Whitehead v. General Tel. Co.

Decision Date17 December 1969
Docket NumberNo. 69-24,69-24
Citation49 O.O.2d 435,20 Ohio St.2d 108,254 N.E.2d 10
Parties, 41 A.L.R.3d 526, 49 O.O.2d 435 WHITEHEAD, a Minor, Appellee, v. GENERAL TELEPHONE CO. of Ohio, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action upon the same cause of action between the parties or those in privity with them. The prior judgment is res judicata as between the parties or their privies. (Paragraph No. 1 of syllabus of Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67, approved and followed.)

2. A final judgment or decree in an action does not bar a subsequent action where the causes of action are not the same, even though each action relates to the same subject matter. However, a point of law or a fact which was actually and directly in issue in the former action, and was there passed upon and determined by a court of competent jurisdiction, may not be drawn in question in a subsequent action between the same parties or their privies. The prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the priro action. (Paragraphs Nos. 2 and 3 of syllabus of Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67, approved and followed.)

3. Where a defendant negligently causes injury to a minor child, that single wrong gives rise to two separate and distinct causes of action: an action by the minor child for his personal injuries and a derivative action in favor of the parents of the child for the loss of his services and his medical expenses.

4. Generally, a person is in privity with another if he succeeds to an estate or an interest formerly held by another. A parent's cause of action for the loss of services and medical expenses of an injured minor child, although derivative, does not arise by way of succession from an estate or interest of the minor child, and, in such case, the parents and minor child are not in privity.

5. Where a court determines, in an action by the parents of an injured minor child, that a defendant is not liable to the parents for the loss of services and medical expenses of the child, that judgment does not collaterally estop the child from bringing an action against that same defendant to recover damages for her personal injuries, so long as it does not appear from the record in that prior action that the child was a party, or that the child was a real party in interest, or that the child had control over that litigation, or that the parents and child were in privity.

This action to recover damages for personal injuries was filed in the Common Pleas Court of Lucas County by Bobetta A. Whitehead, a minor, through her father and next friend, Jess R. Whitehead. Plaintiff-appellee alleged in her petition that the appellant, General Telephone Company of Ohio, negligently installed and maintained a telephone at the Whitehead residence and that defendant Major Materials Corporation of Ohio (which was affixing vinyl siding to the Whitehead residence at the time of the injury) was negligent in dislodging the telephone ground wire, in removing the cover from the telephone fuse box on the side of the house and in leaving a metal ladder against the house in close proximity to the telephone wire during an electrical storm. The telephone service was installed in the Whitehead residence by General Telephone Company in 1960.

On July 11, 1966, Major Materials Corporation of Ohio commenced work to affix vinyl siding to the Whitehead home. During the morning of July 12, 1966, an employee of Major Materials, preparatory to the installation of the vinyl siding, removed the telephone lightning arrester (fuse box) from the side of the house. In order to dislodge this device, it was necessary to remove the cover, loosen it from the house and allow the fuse box to hang limp, attached only to the wires leading into it. The arrester remained hanging in this exposed condition while the employee left for lunch. A rainstorm developed during the employee's lunch period and because of the storm he was unable to return to the Whitehead residence. While using the telephone, at approximately 6:30 p. m. on July 12, 1966, the appellee's left ear was injured by an electrical discharge, which was emitted from the earpiece and caused by a bolt of lightning.

The record contains conflicting testimony on the question of whether or not the 'ground wire,' which runs from the fuse box on the side of the house to the ground, was in fact in the ground. The testimony that the ground wire was not properly attached to a 'ground rod' was not controverted.

Prior to the trial of this case, the parents of the appellee brought suit against the appellant and Major Materials in Sylvania Municipal Court for the loss of appellee's services and medical expenses, alleging that such loss was the result of defendant's negligence. The Municipal Court entered a judgment for the telephone company.

