Petrus v. Robbins , 196 Va. 322 ( 1954 )

Upon Rehearing

Miller, J.,

delivered the opinion of the court.

This litigation arose out of an accident that occurred when an automobile titled in the name of Michael Petrus and driven by his wife, Edna E. Petrus, was involved in a collision with an automobile owned and operated by Charles Robbins. Both vehicles were damaged, and Edna E. Petrus, the sole occupant of the car driven by her, alleged that she sustained personal injuries.

Charles Robbins, a non-resident of Virginia, sued Edna E. Petrus in the Civil and Police Court of the city of Alexandria for $252.90, alleged damages to his automobile. Process was served on Edna E. Petrus on June 9, 1952, and on June 18, 1952, her counsel entered an appearance, and the case was set for.trial on July 3, 1952.

On July 2, 1952, Edna E. Petrus filed a written “answer and counterclaim” in the action pending in the civil and police court. She denied that she had been negligent and asked judgment against Robbins for $307.70, “for damages done to her vehicle and for loss of use.”

On June 30, 1952, Edna E. Petrus and her husband, Michael Petrus, instituted action against Charles Robbins in the Corporation Court of the city of Alexandria. Process was served on the Commissioner of Motor Vehicles on July 2, 1952, and on that date a copy of the motion for judgment was mailed to Robbins at his home in New Jersey. In this motion for judgment plaintiffs alleged that the collision was due to Robbins’ negligence, and sought recovery of $20,000. Personal injuries to Edna E. Petrus and property damage were asserted, the property damage being set at $207.70.

On July 3, 1952, the action pending in the civil and police court was tried, and it does not appear that Robbins was then aware of the pendency of the suit that had been filed in the corporation court. Before any evidence was heard in the civil and police court, counsel stipulated and advised the court “that the bills for automobile damages shall be the amount of the damages to the automobiles.” After Robbins rested his case, Edna E. Petrus testified in her own behalf as to how the accident happened and as to who was the owner of the automobile that she was driving. Her testimony as to the ownership of the car was as follows:

“Q. Who owned the automobile?

“A. My husband. It was in his name.

“Q. It was his loss, wasn’t it?

“A. Well, his loss is my loss.

* * * * * * *

“Q. That was his?

“A. It was in his name but I use it all the time.”

When it was disclosed by her testimony that she did not own the automobile, and there being no testimony that she had suffered any pecuniary loss because of being deprived of its use, counsel for Robbins moved that her counterclaim be dismissed. No ruling was made on that motion, but the court thereafter heard the testimony of Lawrence W. Griffin, a witness to the accident called by Edna E. Petrus, who testified as to how the collision occurred. Edna E. Petrus was then recalled by her counsel, and the following examination by counsel and the court was had, and the following statement and ruling were made by the court:

“Q. In your conversation with the other driver after the accident, did you make any statement to him as to whether you saw him or not?

“A. Well, we didn’t go into details but I said to him, ‘You were on top of me before I saw you.’ But he made that sound as if I didn’t see him at all.

“The Court: You told that. All right, that is all I want to know.

“I will dismiss both of them: Deny judgment for the Plaintiff and deny the counterclaim. I don’t think either of them saw the other; * * *

“Mr. Dudley: Your Honor is dismissing it on the grounds both parties are negligent?

“The Court: Negligent, that is right.”

The counterclaim filed by Edna E. Petrus was thereupon endorsed by the judge “Counterclaim denied,” and he entered judgment on Robbins’ warrant in favor of Edna E. Petrus, the defendant, and the proceedings were terminated without recovery of damages by either party. No appeal was taken by either party, and the judgment has become final.

After Robbins’ motion to dismiss was made, which was not acted upon, the court heard further evidence concerning how the accident happened and denied recovery to both parties for the reason stated. The court having so adjudicated on the merits of the claims, no bills for repair of the cars were filed nor any evidence offered as to the amount of damages sustained by either vehicle.

On July 18, 1952, Charles Robbins filed a motion for a bill of particulars in the action pending in the corporation court, in which both Michael Petrus and Edna E. Petrus were then plaintiffs. He asked that their claims be respectively identified so that an intelligent answer to each might be given. On August 7, 1952, Michael Petrus and Edna E. Petrus filed a bill of particulars in which it is stated that the claim of Michael Petrus was for “damages to his automobile” in the sum of $207.70, and that the claim of Edna E. Petrus was damages for personal injuries in the amount of $19,700. In the bill of particulars it is also asserted that “Michaél Petrus was the owner of the automobile at the time of the accident,” and that “There was a gratuitous bailment.” It is thus definitely asserted that the car was owned by Michael Petrus but Edna E. Petrus was operating it as a gratuitous bailee when it was damaged.

