Appeal from the Circuit Court of Piatt County; the Hon. BIRCH
E. MORGAN, Judge, presiding. Reversed and remanded for a new
Rehearing denied and opinion modified October 13, 1967.
This appeal arises from denial of a post-trial motion following entry of judgments on jury verdicts in favor of plaintiffs. The plaintiff Joe H. Pritchett, administrator of the estate of Franklin Gale Bowen, recovered damages for wrongful death of Bowen; Betty L. Bowen, widow of Franklin, recovered last expenses, and Howard Young, Sr., recovered damages to his tractor and semitrailer which were being operated by Bowen. The defendant Steinker Trucking Company, Inc., was denied recovery on its counterclaim for property damage to its tractor and trailer, and Mary Jane Miller, administrator of its deceased driver, was denied recovery on her intervening counterclaim for damages both for wrongful death of her decedent, Paul Richard Miller, and for his last expenses. The errors alleged are:
1. That the trial court erred in striking defendant Steinker's affirmative defense that plaintiffs were estopped to try the issue of Miller's negligence by the verdict and judgment in a former proceeding arising out of the same transaction;
2. That the verdict of the jury was against the manifest weight of the evidence;
3. That plaintiff's expert witness improperly was permitted to give an opinion on the manner of the happening of the collisions involved in the proceedings;
4. That the trial court erred in allowing testimony that plaintiff's decedent was a person of careful habits;
5. That the trial court erred in not granting a new trial on the basis of newly discovered evidence.
Only the first ground of alleged error would end the controversy without the necessity of a new trial.
The collisions out of which the various claims of these parties arise have been before this court before, Miller v. Pillsbury Co., 56 Ill. App.2d 403, 206 N.E.2d 272 (4th Dist 1965), and in the Supreme Court of Illinois, 33 Ill.2d 514, 211 N.E.2d 733 (1965). The collisions occurred on U.S. Route 36 between a tractor-trailer unit full of hogs driven by Miller for Steinker Trucking Company, Inc., in a westerly direction, and two semitrailer trucks leased by Young to Pillsbury Company, being driven east. The first event was a sideswipe collision between Miller's vehicle and the Pillsbury truck driven by Mack Pargin, followed by a head-on collision between Miller's truck and the following Pillsbury truck being driven by Bowen. Both Miller and Bowen were killed. Extensive damage was done to Pillsbury cargo in the trailer of Young's truck which was driven by Bowen and leased to Pillsbury. Young suffered a total loss of the value of that equipment. Steinker, likewise, lost the value of the hogs and the equipment Miller was driving. The center line of Route 36 is the dividing line between Moultrie County on the south and Piatt County on the north. In the former case, tried in Moultrie County, Miller's administrator sued Pillsbury and Pargin, and recovered a verdict for wrongful death. Also in that case, Pillsbury lost a counterclaim for damage to its cargo in the trailer of the truck driven by Bowen. Because of the Moultrie County verdicts and judgments, defendants contend that Bowen's administrator is estopped to litigate, in this suit, the issue of Miller's negligence.
The verdicts in the two suits on that issue are patently in conflict. In Miller v. Pillsbury Co., Miller's conduct was directly in issue as to whether he was using ordinary care for his own safety at the time of the collisions and as to whether he was negligent with respect to the goods of Pillsbury. In this suit, Miller's administrator is not a defendant but the theory of recovery against his employer Steinker is based upon respondeat superior only, as Steinker is sought to be held responsible for the same conduct of Miller previously passed upon favorably to Miller's administrator by the jury in the former case.
More than mere identity of issues is required to impose estoppel. A concomitant part of that doctrine is the requirement that there be such a relationship between the party against whom the estoppel is asserted and a party in the former proceedings that the interests of justice require the result of the former proceedings to control, for all time, a discussion of the particular issue. Situations upon which the doctrine has been held to operate seem to fall into categories, but in the particular area under discussion no label is available which permits summary disposition of this phase of this appeal. Defendants assert that the relationship between Pillsbury and Bowen, its employee, and Pillsbury and Young, its lessor, at the time of these events, was such that the doctrine applies.
Cases have been cited which hold that a verdict in favor of a principal bar a later suit against an employee where the employee's conduct was the basis of the alleged liability of the principal. Chief among these is Spitz v. BeMac Transp. Co., 334 Ill. App. 508, 79 N.E.2d 859 (3rd Dist 1948). That doctrine does not apply here because Bowen, while an employee of Pillsbury and involved in the transaction, was not the employee whose conduct imposed liability upon Pillsbury under the doctrine of respondeat superior the conduct in issue in the former proceeding was that of another Pillsbury employee, Mark Pargin. Also, although Pillsbury would have been required to prove due care of its employees in order to recover damages for its cargo loss as a counterplaintiff in the former action, the loss of that action by Pillsbury does not mean that the verdict in the former case reached a result which passed upon Bowen's conduct. That verdict could have resulted from a determination (a) that Miller was not negligent or (b) that Pargin's negligence was the sole proximate cause of the accident.
Without a showing that the particular issue was passed upon by the former jury, estoppel cannot apply. Voss Truck Lines, Inc. v. Pike, 350 Ill. App. 528, 113 N.E.2d 202 (3rd Dist 1953). Although defendant's contention here is that the adjudication of nonnegligence of its driver in the former trial is binding upon the parties here, that contention is based upon an allegation that these present plaintiffs' interests were represented by the parties defendant at the former trial. In Voss Truck Lines, Inc., it was contended that a former trial between related parties had settled all the issues between the parties to the second litigation. The facts were that one Curtis owned a tractor unit leased to Voss to pull a semitrailer unit, the rig to be operated by a driver named Price. This unit was involved in a collision with a truck owned by Pike and driven by Howard. The collision resulted in two lawsuits. The first was filed in McLean County wherein Voss' driver, Price, sued for his injuries naming Pike defendant as the employer of Howard. Pike filed a counterclaim for property damage to his truck, naming Voss Truck Lines, Inc., Price and Curtis as counterdefendants. Both principals, Voss and Pike, admitted the agency of their drivers at the time of the collision. This suit was tried to a verdict in favor of Price, and Pike lost his counterclaim. The second lawsuit was filed in Sangamon County. Voss Truck Lines, Inc., was plaintiff seeking recovery of its property damage to the trailer, and coplaintiff was Curtis seeking recovery of the value of his tractor unit. Defendants were Pike and the personal representative of his driver Howard. Plaintiffs in the second suit, following final judgment in the first, moved for judgment based upon an alleged estoppel of defendants to litigate the second case, having lost the first. In reversing a judgment for plaintiffs granted by the trial court on this theory, it was held that despite the fact that identity of parties was the same in the second suit as the first, the plaintiffs in the second suit could not claim estoppel on the part of Pike to litigate the issue of contributory negligence by Voss on the theory that his driver's recovery in the former proceeding settled the issue. The court pointed out, ". . . the lack of contributory negligence ...