In answer to appellee's petition in the case at bar, appellant admitted that it was a corporation doing business under the laws of the state of Ohio, denied each and every other allegation in the appellee's petition and affirmatively alleged that: 'On or about the 30th day of September, 1966, plaintiffs Jess R. Whitehead and Bobetta A. Whitehead instituted an action against these same defendants in the Municipal Court of Sylvania, Ohio, bearing Cause No. 01262 on the Civil Docket of said court and being entitled Jess R. Whitehead and Bobetta A. Whitehead vs. General Telephone Company of Ohio and Major Materials Corporation of Ohio; that plaintiffs sought to recover a money judgment therein against said defendants for loss of services and medical expenses; that after due trial of said action a judgment was entered by the court in favor of defendant General Telephone Company of Ohio; that the issues in the instant case regarding the liability of General Telephone Company of Ohio are identical to the issues adjudicated in the Sylvania Municipal Court and that said issues were resolved adversely to the plaintiff and in favor of the defendant and that plaintiff is thereby estopped by judgment entered in the prior action from relitigating herein the identical issues which were raised in said prior action or which could have been raised therein.'

The trial court sustained the appellee's demurrer to this defense and appellant filed an amended answer. During the trial, the appellee settled her claim against Major Materials for $4,000 and it was dismissed as a party-defendant. The jury returned a verdict of $12,500 for the appellee and against appellant, and the trial court entered judgment upon that verdict. The Court of Appeals for Lucas County affirmed the judgment and the cause is here pursuant to the allowance of a motion to certify the record.

Cruey, Kelb, Duffey & Hewes and George R. Hewes, Toledo, for appellee.

Eastman, Stichter, Smith & Bergman, Jamille G. Jamra and M. Donald Carmin, Toledo, for appellant.

HERBERT, Judge.

Appellant argues that this injured minor is estopped to relitigate the identical issues involved in her parent's derivative action in the Sylvania Municipal Court for loss of services and medical expenses. Thus, this case presents the question whether the defense of collateral estoppel applies to one who was not a party to the prior suit in which the identical issues were determined.

The doctrine of res judicata involves two basic concepts. Norwood v. McDonald (1943), 142 Ohio St. 299, 52 N.E.2d 67. First, it refers to the effect a judgment in a prior action has in a second action based upon the same cause of action. The Restatement of the Law, Judgments, Section 45, uses the terms 'merger' and 'bar.' If the plaintiff in the prior action is successful, the entire cause of action is 'merged' in the judgment. The merger means that a successful plaintiff cannot recover again on the same cause of action, although he may maintain an action to enforce the judgment. If the defendant is successful in the prior action, the plaintiff is 'barred' from suing in a subsequent action, on the same cause of action. The bar aspect of the doctrine of res judicata is sometimes called 'estoppel by judgment.' Restatement of the Law, Judgments, Section 45, comment (b).

The second aspect of the doctrine of res judicata is 'collateral estoppel.' While the merger and bar aspects of res judicata have the effect of precluding a plaintiff from relitigating the same cause of action against the same defendant, the collateral estoppel aspect precludes the relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action which was based on a different cause of action. Restatement of the Law, Judgments, Section 45, comment (c) and Section 68(2); Cromwell v. County of Sac (1876), 94 U.S. 351, 24 L.Ed. 195. In short, under the rule of collateral estoppel, even where the cause of action is different in a subsequent suit, a judgment in a prior suit may nevertheless affect the outcome of the second suit.

In the instant case, the single alleged wrong gave rise to two separate and distinct causes of action; an action by the minor for her personal injuries and a derivative action in favor of the parents of the child for the loss of her services and her medical expenses. Marmorstein v. Schuck (1928), 29 Ohio App. 229, 163 N.E. 508; Bagyi v. Miller (1965), 3 Ohio App.2d 371, 210 N.E.2d 887; Travelers Indemnity Co. v. Godfrey (Com.Pleas 1967), 12 Ohio Misc. 143, 230 N.E.2d 560. See Clark v. Bayer (1877), 32 Ohio St. 299, 30 Am.Rep. 593; Weiand v. Akron (19...

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