Lustik v. Rankila

Otis, Justice. This lawsuit is brought to recover damages for personal injuries sustained by appellant, Mary Jane Lustik, as a result of a head-on collision between vehicles driven by her and by decedent, Ruth Ran-kila. Previously an action was brought against Mrs. Lustik under Minn. St. 573.02 for the death of Mrs. Rankila. A motion to consolidate the two proceedings was denied on the authority of Lambach v. Northwestern Refining Co. Inc. 261 Minn. 115 , 111 N. W. (2d) 345 , which held that because of the statutory presumption of decedent’s due care, § 602.04, it was improper to do so. 1 The court ordered that the trustee’s suit be given priority since it was first sued. The jury rendered a verdict awarding the trustee damages against Mrs. Lustik. 2 In the present litigation Mrs. Rankila’s special administrator moved for summary judgment, claiming that the issue of Mrs. Lustik’s contributory negligence was res judicata and that the verdict estopped her from asserting this claim. The trial court granted the motion and Mrs. Lustik appeals. In essence it is the position of appellant that the doctrine of estoppel *517 by verdict is not applicable because (1) the estoppel is not mutual; (2) the issues are not the same; (3) the parties are not identical and do not have privity; (4) the inability to counterclaim gives an arbitrary and unfair advantage to the first person suing; and (5) under Minn. Const, art. 1, § 8, there is no right without a remedy. 3 We have carefully considered all of appellant’s contentions and acknowledge that the statutory presumption of decedent’s due care may lead to an unseemly race to the courthouse, as Mr. Chief Justice Knutson predicted in the Lambach case. However, as long as Minn. St. 602.04 remains on the books, litigants will continue to find themselves burdened with duplicated litigation and with the necessity for maneuvering for the tactical advantage of being the first to trial. 4 Appellant concedes that in the prior action for death by wrongful act the jury necessarily found she was negligent and that her negligence was a proximate cause of the accident. However, she seeks to avoid the effect of this determination by urging that in a subsequent action, without decedent’s presumption of due care, Mrs. Rankila’s negligence might be found to have insulated prior negligence on the part of Mrs. Lustik. It appears to be Mrs. Lustik’s contention that the so-called “last clear chance” doctrine would now be available to her and that the verdict against her in the action for death by wrongful act does not therefore create an estoppel because the issues in the *518 first action were decided under different principles of law. We do not agree. There is no showing that the evidence in either action would support this theory. The conclusion is inescapable that whether or not Mrs. Rankila is now found to be negligent, there has already been a judicial determination in proceedings to which Mrs. Lustik was a party establishing as a fact that Mrs. Lustik was herself guilty of negligence which was a proximate cause of this collision. The court’s charge on the issue of Mrs. Lustik’s negligence would be precisely the same in this litigation as it was in the first action. 5 The test is: Did the first action necessarily decide that Mrs. Lustik was guilty of negligence which proximately caused the accident and the injuries for which she here seeks damages? 6 Obviously, the answer is in the affirmative. Her negligence has already been thoroughly litigated. There has been no appeal. There is no principle of law which is not common to both actions on the decisive question of Mrs. Lustik’s contributory negligence. She is therefore barred from recovering. The dissent written by Mr. Justice Thomas Gallagher states that appellant is entitled to a second trial because she had no opportunity to litigate her affirmative claims without the statutory presumption of § 602.04 “against her.” We are not concerned with dbcedent’s presumption of due care but only with plaintiff’s lack of care. Section 602.04 is not a sword but a shield. It has no bearing on any negligence except that of decedent and no application to the issue of Mrs. Lustik’s contributory negligence. An interpretation of TePoel v. Larson, 236 Minn. 482 , 53 N. W. (2d) 468 , has been suggested which we believe is at complete variance with what that opinion holds. In discussing the decedent’s *519 presumption of due care, this court stated in the TePoel decision ( 236 Minn. 492 , 53 N. W. [2d] 473): “* * * The court’s instruction on the issue of contributory negligence, if properly given, will require a finding against defendant if the evidence is in balance or fails to preponderate in his favor. The presumption cannot and should not be permitted to cast any greater burden upon defendant than he already has under such instructions.” (Italics supplied.) The “finding against defendant” and the “burden upon defendant” to which we referred in that opinion had only to do with a finding against defendant and his burden in connection with proving decedent’s contributory negligence and had no bearing whatever on the- issue of defendant’s own negligence in that case. It is contended that estoppel by verdict is not applicable unless the adversary of the party against whom the doctrine is invoked appears in the same capacity in both actions. This is not the law of Minnesota. What we have held in Olson v. Linster, 259 Minn. 189 , 107 N. W. (2d) 49 , and in Schmitt v. Emery, 215 Minn. 288, 290 , 9 N. W. (2d) 777, 779 , is that the doctrine may not be invoked against a party to the subsequent action who appears in a different capacity from the losing party in the initial litigation. This fundamental distinction is required by due process which prevents the result of a prior suit from binding adversely a litigant who was a stranger to it and had no opportunity to be heard. 