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Smith v. Bishop

OPINION FILED NOVEMBER 30, 1962.

THEDA SMITH, APPELLANT,

v.

THOMAS W. BISHOP, JR. ET AL., APPELLEES.



APPEAL from the Appellate Court, Third District; heard in that court on appeal from the Circuit Court of Champaign County; the Hon. B.E. MORGAN, Judge, presiding.

MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1963.

TheDA Smith brought an action in the circuit court of Champaign County for personal injuries. Summary judgment was entered for defendants on the ground that plaintiff had been next of kin in whose behalf an action had been brought against the same defendants for wrongful death of her two infant children killed in the same accident, that the wrongful death action had resulted in a verdict and judgment for defendants, and that estoppel by verdict applies. Judgment in the present case was affirmed in the Appellate Court, and we have granted plaintiff leave to appeal to this court for further review.

Plaintiff was injured in an automobile accident. The facts relating to the occurrence appear at length in the wrongful death case. (See Gordon v. Farmer City Cheese Co. 32 Ill. App.2d 85.) In brief, plaintiff was in a car with her husband and their three young children, traveling on one of the principal highways in this State. Her husband was driving. Ahead of them appeared a milk truck traveling slowly in the same direction. Just as they pulled out to get around it, the truck made a left turn into a farm driveway. In the resulting collision the husband and two minor daughters lost their lives. The plaintiff and their small son were injured but survived.

The wrongful death action was brought by the administrator of the daughters' estates against the truck driver and his employer, charging negligence, and also against the administrator of the father's estate, charging wilful and wanton misconduct by the decedent in the operation of his car. The present action was brought against the same defendants for injuries incurred by the plaintiff personally in the same accident. The sole question is one of law, namely whether or not the doctrine of estoppel by verdict applies.

The general rules were stated in Hoffman v. Hoffman, 330 Ill. 413, as follows: "Where a former adjudication is relied upon as an absolute bar, there must be, as between the actions, identity of parties, of subject matter and of cause of action. When the second action between the same parties is upon a different claim or demand, 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. Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not. This is sometimes denominated as an estoppel by verdict." There is a difference, then, between the effect of a judgment as a bar against the prosecution of a second action on the same claim, and its effect as an estoppel in an action upon a different claim. In the first situation the judgment is conclusive not only as to what was actually determined in the former case but also as to any other question which could have been raised therein. (Skolnik v. Petella, 376 Ill. 500.) In the second situation, where the subsequent litigation is upon a different claim or cause of action, the determination is not conclusive unless the precise question in controversy had been raised and determined in the former litigation. Ohio National Life Ins. Co. v. Board of Education, 387 Ill. 159, 167-168; Hoffman v. Hoffman, 330 Ill. 413.

In the case at bar it is obvious that the claim or cause of action for wrongful death of a child is not the same as the claim or cause of action for Mrs. Smith's personal injuries. The bar, if any, must therefore be by way of estoppel by verdict, in which it must be shown that the identical question — i.e., whether the truck driver was guilty of negligence and the deceased driver guilty of wilful and wanton misconduct — was decided in the wrongful death case. One of the plaintiff's arguments to avoid estoppel is that since the verdict was a general one it might have been based upon a failure to find damages, rather than upon a failure to find liability, and that there was therefore no determination of the specific issue involved here.

We find it unnecessary to further consider this argument, since we think there is no identity of parties, within the meaning of the doctrine of res judicata. The basis of the doctrine is that the party to be affected, or someone with whom he is in privity, has litigated or has had an opportunity to litigate the same matter in a former action. (Hedlund v. Miner, 395 Ill. 217, 229-230; Newberry Library v. Board of Education, 387 Ill. 85.) The law is clear that one is not estopped or barred by a prior adjudication if he was not a party to such action and does not stand in the relation of privy to one who was a party. Ohio National Life Ins. Co. v. Board of Education, 387 Ill. 159.

That Mrs. Smith was not a party to the wrongful death action is evident from the fact that she was not named as such therein, did not appear, and had no right to adduce testimony, cross-examine witnesses or otherwise control the prosecution thereof. (See Schafer v. Robillard, 370 Ill. 92; Orthwein v. Thomas, 127 Ill. 554, 571.) Nor was she in privity with the administrator of the children's estates, even though she was one of the next of kin and a beneficiary of the cause of action for wrongful death. A privy to a judgment is one whose succession to the rights of property thereby affected occurred after the institution of the particular suit, and from a party thereto. (Schafer v. Robillard, 370 Ill. 92; Orthwein v. Thomas, 127 Ill. 554.) Privity contemplates a mutual or successive relationship to the same property rights which were the subject matter of prior litigation. (Sweeting v. Campbell, 2 Ill.2d 491, 496.) Mrs. Smith did not acquire her rights in this action from the administrator of the children's estates, nor is her relationship to such rights either mutual with or successive to that of the administrator. He had no beneficial interest but possessed sole right of action or control over the litigation. Mrs. Smith, as next of kin, had no right of action or control over the litigation but merely possessed a beneficial interest in the proceeds. In the case at bar, the fact that Mrs. Smith was a beneficiary in the wrongful death case did not make her a plaintiff therein. Nor did she succeed to the right of action or in any other manner become privy thereto so as to bring her within the rule of estoppel by verdict.

It follows from what we have said that the circuit court erred in granting summary judgment for defendants, and the Appellate Court erred in affirming such judgment. Each judgment is reversed and the cause is remanded to the circuit court of Champaign County with directions to deny the motion for summary judgment.

Reversed and remanded, with directions.

Mr. JUSTICE SCHAEFER, dissenting:

The earlier action, for wrongful death, was prosecuted for the benefit of this plaintiff and in her interest. The administrator, as nominal plaintiff, had no interest in the claim asserted, either personally or on behalf of the estates of the decedents. He represented only the right of this plaintiff and her minor son, who were the beneficiaries under the Wrongful Death Act. In legal effect, the administrator was no more than an attorney in fact for the prosecution of this plaintiff's claim. Whether the defendants were at fault in the identical respects charged in the complaint in this case has already been fully litigated and adjudged in a suit brought on this plaintiff's behalf. She should not now be permitted to relitigate the matters there decided.

The aspect of privity discussed in Sweeting v. Campbell, 2 Ill.2d 491, 496, was the aspect of that concept which was relevant to the facts of that case. By now applying the limited aspect of privity which was there involved as a comprehensive definition, the majority confines the effect of a judgment to those persons formally named as parties and to others who either succeed to the interests adjudged or occupy some mutual relationship with the formal parties. The effect of the incomplete definition is to write out of the law the entire doctrine of virtual representation. Plainly, a person is bound by the result of litigation fairly conducted in his behalf by an authorized representative. Whether the representative is a trustee, guardian, conservator, executor, administrator, ...


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