On October 12, 1952, Charles Robbins filed a plea of res adjudicata and estoppel of record in the action in the corporation court. The plea set up the judgment rendered July 3, 1952, in the civil and police court, and asserted that the finding and judgment of that court on the respective claims of the parties necessarily decided that both litigants were guilty of negligence which contributed to the collision. The plea then asserted that such finding and judgment precluded Edna E. Petrus from maintaining her action for personal injuries and estopped Michael Petrus from asserting ownership of the vehicle that she was driving, and thus precluded both plaintiffs from maintaining their actions against Charles Robbins.

On September 15, 1952, an amended motion for judgment was filed by Edna E. Petrus, which dropped Michael Petrus as a party plaintiff and sought recovery for personal injuries only. No order was entered by the court formally filing this amended motion for judgment, yet it was treated by the parties as regularly filed and .the cause was therefore proceeded in with Edna E. Petrus as the sole party plaintiff.

On December 10, 1952, the court sustained the plea of res adjudicata and estoppel of record and entered a final order dismissing the motion for judgment.

At the instance of Edna E. Petrus we reversed that judgment on March 15, 1954, and awarded her a new trial, 195 Va. 861, 80 S. E. (2d) 543. Robbins thereupon filed a petition for rehearing, which was granted, and the case is now before us for the second time.

Edna E. Petrus contends that the judgment of the civil and police court does not preclude her from maintaining this action because the judgment of the civil and police court, a court of limited jurisdiction and not a court of record, cannot be invoked as a bar to her claim; that the amount of damages asserted for personal injuries exceeds the jurisdictional limit of that court; that her present claim of damages for personal injuries is a separate cause of action other than that asserted in her counterclaim; and that she was not the owner of the automobile, and thus had no cause of action for its damage.

No contention was made by either party in the briefs that Edna E. Petrus was a bailee of the car, nor did counsel make that contention in argument. Nowhere in the briefs are the words bailee, bailor or bailment to be found. Nor was our attention otherwise directed to that phase of the record, and therefore it was not considered or adverted to in the original opinion. However, upon examination of the bill of particulars, which is a part of the printed record, it is disclosed that both Edna E. Petrus and Michael Petrus asserted that the car was in the possession of Edna E. Petrus as bailee.

That statement in the pleading, if sustained by proof, goes to the merits of plaintiff’s present claim and strikes at her right to maintain this action. If the evidence sustains the admission and assertion, and if the fact that Edna E. Petrus was a bailee of the car prevents and estops her from maintaining this action, then the rights of the parties in that respect should be so adjudicated and determined on this rehearing. Trust Co. of Norfolk, Va., et al. v. Commonwealth, 151 Va. 883, at 901, 141 S. E. 825; 3 Am. Jur., Appeal and Error, § 810, p. 352.

From the statements made by Edna E. Petrus and Michael Petrus in the bill of particulars, and from the testimony given by the former at the trial in the civil and police court, it is conclusively established that though Michael Petrus was the owner of the automobile, his wife had possession of the vehicle as a gratuitous bailee at the time of the accident. The stipulation of counsel also shows that the only property damage sustained was that inflicted upon the car, and no pecuniary loss was shown to have resulted to Edna E. Petrus because of loss of use of the vehicle.

These facts being true, the dominant questions are: Was she entitled to maintain the action in the civil and police court for the damages to the car that she was operating as a bailee, and if so, does the judgment of that court, finding her guilty of negligence that efficiently contributed to the accident, bar her recovery in this action?

It is now settled law that a bailee in possession may sue for and recover judgment for the wrongful damage or destruction by another of the bailed property. Harris v. Howerton, 169 Va. 647, 194 S. E. 692; Jones v. Hines, 85 W. Va. 496, 102 S. E. 143; Yrisarri v. Clifford, 32 N. M. 1, 249 P. 1011; Books v. Goldstein, 160 Misc. 488, 289 N. Y. S. 1087; 6 Am. Jur., Bailments, §§ 302, 303, pp. 400, 401; 8 C. J. S., Bailments, § 39 b, p. 317; 2. M. J., Bailments, § 8, p. 678.

This principle applies to a gratuitous bailee, as well as to a bailee for hire.

“In Little v. Fossett, 34 Me. 545, 56 Am. Dec. 671, the court decided that the bailee may recover compensation for any conversion of or injury to the property bailed while in his possession. The court cited authorities dealing with gratuitous bailments and held that, if the suit were against a stranger, he was entitled to recover the value of the property, holding the balance beyond his own interest, in trust for the general owner.

