APPEAL from the Circuit Court of Cook County; the Hon. JEROME
LERNER, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE PERLIN delivered the opinion of the court:
This is an appeal from a judgment for property damage resulting from an automobile accident. The sole issue presented for review is whether the defense of res judicata may be waived by a defendant by his failure to affirmatively assert it in a timely fashion.
For reasons hereinafter set forth we affirm the judgment of the circuit court of Cook County.
On July 21, 1973, as a result of a collision between the automobile owned and operated by plaintiff and the automobile operated by defendant, plaintiff sustained personal injury and damage to his automobile. Plaintiff was insured under an automobile collision policy issued by the Inter-Insurance Exchange of the Chicago Motor Club, and pursuant thereto filed a claim for the damage to his automobile. Inter-Insurance Exchange paid plaintiff $1,100 on the claim.
On February 13, 1974, a nonverified complaint, entitled Jessie Thornton v. Auddie Williams (74 M1-12992), was filed in the circuit court of Cook County, Municipal Division, by attorneys Sneed & McCarthy on behalf of Inter-Insurance Exchange. The complaint, purportedly filed pursuant to the subrogation provisions of the automobile collision policy issue to plaintiff, sought to recover from defendant the monies paid to plaintiff by Inter-Insurance Exchange. *fn1 On June 3, 1974, a default judgment was entered against defendant in the amount of $1,803.16 plus costs. *fn2 Defendant's insurer, Kenilworth Insurance Company, compromised the judgment of $1,803.16 plus costs for the total sum of $1,000. This $1,000 was paid directly to Inter-Insurance Exchange. *fn3 Plaintiff had no knowledge of this action.
On September 13, 1974, plaintiff filed a complaint (74 L 14831) in the circuit court of Cook County, Law Division, to recover for personal injury and property damage resulting from the collision of July 21, 1973. On May 24, 1979, the second day of trial, defendant moved for a directed finding *fn4 on the property damage issue based upon the fact that there had already been a judgment for the damage to plaintiff's automobile and satisfaction thereof. This was the first time defendant brought to plaintiff's and the trial court's attention the existence of the other action (74 MI-12992). The trial court denied defendant's motion.
The uncontroverted testimony adduced at trial established the automobile's value to be $3,090. The jury returned a verdict in the amount of $2,000 (the difference between $3,090, the value of the automobile, and $1,100, the amount plaintiff received from Inter-Insurance Exchange) for damage to plaintiff's automobile; and a verdict of $5,000 for personal injury. Judgment was entered upon these verdicts. Although the personal injury judgment has been satisfied, the property damage judgment remains unsatisfied. Defendant appeals only from the property damage judgment. *fn5
Defendant contends that "under the doctrine of res judicata the [property damage] judgment should not have been entered because a judgment for the same property damage claim had been satisfied in a prior lawsuit which was brought by plaintiff's collision insurance carrier." On the second day of trial defendant moved to dismiss that portion of plaintiff's complaint pertaining to property damage. *fn6 Although the defendant's brief and record are silent, we assume that the basis for defendant's motion was subparagraph (d) of section 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(d)), which provides for dismissal if the cause of action is barred by a prior judgment.
• 1 Res judicata or estoppel by judgment is a bar which precludes the parties to an action from relitigating the same cause of action. Under the doctrine of res judicata, if a former suit was between the same parties and involved the same cause of action, the judgment in the former suit is conclusive not only as to all questions actually decided but as to all questions which might properly have been litigated and determined in that action. (City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 64 N.E.2d 450.) Res judicata is a rule of universal law pervading every well regulated system of jurisprudence and embodies two maxims of the common law: (1) public policy and necessity which makes it to the interest of the State that there should be an end to litigation; and (2) the hardship of the individual that he should be vexed twice for the same cause. Although it is recommended that the doctrine receive a liberal construction and should be applied without technical restrictions, it has also been recommended that the doctrine should not be applied so rigidly as to defeat the ends of justice. 50 C.J.S. Judgments § 592 (1947).
• 2 "In most states, both the insured and the insurer must claim any and all damages which they desire to recover in a single action brought against the particular tort-feasor, * * *." (6A J. Appleman, Insurance Law & Practice § 4100, at 341 (1972).) In order to avoid vexatious multiple suits against defendants there is a deeply ingrained bias in the law against the splitting of actions. However, it has also been recognized that the rule against splitting of actions is at odds with the modern insurance practice of subrogation of claims to insurance carriers. (See Ill. Rev. Stat. 1973, ch. 110, par. 22(3) and (4).) The case at bar is fairly typical of the standard practice in these matters, that is:
"An insured under an automobile collision policy who has collected for property damage under the policy ordinarily has no control over a subrogation action brought subsequently in his name by the insurer under the subrogation provision of the policy." Jenner and Tone, Pleading, Parties and Trial Practice, 50 Nw. U.L. Rev. 612 (1955).
Although our Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 1 et seq.) has recognized the potential for splitting of actions due to the subrogation of claims to insurance carriers and has attempted to provide that each party holding an interest shall have a right to his day in court, it has at the same time provided a defendant the means to protect himself from vexatious multiple litigation. This result is accomplished by section 48 of the Civil Practice Act, which provides in pertinent part:
"(1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the ...