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Franciscy v. Jordan

OCTOBER 14, 1963.

BETTY ANN FRANCISCY, ADMINISTRATOR OF THE ESTATE OF RUDOLPH FRANCISCY, DECEASED, PLAINTIFF-APPELLEE,

v.

BLANCHE DALTON JORDAN, ADMINISTRATOR OF THE ESTATE OF RICHARD H. JORDAN, DECEASED, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of DuPage County; the Hon. MEL ABRAHAMSON, Judge, presiding. Reversed.

CROW, P.J.

The defendant, Blanche Dalton Jordan, Administrator of the Estate of Richard H. Jordan, deceased, appeals from a judgment for $10,000 entered in the Circuit Court of DuPage County in favor of the plaintiff, Betty Ann Franciscy, Administrator of the Estate of Rudolph Franciscy, deceased, in this wrongful death action growing out of an automobile collision, in which appeal the defendant asserts the basic issue is whether under the doctrine of res judicata or estoppel by verdict the plaintiff is estopped from maintaining this action by virtue of prior verdicts and judgments in certain previous personal injuries suits in the Circuit Court of Kane County growing out of the same accident. The defendant also charges the Trial Court erred in refusing to admit certain testimony of passengers in the decedent Jordan's car of statements of Jordan immediately prior to the occurrence concerning the impending accident.

The plaintiff in this DuPage County suit, Betty Ann Franciscy, Administrator of the Estate of Rudolph Franciscy, deceased, on September 10, 1958, filed a wrongful death complaint against Blanche Dalton Jordan, Administrator of the Estate of Richard H. Jordan, deceased, charging, inter alia, various acts of negligence of the defendant's intestate, Richard H. Jordan, deceased, in the operation of an automobile on November 9, 1957, and alleging that the plaintiff's intestate, Rudolph Franciscy, deceased, was in the exercise of reasonable care, and that he left surviving him as his only heirs at law and next of kin, his widow, Betty Ann Franciscy, and Joy Lynn Franciscy, his daughter. The defendant's answer denied the material allegations thereof. The jury in this present case returned a verdict in favor of the plaintiff for $10,000, judgment was entered thereon, and this appeal is from that judgment, the defendant's motions for directed verdict and post-trial motion having been denied.

On November 9, 1957 Rudolph Franciscy and Richard H. Jordan were driving their respective automobiles on Route 59 in DuPage County, in opposite directions. With Jordan in his car were his son, Gerald, and a neighbor, Wesley Lemmons. With Franciscy in the car he was driving were his three brothers, Charles, George, and Paul, guest passengers. At or near the intersection of Route 59 and Aurora Road the cars collided. Both drivers, Franciscy and Jordan, were killed. All the passengers were injured. It will be unnecessary to state the facts of the occurrence itself in greater detail.

On October 17, 1958, before the instant case in DuPage County was reached for trial, the three Franciscy brothers, guest passengers in the Rudolph Franciscy car, Charles, George, and Paul Franciscy, each filed separate suits in the Circuit Court of Kane County for personal injuries against Betty Ann Franciscy, Administrator of the Estate of Rudolph Franciscy, deceased, and against Blanche Dalton Jordan, Administrator of the Estate of Richard H. Jordan, deceased, as co-defendants, in which Kane County suits the plaintiffs separately charged ordinary negligence of Richard H. Jordan, deceased, in the operation of his automobile, and separately charged Rudolph Franciscy, deceased, with wilful and wanton misconduct in the operation of the car he was driving. The answers of the two defendants, administrators, respectively, of the Franciscy estate, and the Jordan estate, denied all material allegations of the respective complaints. These separate individual Kane County suits by Charles, George, and Paul Franciscy, were consolidated for trial before a jury. The jury therein returned a special finding in answer to a special interrogatory, that Rudolph Franciscy, deceased, was guilty of wilful and wanton misconduct, and returned a general verdict in favor of the several plaintiffs against the therein defendant administrator of the estate of Rudolph Franciscy, deceased, assessing the plaintiffs' damages in the respective amounts of $53,600, $37,000, and $25,000, upon which judgments were entered, and which judgments were later satisfied, and the jury therein returned a general verdict finding the therein defendant administrator of the estate of Richard H. Jordan, deceased, not guilty, upon which judgments were entered.

When the judgments on the verdicts in the Kane County cases became final the defendant in the instant DuPage County case then raised and preserved the issue of res judicata or estoppel by verdict by first filing a motion to dismiss the present suit and, upon that being overruled, by an amendment to her answer herein setting up the prior adjudication as a special plea in bar. The plaintiff filed no reply to the amendment to the answer. The issue was further raised and preserved in the defendant's post-trial motion. Copies of the complaints and answers in the Kane County cases were attached to the defendant's motion to dismiss here and were stipulated to be admitted as a part of the record in this case.

The plaintiff in this DuPage County suit contends that the real plaintiffs in interest in the instant case were not parties and real defendants in the prior Kane County cases, and hence the doctrine of res judicata or estoppel by verdict does not apply, and that there was no error in refusing to admit the statement of the decedent Jordan. The plaintiff argues that Betty Ann Franciscy, individually, the widow, and Joy Lynn Franciscy, the child of Rudolph Franciscy, deceased, were not parties defendant in the prior Kane County suits, but they are the real plaintiffs in this DuPage County suit, and Betty Ann Franciscy, Administrator of the estate of the decedent Franciscy, is only a nominal plaintiff here. Hence, the plaintiff urges, the parties not being the same in the two causes of action, the doctrine of res judicata does not apply. The defendant contends that the main issue of the decedent Rudolph Franciscy's misconduct — wilful and wanton misconduct, or negligence, — having been adjudicated in the prior Kane County suits, that determination is now res judicata or an estoppel by verdict, and the present plaintiff Betty Ann Franciscy, administrator of the estate of Rudolph Franciscy, deceased, having been a defendant as such in the prior Kane County suits, is estopped and barred by the prior verdicts and judgments from relitigating the issue in this present suit.