“In a note to Union Pacific R. R. Co. v. Meyer, 76 Neb. 549, 107 N. W. 793, 14 Ann. Cas. 634, the note writer, discussing the right of a bailee to recover for injury to property says:

“ ‘The decisions are unanimous in holding that a bailee in possession of personal property may recover for injuries to or the loss of such property caused by the acts of persons other than the owner.’

“An examination of the note discloses that in many of the cases cited the plaintiffs were gratuitous bailees. For later cases, see note to Central R. R. of N. J. v. Bayway Refining Co., Ann. Cas. 1912D, 77.” Yrisarri v. Clifford, supra, at page 3. Industrial Inv. Co. v. King, 159 Miss. 491, 132 So. 333; Herries v. Belf 220 Mass. 243, 107 N. E. 944, Ann. Cas. 1917A 423; Baggett v. McCormack, 73 Miss. 552, 19 So. 89, 55 Am. St. Rep. 554; Walsh v. U. S. Tent & Aiming Co., 153 Ill. App. 229; 6 Am. Jur., Bailments, § 304, p. 402.

The civil and police court is concededly one of limited jurisdiction and not a court of record. However, both parties invoked its jurisdiction, and the claims for property damage asserted by each of them were cognizable in that court. § 16-90, Code of 1950. That being true, its final judgment on the merits may be invoked by a plea of res adjudicata or estoppel of record as a bar to further litigation between the same parties of the identical issues litigated and decided in that court. Johnson v. Rogers, 110 W. Va. 232, 157 S. E. 409. See note on this case in 37 W. Va. Law Quarterly 447. 30 Am. Jur., Judgments, § 163, p. 909, and 31 Am. Jur., Justices of the Peace, § 90, p. 756.

A plea of res adjudicata or estoppel of record may be successfully invoked upon a final judgment or decree of a court of inferior or limited jurisdiction, as well as upon the judgment or decree of a court of. record of general jurisdiction, provided the inferior court had jurisdiction of the parties and of the subject matter. Withers v. Sims, 80 Va. 651; 8 M. J., Former Adjudication or Res Adjudicata, § 81, p. 657; 30 Am. Jur., Judgments, § 163, p. 909; 50 C. J. S., Judgments, § 604, p. 28.

To have estoppel by judgment it is essential that the identical issue on which it is invoked was necessarily decided in the former cause. Chesapeake & Ohio Rwy. Co. v. Rison, 99 Va. 18, 39, 37 S. E. 320.

“Where there has been litigation which has in fact determined the point in the controversy, and there has been a final judgment, the judgment is conclusive. Where the subject matter is identical and the evidence is of necessity the same, the question cannot be reopened.” Eagle, etc. Ins. Co. v. Heller, 149 Va. 82, 99, 140 S. E. 314.

“It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action.” 30 Am. Jur., Judgments, § 178. Winters v. Bisaillon, 153 Or. 509, 57 P. (2d) 1095., 104 A. L. R. 968.

“ * * * [T]o render the judgment conclusive, it must appear by the record of the prior suit that the particular matter sought to be concluded was necessarily tried or determined, — that is, that the verdict could not have been rendered without deciding that matter; or it must be shown by extrinsic evidence, consistent with the record, that the verdict and judgment necessarily involved the consideration and determination of the matter.” Russell v. Place, 94 U. S. 606, 608, cited with approval in Withers v. Sims, supra, at 659. Talbot v. Virginia Electric & Power Co., 152 Va. 864, 148 S. E. 869; Patterson v. Anderson, etc., 194 Va. 557, 74 S. E. (2d) 195; Burks Pleading and Practice, 4th ed., Judgments, § 357, p. 673, 30 Am. Jur., Judgments, § 183, p. 928; 50 C. J. S., Judgments, § 728, p. 216, et seq.

Was the issue of whether or not Edna E. Petrus was guilty of negligence contributing to the accident necessarily decided when she was denied recovery on her counterclaim, and is that the identical issue presented in this litigation?

In the case of Nardolillo v. Carroll, 70 R. I. 133, 37 A. (2d) 659, the facts disclose that two automobiles owned and operated respectively by Nardolillo and Carroll were involved in a collision. An insurance company which had paid the damages sustained by Carroll’s car, filed a subrogation suit in Carroll’s name against Nardolillo and recovered. Nardolillo instituted action for personal injuries against Carroll which was not tried until the judgment in the subrogation action in Carroll’s name against Nardolillo had become final. Carroll invoked the defense of res adjudicatct against Nardolillo for damages to the latter’s car arising out of the same collision. In sustaining Carroll’s defense to Nardolillo’s action, the court said:

“The claim of the plaintiff that there is a difference in the issues in these cases, because in the instant case he sued to recover for personal injuries, whereas in the other case Carroll sought recovery for property damage only, is without merit. The nature of the damages and the amount of recovery were secondary questions, but the basic issue in each case was identical, viz., the issue whether the proximate cause of the damages to the respective parties was the negligence of the present plaintiff or that of the present defendant. Our approval of the verdict in the other case made a final determination of that issue in favor of the present defendant; and that determination is also decisive in his favor in the instant case.” At page 134.

