Mason v. North Carolina State Highway Commission ( 1970 )

Graham, J.

The sole question presented by this appeal is whether the Industrial Commission erred in affirming the order of the Hearing Commissioner dismissing plaintiffs’ claims as barred on the grounds of res judicata.

We are of the opinion that the decision of the Industrial Commission was correct and must be affirmed.

“In order for a judgment to constitute res judicata in a subsequent action there must be identity of parties, subject matter, issues and relief demanded, . . .” Shaw v. Eaves, 262 N.C. 656, 661, 138 S.E. 2d 520. The claims here involved arise from the identical facts upon which recovery was originally sought. The parties are identical. The merits of the cases are identical. The type of relief sought is the same though plaintiffs now seek more substantial damages. The alleged acts of negligence are identical. The only difference is that here plaintiffs allege that the negligence was that of employees Howard Yernon Moore and Cornelius Perry rather than that of employee K. M. Duncan as alleged in affidavits filed in the original cases.

G.S. 143-297 provides that in all claims brought under the Tort Claims Act an affidavit must be filed in duplicate, setting forth among other things “[t]he name of the department, institution or agency of the State against which the claim is asserted, and the name of the State employee upon whose alleged negligence the claim is based; . . .” However, it is the agency and not the employee named who is a party. “The only claim authorized by the Tort Claims Antis a claim against the State agency. True, recovery, if any, must be based upon the actionable negligence of an employee of such agency while acting within the scope of his employment. However, recovery, if any, against the alleged negligent employee must be by common law action.” Wirth v. Bracey, 258 N.C. 505, 507, 508, 128 S.E. 2d 810.

The reason for requiring the negligent employee to be named in the affidavit is so that the department of the State against which claim is made will not have to investigate all of its employees, but only those alleged to have been negligent. Tucker v. Highway Commission, 247 N.C. 171, 100 S.E. 2d 514; Floyd v. Highway Commission, 241 N.C. 461, 85 S.E. 2d 703. If a claimant mistakenly names a wrong employee, his remedy is to address a motion to amend the affidavit to the sound discretion of the Industrial Commission. We note that in the original action, during the hearing before the Deputy Commissioner, the employees Howard Vernon Moore and Cornelius Perry were identified by defendant’s witnesses as the persons in charge of the placing of warning signals at the site of the alleged damage to claimants. However, claimants did not ask for a recess to interview these two employees, nor did they move for leave to amend their affidavits. Instead, upon appeal to the Full Commission, claimants moved for a new trial upon the grounds of newly discovered evidence. This motion the Full Commission, in its discretion, denied. See Mason v. Highway Commission, supra. To allow a claimant to get back into court under such circumstances and have unlimited opportunity to pursue the same cause of action against the same party opens the door for “infinite vexation.”

Res judicata as a bar to a subsequent action involves principles long established in this jurisdiction. In Garner v. Garner, 268 N.C. 664, 666, 667, 151 S.E. 2d 553, Branch, J., quoted, with approval, from former decisions of the Supreme Court as follows:

“ ‘ “The principles governing estoppels by judgment are established by a long line of decisions in this and other states, and we have no desire to take a new departure which will shake the long-settled law as to res judicata. This rule is thus stated in 1 Herman Estoppel, sec. 122, and is fortified by a long list of leading authorities there cited: ‘The judgment or decree of a court possessing competent jurisdiction is final as to the subject-matter thereby determined. The principle extends further. It is not only final as to matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have decided .... This extent of the rule can impose no hardship. It requires no more than a reasonable degree of vigilance and attention; a different course might be dangerous and often oppressive. It might tend to unsettle all the determinations of law and open a door for infinite vexation. The rule is founded on sound principle.’ ” ’ Moore v. Harkins, 179 N.C. 167, 101 S.E. 564. This principle was again recognized by this Court when Barnhill, J. (later C.J.), speaking for the Court in the case of Bruton v. Light Co., 217 N.C. 1, 6 S.E. 2d 622 [sic], said: ‘A judgment rendered in an action estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward. . . . The whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He can neither split up his claim nor divide the grounds of recovery.’ (Emphasis ours) See also Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E. 2d 909, and Wilson v. Hoyle, 263 N.C. 194, 139 S.E. 2d 206.”

Allegations of negligence on the part of the employees in question could and should have been made in the original actions. To hold otherwise would permit the first actions to be simply expensive and time consuming discovery proceedings to be used as a basis for future identical actions on the same claim.

Affirmed.

BROCK, J., concurs.