequent controversies between them, are not determined in the absence of adversity in the suit in which the original judgment is rendered.' See Adams v. Cox, 55 N.M. 444, 234 P.2d 1043 (1951); compare Salazar v. Murphy, 66 N.M. 25, 340 P.2d 1075 (1959).

(d) Defendant asserts the quotation from Employers' Fire Insurance Company v. Welch, supra, is dicta and, therefore, not a 'precedent' binding on this Court. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

(e) On the basis that the mutuality requirement is an open question in New Mexico, defendant urges us to adopt the so-called 'modern' view of mutuality. That view is that where there is identity of issues between two suits, a party bound by a judgment in the first suit would be bound by the jdugment in the second suit even though his adversary, who invokes the prior adjudication, was neither a party nor privy to the first suit and would not have been bound by the jdugment in the first suit had it gone the other way. See Moore's Federal Practice, supra, 0.412(1), particularly, nn. 12 and 14 which list cases departing from the mutuality requirement and writers defending and opposing the doctrine of mutuality.

(f) To successfully invoke collateral estoppel, defendant must rely on the 'modern' view of mutuality because he was not a party to the federal suit and does not claim that he was privy to that suit.

It is not necessary to decide the questions presented under this issue. Defendant's motion for summary judgment was directed to the damages recoverable in the suit against defendant. At oral argument, it was agreed that the judgment against, Gandara had been satisfied. Thus, 'a quite distinct principle' is involved. Proser, Law of Torts, § 48 (4th ed. 1971). That principle is concerned with the effect of a satisfaction of judgment.

Effect of a satisfied jdugment.

Prosser, supra, states that a plaintiff is entitled to but one compensation for his loss and that satisfaction of his claim prevents its further enforcement. 'It is obvious that this rule is equitable in its nature, and that its purpose is to prevent unjust enrichment.'

New Mexico decisions have applied this principle: (a) in disallowing duplicate awards for property damage, Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178 (1952); (b) in disallowing damages for loss of use and profits from trucks when damages were allowed for rental of substitute trucks, Industrial Supply Company v. Goen, 58 N.M. 738, 276 P.2d 509 (1954); and (c) in providing that payments by one joint tort-feasor are to be applied to reduce the total damage award that may be recovered, Bailey v. Jeffries-Eaves, Inc., 76 N.M. 278, 414 P.2d 503 (1966); compare Garrison v. Navajo Freight Lines, Inc., 74 N.M. 238, 392 P.2d 580 (1964). Prosser, supra, states:

'* * * (I)t is now held everywhere where that an unsatisfied judgment against one tortfeasor does not bar an action against another. The plaintiff may bring separate suits, pursue each to judgment, and elect to enforce either or both. * * *

However, when a judgment against one tort-feasor is satisfied, Professer, supra, states:

'* * * When payment of the judgment in full is made by the judgment debtor, there is no doubt that the plaintiff is barred from a further action against another who is liable for the same damages. * * *'

This rule has been applied where a judgment for plaintiff against the original wrongdoer has been satisfied and the plaintiff then seeks to recover from a physician for alleged malpractice. Cases involving this situation proceed on the basis that the original wrongdoer is liable for negligence of the physician in treating the injured person. Neither party disputes such liability in this case. See Jess Edwards, Inc. v. Goergen, 256 F.2d 542, 100 A.L.R.2d 804 (10th Cir. 1958); Gilbert v. New Mexico Const. Co., 39 N.M. 216, 44 P.2d 489 (1935).

In Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876 (1944) the judgment had been satisfied of record; in addition, the plaintiff had signed a document releasing the original wrongdoer from further liability. Ash, supra, held this was effective to release the physician from liability for aggravating the original injury, if there had been full compensation, but not otherwise. In Selby v. Kuhns, 345 Mass. 600, 188 N.E.2d 861 (1963), the judgment against the original wrongdoer had been satisfied. Selby, supra, states: 'It must be determined * * * whether the amount paid on that judgment was full satisfaction in fact of the malpractice claim and if not what is the uncompensated amount of that claim.'

Knutsen v. Brown, 96 N.J.Super. 229, 232 A.2d 833 (1967) states: 'If * * * the judgment in the first action (is) found to encompass an award for all the injuries sustained by plaintiff, including those now alleged to be attributable to defendants' malpractice, then the satisfaction of that judgment bars the maintenance by plaintiff of the present action to recover for a portion of the total injuries.' See also Sacchetti v. Springer, 303 Mass. 480, 22 N.E.2d 42 (1939); Cimino v. Alway, 18 Ariz.App. 271, 501 P.2d 447 (1972).

We follow the above cases and hold that if the federal court judgment was in fact a damage award for the injuries sustained by plaintiffs, and if the federal court judgment included the injuries now asserted to be attributable...