7 But our court and other jurisdictions do not require that in a second action one who invokes the doctrine of estoppel in his own favor against an adversary who appeared in identical capacities in both suits must also have been a party to the first action. In Gammel v. Ernst & Ernst, 245 Minn. 249 , 72 N. W. (2d) 364 , 54 A. L. R. (2d) 316, we squarely held that es-toppel by prior verdict was available in favor not only of a party who appeared in a different capacity but also of one who was a complete stranger to the prior litigation. There we said ( 245 Minn. 256 , 72 N. W. [2d] 369): *520 “* * * While the present defendants were not parties to that action, it is the same issue — dependent on the same evidence — that plaintiff seeks to litigate once more in the present proceedings. Defendants assert that the judgment in the prior action constitutes a bar thereon. They recognize the general rule that a former judgment is not res judicata in a subsequent action unless the parties in the latter are the same or in privity with those in the former proceeding * * *; but submit authorities defining an exception to this rule and assert that the facts in the instant case bring it within such exception. * * * ij: # ‡ ‡ & “* * * We have recognized this exception to the doctrine of mutuality otherwise essential to res judicata * * *. “Based on the facts described and the decisions cited, we hold that on the issue of fraud plaintiff has had his day in court; that the issue has been fully litigated and determined; and in consequence that any attempt to relitigate it in the present proceedings is barred.” (Citations omitted.) In abandoning the strict rule of mutuality of estoppel, this court cited three leading cases on the subject: Bernhard v. Bank of America Nat. Trust & Sav. Assn. 19 Cal. (2d) 807, 122 P. (2d) 892 ; Coca Cola Co. v. Pepsi-Cola Co. 36 Del. 124 , 172 A. 260 ; and Bruszewski v. United States (3 Cir.) 181 F. (2d) 419. The test prescribed in Bernhard by the present Chief Justice, Roger Traynor, was this (19 Cal. [2d] 813, 122 P. [2d] 895 ): «* * * Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” In the instant case all three requirements have been met. The court in the Coca Cola case based its decision on considerations of public policy which demand an end to litigation where a party has had a full, free, and untrammeled opportunity to present facts pertinent to a decisive issue. That decision rejects the argument *521 that a litigant may have pursued his cause with less zeal in the first action than he might in the subsequent one. 8 The court in Bruszewski held that orderly judicial administration foreclosed a party from twice litigating the same issue despite a lack of mutuality if there had been a full and fair opportunity to be heard previously. Three other Federal cases discuss exhaustively the abandonment of mutuality as a prerequisite to the application of estoppel: Judge Charles dark in a dissent predating Bruszewski, Riordan v. Ferguson (2 Cir.) 147 F. (2d) 983, 988; and more recently opinions from the same court in Fleischer v. Paramount Pictures Corp. (2 Cir.) 329 F. (2d) 424, and Zdanok v. Glidden Co., Durkee Famous Foods Division (2 Cir.) 327 F. (2d) 944, 954. In Zdanok the court stated: “This doctrine of the need for mutuality of estoppels, criticized by Bentham 9 over a century ago as destitute of any semblance of rea *522 son, and as ‘a maxim which one would suppose to have found its way from the gaming-table to the bench,’ ibid. fn. 14, has been much eroded in recent years. Perhaps the leading federal decision is Judge Hastie’s in Bruszewski v. United States, * * * which this court followed in Adriaanse v. United States, * * *. We see no purpose in multiplying citations since it is recognized that the widest breach in the citadel of mutuality was rammed by Justice Traynor’s opinion in Bernhard v. Bank of America * * While Gammel, Coca Cola, and the Federal cases cited involved plaintiffs who brought successive suits against different defendants, the estoppel rule has been applied to plaintiffs who have not previously selected their forum but have been defendants in the prior actions. Two California cases have foreclosed litigation of issues which were decided adversely to plaintiffs in previous suits where they appeared as defendants, notwithstanding the fact that the defendants in the second action were not parties to the first action. San Francisco Unified School Dist. v. California Bldg. Maintenance Co. 162 Cal. App. (2d) 434, 328 P. (2d) 785 ; Abbott v. Western Nat. Ind. Co. 165 Cal. App. (2d) 302, 331 P. (2d) 997 . 10 Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14 , 9 N. E. (2d) 758, 112 A. L. R. 401, presented a situation nearly identical with that before us in the instant case. There, a car operator (the Rankila trustee) recovered damages against a truckdriver (Mrs. Lustik) and truck owner, who subsequently brought a separate suit against the car owner (the Rankila administrator), a stranger to the prior litigation. Although the defendant in the second action was sued *523 on the theory of vicarious or derivative liability, 11 it is significant that the New York court spoke in much broader terms than were necessary to invoke that exception to the rale requiring mutuality. The court said ( 275 N. Y. 18 , 9 N. E. [2d] 759): “Behind the phrase res judicata lies a rale of reason and practical necessity. One who has had his day in court should not be permitted to litigate the question anew. Although normally it is necessary that mutuality of estoppel exist, an exception is at times made where the party against whom the plea is raised was a party to the prior action and ‘had full opportunity to litigate the issue of its responsibility.’ ‡ ‡ ‡ “* * * And those defendants, now the plaintiffs in the case at bar, although they had a full opportunity to show their freedom from negligence, were found liable and are bound by the verdict against them. It is true that [defendant] Mary C. Emery, not being a party to the earlier actions, and not having had a chance to litigate her rights and liabilities, is not bound by the judgments entered therein, but, on the other hand, that is not a valid ground for allowing the plaintiffs to litigate anew the precise questions which were decided against them in a case in which they were parties.” (Italics supplied in part.) In the instant case, as in the Good Health Dairy Products case, Mrs. Lustik “had a full opportunity to show [her] freedom from negligence” but was nevertheless found negligent and is now bound by the verdict against her. For these reasons the trial court’s decision was correct and is affirmed. Affirmed. Minn. St. 602.04 reads: “In any action to recover damages for negligently causing the death of a person, it shall be presumed that any person whose death resulted from the occurrence giving rise to the action was, at the time of the commission of the alleged negligent act or acts, in the exercise of due care for his own safety. The jury shall be instructed of the existence of such presumption, and shall determine whether the presumption is rebutted by the evidence in the action.” It appears without dispute that in the trustee’s action the claims exceeded the limits of Mrs. Lustik’s liability policy, and she therefore retained her own counsel who collaborated with the liability carrier’s attorneys in presenting her defense. Minn. Const, art. 1, § 8, provides: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain justice freely and without purchase; completely and without denial; promptly and without delay, conformable to the laws.” As a practical device to minimize the impact of submitting, two different standards of negligence, and to avoid having damages presented by one side and not the other, it may be advisable hereafter to adopt a rule that under circumstances of this kind the surviving claimant’s contributory negligence and decedent’s own negligence shall first be tried in the survivor’s action on the question of decedent’s liability only. Such a procedure would achieve something approaching an equal footing for the survivor, free from conflicting presumptions, but would not necessarily prevent successive lawsuits. Mrs. Lustik acknowledges that the law is correctly stated in 10 Dunnell, Dig. (3 ed.) § 5162, thus: “* * * For a judgment to operate as an estoppel by verdict it must appear that the controlling facts presented in the second suit existed at the time of the former litigation and that the issue adjudicated in the first suit is the identical issue involved in the second suit; * * Wolfson v. Northern States Management Co. 221 Minn. 474, 479 , 22 N. W. (2d) 545, 548 . Coca Cola Co. v. Pepsi-Cola Co. 36 Del. 124, 130 , 172 A. 260, 262 . von Moschzisker, Res Judicata, 38 Yale L. J. 299, 302. The reference to Bentham is taken from Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stanford L. Rev. 281, 284,. note 6, as follows: “Bentham, Rationale of Judicial Evidence, in 7 Works of Jeremy Bentham 171 (Bowring ed. 1843). Portions of Bentham’s comment have been extensively quoted and are therefore familiar. “ ‘Another curious rule is, that, as a judgment is not evidence against a stranger, the contrary judgment shall not be evidence for him. If the rule itself is a curious one, the reason given for it is still more so:— “Nobody can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary:” a maxim which one would suppose to have found its way from the gaming-table to the bench. If a party be benefited by one throw of the dice, he will, if the rules of fair play are observed, be prejudiced by another: but that the consequence should hold when applied to justice, is not equally clear. This rule of mutuality is destitute of even that semblance of reason, which there is for the rule concerning res inter alios acta. There is reason for saying that a man shall not lose his cause in consequence of the verdict given in a former proceeding to which he was not a party; but there is no reason whatever for saying that he shall not lose his cause in consequence of the verdict in a proceeding to which he was a party, merely because his adversary was not. It is right enough that a verdict obtained by A against B should not bar the claim of a third *522 party C; but that it should not be evidence in favour of C against B, seems the very height of absurdity. The only fragment of a reason which we can find in the books, having the least pretension to rationality, is this, — that C, the party who gives the verdict in evidence, may have been one of the witnesses by means of whose testimony it was obtained. The inconclusiveness of this reason we have already seen.’ Ibid.” See, also, Collins, Collateral Estoppel in Favor of Nonparties: A Defendant’s “Fringe Benefit,” 41 Ore. L. Rev. 30, 35; Comment, 35 Yale L. J. 611; 27 Brooklyn L. Rev. 174. See, Myhra v. Park, 193 Minn. 290 , 258 N. W. 515 ; Miller v. Simons, 239 Minn. 523, 528 , 59 N. W. (2d) 837, 840 ; Christianson v. Hager, 242 Minn. 41, 43 , 64 N. W. (2d) 35, 36 .