The causes of action in the present suit in DuPage County and in the prior suits in Kane County are, of course, not identical. The issue of wilful and wanton misconduct, or negligence, of Rudolph Franciscy, deceased, driver of the Franciscy car involved, is, however, identical. The ostensible parties plaintiff and defendant in the present suit were co-defendants in the other actions in Kane County. Betty Ann Franciscy, administrator of the estate of Rudolph Franciscy, deceased, the plaintiff here, is represented by the same counsel as represented her as such administrator, as a defendant in the Kane County suits.

In the instant suit the plaintiff administrator, Betty Ann Franciscy, brought suit against the defendant administrator, Blanche Dalton Jordan, under the Injuries Act for the alleged wrongful death of Rudolph Franciscy, deceased, for the benefit of the widow and next of kin of the decedent Franciscy. The plaintiff necessarily alleged that her intestate was in the exercise of reasonable care, and that the defendant's intestate Jordan was guilty of negligence proximately contributing to cause the death of Rudolph Franciscy. In the other suits in Kane County, although they were brought by the three brothers, guest passengers, of the decedent Franciscy for personal injuries against the administrator of the decedent Franciscy's estate and against the administrator of the decedent Jordan's estate, the matter of the wilful and wanton misconduct, or negligence, of the decedent Franciscy was, necessarily, an issue. The plaintiffs therein had to allege, so far as Franciscy is concerned, that he was guilty of wilful and wanton misconduct, and they did so allege. The defendant therein administrator of the Franciscy estate denied that allegation.

[2-5] When some specific fact or question has been actually and directly in issue and has been adjudicated by a Court of competent jurisdiction in a former suit, and the same fact or question is again put in issue in a subsequent suit between parties or their privities who were parties in the former suit, its determination in the former suit, if properly presented and relied upon, is conclusive upon the parties and their privities in the latter suit, without regard to whether or not the cause of action is the same in both suits, and it cannot be again litigated in the subsequent suit upon the same or a different cause of action whatever may have been the nature of the first action or of the second action in which the estoppel is set up. Where the cause of action in the first suit is not the same as the cause of action in the second suit the Court's determination in the first suit on all questions actually decided is final and estops the parties and their privities from relitigating those questions in the second suit, — such is normally denominated as estoppel by verdict, is but another branch of the doctrine of res judicata, and rests on the same principles as res judicata: Rose v. Dolejs (1955), 7 Ill. App.2d 267, 129 N.E.2d 281; Hanna v. Read et al. (1882), 102 Ill. 596, — and it is sufficient for the purposes of the rule relating to a former adjudication, when relied on as an estoppel, that the parties be substantially the same; cf. Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 186 N.E. 152. The executor of a decedent in a wrongful death suit is barred by estoppel by verdict where the defendant therein had during the decedent's lifetime sued the decedent for property damages arising out of the same occurrence and had recovered a judgment against the decedent, — such was necessarily a determination of negligence of the decedent, — immediately prior to his decease the decedent could not have maintained an action for personal injuries growing out of the same collision, — the issue on which the wrongful death case is bottomed was the same issue of fact which lay at the base of the judgment recovered by the defendant against the decedent, — and since the executor's right to recover damages under the Injuries Act depends on the decedent's right, during his lifetime, to recover damages for injuries arising out of the same collision the executor cannot recover: Little v. Blue Goose Motor Coach Co. (1931), 346 Ill. 266, 178 N.E. 496.

In Stangle v. Chicago, R.I. & P.R. Co. (1961), 295 F.2d 789, CA 7th, a case arising under Illinois law in which the facts are rather close to those here involved, one Zank was a guest passenger in an auto driven by one Stangle. There was a collision between the Stangle car and the defendant's train. The passenger Zank and the auto driver Stangle were injured. The passenger Zank sued Stangle and the railroad, the jury answered a special interrogatory "yes" that the driver Stangle was guilty of wilful and wanton misconduct, and returned a general verdict against both defendants. The auto driver Stangle then sued the railroad. A summary judgment was entered for the defendant railroad on the grounds the prior adjudication in the prior suit estopped the plaintiff driver Stangle. The Court affirmed, saying that in Illinois parties need not be arrayed on opposite sides in the prior litigation nor formal issues be there drawn between them for collateral estoppel by verdict to apply, and held that the doctrine of collateral estoppel by verdict expressed in Rose et al. v. Dolejs, supra, was controlling.

And in Moran v. Lehman (1956) 7 Misc.2d 994, 157 NYS2d 684, Municipal Court, City of NY, the facts again were rather similar to the present case. Costello was a passenger in Moran's car. They both were injured in an accident involving other vehicles. Costello, the passenger, sued Moran, the auto driver, and the trustees of Surface Transportation Corp. and others. The verdict was against Moran, and in favor of the trustees of Surface etc. and certain other defendants. The auto driver Moran then brought this suit against the trustees of Surface etc. and others. The defendants' motion to amend their answer, plead res judicata, and for summary judgment, was granted and the complaint dismissed. The Court said, pp 686, 687:

"The question is therefore posed whether or not where one was a co-defendant in a prior action wherein the basic issue of negligence was tried and determined he is precluded from later relitigating the same issue in a suit wherein he is the plaintiff. . . ."

"This action turns on identical issue of negligence decided in the prior trial against the plaintiff Moran, co-defendant in that action, who, as a litigant, had a full opportunity in the prior action to establish his freedom from liability or the liability or culpability of ...


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