Appeal by defendant from the Circuit Court of Sangamon county;
the Hon. DeWITT S. CROW, Judge, presiding. Heard in this court at
the May term, 1953. Reversed and remanded. Opinion filed June 16,
1953. Rehearing denied July 17, 1953. Released for publication
July 17, 1953.
MR. JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 17, 1953
Plaintiffs-appellees (hereinafter referred to as plaintiffs), Voss Truck Lines, Inc. and Harold Curtis, brought suit in the circuit court of Sangamon county against Louis Pike, d/b/a Pike Truck Lines and Wilma Howard, Administrator of the estate of Erthel J. Howard, deceased (hereinafter referred to as defendant), to recover for certain property damage resulting from a collision between the truck of defendant, Louis Pike, and a tractor-trailer unit owned by the plaintiffs. The accident occurred on U.S. Route 66 in McLean county.
The complaint, consisting of two counts, was filed August 10, 1948, and alleged Voss Truck Lines to be the owner of a trailer unit attached to a tractor owned by Harold Curtis and leased to Voss Truck Lines and operated by Albert Price; that the truck of defendant was owned by Louis Pike and operated by his servant and agent, Erthel Howard, who died and for whose estate an administrator was appointed. The complaint further charged Pike, through his agent and servant, Howard, with certain acts of negligence as the result of which a collision occurred, causing the damages claimed.
Answers to the complaint were filed by both defendants, and the defendant Pike filed counterclaims against both plaintiffs for property damage and the amounts for which he had become liable under the Workmen's Compensation Act to the widow of Erthel Howard, deceased. The counterclaims alleged Price to be the driver of the Curtis tractor, pulling the Voss trailer, as the agent and servant of Voss, and that the counterdefendants were guilty of certain acts of negligence which caused the collision in question. Answers to the counterclaims were filed in which the agency of Price was admitted and the charge of negligence denied.
On April 14, 1950, the plaintiffs filed a verified motion which was denominated "Motion for Judgment," in which they moved the court to summarily enter a judgment of "not guilty" upon the counterclaims and to enter judgment upon the complaint in favor of plaintiffs and against the defendants in such amounts as the evidence might show them to be entitled.
This motion, after reciting the substance of the pleadings, alleged that on or about August 25, 1948, Albert L. Price, driver of the Voss-Curtis truck unit, filed suit in the circuit court of McLean county against Louis Pike, defendant herein, to recover for personal injuries sustained in the same collision which is the subject matter of the instant case; that in his complaint he charged the same negligence on the part of Erthel J. Howard as the agent of the said Louis Pike as is alleged in the complaint in the instant or Sangamon county suit; that Pike filed his answer in the McLean county suit admitting the agency relationship between himself and Howard and denying negligence on the part of his said agent and due care on the part of Price; that Pike filed a counterclaim against Price and also against Voss Truck Lines and Harold Curtis, who were made additional parties; that said counterclaim alleged Howard to be the agent of Pike and that Price was the agent of Voss Truck Lines, Inc.; that the counterdefendants, through the negligence of their agent, Price, caused the collision and resulting damages to counterplaintiff, and that recovery on the counterclaim was sought as against Price only. The motion further recited that the McLean county cause was tried before a jury, resulting in a verdict for plaintiff therein and against Pike on January 17, 1950, upon which a final judgment was entered on March 17, 1950. The motion then argumentatively concludes that the only issues involved in the Sangamon county case are the due care and freedom from contributory negligence of Price and the negligence of Howard as the proximate cause of the collision, which issues have been determined adversely to defendant by a court of competent jurisdiction, and therefore said defendant is estopped in this suit from relitigating said issues. Attached to the motion is a transcript of parts of the record in the McLean county case, showing proceedings therein as alleged in said motion.
Upon a hearing the motion was allowed and judgment entered, finding the counterdefendants not guilty on the counterclaim and in favor of plaintiffs in "such amount as the evidence hereafter submitted may establish." Evidence as to damages was heard by the court, resulting in entry of final judgments for Voss Truck Lines, Inc. in the amount of $2,579.46 and for Harold Curtis in the amount of $2,100. From these judgments this appeal has been taken.
The defendant contends that the trial court erroneously applied the rule of estoppel by verdict in allowing the plaintiff's motion for judgment, and that the evidence did not warrant the allowance of damages to plaintiff, Voss Truck Lines, Inc., for loss of use of their trailer.
The principal points argued by defendant are that there are issues in the instant case which were not adjudicated in the McLean county case, and therefore the doctrine of res judicata is not applicable to the factual situation here presented, and that the manner in which the question of estoppel was raised is improper. Defendant points to the issues of contributory negligence of plaintiffs and the relationship of Price to the plaintiffs as not being determined in the McLean county case.
The first question to be determined is whether the issues upon which the liability of the defendant in the Sangamon county case must be determined are the same as the controlling issues which were tried and decided adversely to the defendant in the McLean county case.
Consideration will first be given to that part of the case in which Voss Truck Lines, Inc. seeks recovery. The judgment in the McLean county case required a determination of the following: (1) That Price, the driver of the Voss-Curtis truck, was free from contributory negligence; (2) That Pike was guilty of the negligence charged against him.
These same issues are involved in the instant case. However, it is alleged in Count I of the complaint that Voss was in the exercise of due care and caution. Denial of this allegation by the defendant raised a material issue for determination. The question which naturally follows is as to whether this issue was tried and determined in the McLean county case. Plaintiffs argue that the only negligence with which Voss could be charged was that of the agent Price, and that a finding in the McLean county case that Price was in the exercise of due care was in effect a finding that Voss was also in the exercise of due care. In order for this argument to prevail, it must be assumed that Voss could not be guilty of any negligence except that chargeable to the servant and agent. In the McLean county suit, Price did not allege, nor was he required to prove that Voss was free from negligence. This being true, we can perceive no basis upon which Voss can maintain that its freedom from negligence in the instant case was established in the McLean county case. Plaintiff's argument overlooks the fact that in the McLean county case, there was no attempt to hold Voss, the principal, responsible for the acts of its servant, Price.
The trial court, in allowing the motion for judgment, held that Pike was estopped by the verdict in the McLean county case from litigating the issue of the contributory negligence of Voss. The rule applied is a phase of the doctrine of res judicata, which is generally referred to as estoppel by verdict. It has been defined in People v. Louisville & N.R. Co., 350 Ill. 274, in this language: "It is also the law that where a controlling fact or matter is in issue between the parties to a suit and is determined and decided by the judgment in such suit, and such fact or matter is again in issue between the same parties in a subsequent suit, the former adjudication, if properly presented and relied on, will be conclusive of the issue in the later suit whether the cause of action is the same in both suits or not. This is generally denominated estoppel by verdict. (City of Chicago v. Partridge, 248 Ill. 442.)" That this rule rests upon sound reasoning is apparent. A party having had ...