Pennington v. Snow , 1970 Alas. LEXIS 199 ( 1970 )

MOODY, Superior Court Judge

(concurring in part and dissenting in part).

I dissent on the question of the requirement of mutuality. Apparently what the majority holds is that mutuality will not be required in all cases for the application of the doctrine of res judicata, but that each proposed use of the requirement will be examined on its merits to determine its desirability. In so doing, the majority follows Bernhard v. Bank of America National Trust and Savings Association, 19 Cal.2d 807, 122 P.2d 892 (1942) in so far as it holds that mutuality is not always a requirement for res judicata to be operative and follows the rule in United States v. United Air Lines, Inc., 216 F.Supp. 709 (E.D.Wash., D.Nev.1962) in holding that:

The rule of non-mutuality is not a general one but a limited one to be determined from the facts and circumstances in each case whether or not it should be applied. 216 F.Supp. at 726. With this portion of the decision I

agree. However, I cannot agree with the application of the rule in this case.

Without a showing in the Superior Court to the contrary, we should not assume that the issue concerning causation of the spontaneous abortion would have been resolved in another way had Snow and Rimmer been actual parties to the action in District Court. I cannot agree with the majority’s apparent assumption that the Penningtons would have put on more or better evidence or that their attorney would have been more tenacious in his proof of fact had Snow and Rimmer been parties to the action. It is true that while the Penningtons were seeking to recover $2,500.00 in the District Court action they were seeking to recover $75,000.00 in Count II and $50,000.00 in Count III in the Superior Court. However, the mere fact of the difference between the prayer clauses does not give rise to the assumption of a lower standard on the part of the trial attorney in the District Court.

I do not believe that the fact that the issue of causation was determined in the District Court rather than in a superior court is a relevant consideration in determining whether or not the issue is res ju-dicata. The District Court is just as competent to determine questions of fact as is any other court.

I would hold that res judicata should preclude the Penningtons from re-litigating the issue of causation.

I would affirm the Superior Court’s decision.