It is said in Freitag v. Renshaw, 9 N. J. Misc. 1161, 157 A. 455, 456:

“It is settled that the cause of action in the district court for property damage differs from the cause of action here for personal injuries. Ochs v. Public Service Railway Co., supra. But the issue of fact of the negligence of plaintiff, Freitag, in the automobile accident involved in both suits, has been expressly adjudicated by the district court. That issue is concluded, so far as the same parties are concerned. Plaintiff, Freitag, is estopped by the record to question his contributory negligence in the present suit.”

“Where the action in which the judgment was rendered and in which it is asserted as an estoppel are upon different causes of action but between the same parties or their privies as to any matter actually in issue and determined in the action in which it was rendered, the judgment is conclusive and final in the action in which it is asserted, either on behalf of plaintiff to prove an essential fact or to disprove a defense, or on behalf of defendant to disprove an essential element of plaintiff’s case or to establish matters relied on in defense.” Henderson v. U. S. Radiator Corporation, 78 F. (2d) 674, 676. Good Health Dairy v. Emery, 275 N. Y. 14, 9 N. E. (2d) 758, 112 A. L. R. 401; Travelers Indemnity Co. v. Moore, 304 Ky. 456, 201 S. W. (2d) 7; Todhunter v. Smith, 219 Cal. 690, 28 P. (2d) 916.

The bills for damages to the respective automobiles were stipulated as the damages sustained by the parties. The court found that Robbins was guilty of negligence, which prevented his recovery, and unless Edna E. Petrus had been guilty of negligence that contributed to the accident, she should and would have recovered. In short, on the respective claims asserted by each party, the court found and decided against each party because each was guilty of negligence, and so announced. The failure of the court to sustain Robbins’ motion to dismiss the counterclaim and the announcement of the judge at the conclusion of the testimony bearing upon how the collision happened conclusively establish that recovery was denied to Edna E. Petrus because of her negligence. That identical issue of whether or not she was guilty of negligence that efficiently contributed to the collision is necessarily a controlling issue in her action for damages for personal injuries.

In Carter, et al. v. Hinkle, 189 Va. 1, 52 S. E. (2d) 135, relied upon by Edna E. Petrus, the facts, as well as the legal issue presented, were materially different from those here involved. For that reason the decision is not in point. There á taxicab owned and operated by Hinkle collided with an automobile owned by Smith and driven by his agent, Carter. Hinkle, who sustained both property damages and personal injuries, sued Smith in a trial justice court for $750 damages to the vehicle and $250 for loss of its use, and obtained a judgment for $1,000 that was paid and satisfied. Thereafter Hinkle sued Carter and Smith in the circuit court for the personal injuries sustained by him in the collision, and the defendants interposed a plea that the former judgment and its satisfaction constituted a bar to Hinkle’s right to sue for personal injuries sustained in the collision. The trial court overruled the plea, and Hinkle obtained a verdict and judgment for $1,000 for his personal injuries. Upon appeal we affirmed that judgment. In the course of the opinion it is shown that in the first case in the trial justice court, Hinkle prevailed, and for him to do so, Carter, the driver of Smith’s car, was necessarily found guilty of negligence. That was the essential issue. In the second case in the circuit court, Carter and Smith contended that Hinkle had but one cause of action and insisted that the judgment awarded Hinkle in the first case included and barred the second action. In the Carter v. Hinkle case, supra, we thus stated the legal issue presented:

“May one who has suffered both damage to his property and injury to his person as the result of a single wrongful act maintain two separate actions therefor, or is a judgment obtained in the first action a bar to the second?”

We adopted what is called the minority view, and by a divided court held that Hinkle had two separate and distinct causes of action, one for property damages and one for personal injuries, and that the judgment in his favor on his property damage cause of action was not a bar to his action for personal injuries.

Here Edna E. Petrus was denied recovery in the civil and police court on her claim for property damages because of her negligence. Whether or not it be held that she had one cause of action with two elements of damage, i.e., property damage and personal injury damage, or that she had two distinct causes of action, is immaterial. In either event she has been adjudged guilty of negligence that proximately caused the collision, and that is a bar to any right or rights of action that she had for damages of whatever nature suffered in the collision.

The plea of res adjudicata and estoppel of record interposed by Robbins was rightly sustained by the trial judge, and for the reasons stated herein, the judgment of the trial court is affirmed.

Affirmed.

Spratley and Whittle, JJ., dissenting.