Nevarov v. Caldwell

Plaintiffs Nevarov appeal from judgment upon verdict for defendant Caldwell in a personal injury action, urging errors of law as the basis for reversal. The accident occurred on the Ridge Route, a four-lane highway,

At the first trial James Nevarov, a minor, was a eoplaintiff with his parents, John and Anna. No claim of contributory negligence was made against him and judgment went in his favor but against his parents. James’ judgment became final and was satisfied. A new trial was granted the parents with no limitation upon the issues to be tried.

At the second trial, and here, the parents claim that the judgment in favor of James establishes conclusively in their favor the issue of negligence on the part of defendant Caldwell. They rely upon Bernhard v. Bank of America, 19 Cal. 2d 807 [ 122 P.2d 892 ], French v. Rishell, 40 Cal.2d 477 [ 254 P.2d 26 ], and Garcia v. Garcia, 148 Cal.App.2d 147 [ 306 P.2d 80 ], to support the argument that the judgment against Caldwell in James’ case is admissible and conclusive against Caldwell upon the issue of his negligence because he was a party to James’ action and mutuality is no longer of the essence of res judicata in this state. On this basis appellants urge that it was prejudicial error to submit to the jury the question of Caldwell’s negligence and to fail to instruct them that that issue was established against him. Respondent makes a vigorous argument that the Bernhard case is not here applicable. In any event that decision plainly goes no further than to establish negligence of defendant (if it goes that far) and cannot have any bearing upon the issue of John Nevarov’s contributory negligence, an issue here present but absent from James’ case.

If the Bernhard doctrine is here applicable, plaintiffs were entitled to the requested instruction (for which evidentiary basis had been laid); its refusal would be error; the further question would then arise whether it resulted in a miscarriage of justice.

Bernhard v. Bank of America, supra, 19 Cal.2d 807 , broadly and definitely holds that mutuality of estoppel is not essential to application of res judicata either as a bar or in its other aspect, of collateral estoppel. At page 812 it is said: “The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. [Citations.] He is bound by that litigation only if he has been a party thereto or in privity with a party thereto. (Ibid.) There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.

“No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend.” At 813: “In the present ease,

therefore, the defendant is not precluded by lack of privity or of mutuality of estoppel from asserting the plea of res judicata against the plaintiff.” In that instance Mrs. Sather authorized one Cook to draw upon her account in Security-First National Bank. Cook, without authority, opened an account with defendant’s predecessor bank in the name of “Clara Sather by Charles 0. Cook.” Gradually her money was withdrawn from the Security account, redeposited in the other one, then transferred into a third account in defendant Bank standing in the name of Cook and his wife. After Mrs. Sather died Cook became executor, later resigned and presented his account which made no mention of the money in question. Helen Bernhard, and other beneficiaries of Mrs. Sather’s will, objected to the accounting because it did not

Unquestionably the negligence of defendant Caldwell which caused or contributed to James Nevarov’s injuries was identical with the negligence which his parents assert against defendant. In James’ case it was not complicated by any claim of contributory negligence on his part and would fasten liability upon defendant though it operated only as a contributing proximate cause concurring with negligence upon the part of James’ father, the appellant herein. With reference to the parents, however, defendant’s negligence must have been the sole proximate cause of their injuries or defendant cannot be held liable. Thus his negligence takes on a different aspect when viewed by a jury in reference to the respective claims of James and his parents. And whether it would be fair to apply the Bernhard doctrine in the parents’ case becomes a serious question. The judgment in favor of James was for $691.65; it was satisfied about 11 months after the parents had been granted a new trial upon their cause of action. If Bernhard is applicable to such a situation it would have been necessary for defendant to appeal from a judgment for an insignificant amount (compared to the claims of the parents) in order to keep the issue of his own negligence open for the second trial, to take an appeal which well might have been frivolous. Such a rule would be promotive of litigation, “would tend to defeat rather than to promote the objective of preventing vexatious litigation with its attendant expense both to the parties and the public” (quoting Taylor v. Hawkinson, 47 Cal.2d 893 , 897 [ 306 P.2d 797 ]). But this case should not be decided upon that narrow ground.

This action is part of a larger pattern which has developed in personal injury cases in Los Angeles County and probably

The Supreme Court has recognized that the public policy underlying res judicata dictates that the rule yield to considerations showing that its application would result unjustly. “But in rare cases a judgment may not be res judicata, when proper consideration is given to the policy underlying the doctrine, and there are rare instances in which it is not applied. In such cases it will not be applied so rigidly as to defeat the ends of justice or important considerations of policy.” (Greenfield v. Mather, 32 Cal.2d 23 , 35 [ 194 P.2d 1 ].) “ ‘The public policy underlying the principle of res judicata that there must be an end to litigation requires that the issues involved in a case be set at rest by a final judgment. . . . This policy must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which fully to present his case.’ (Jorgensen v. Jorgensen, 32 Cal.2d 13 , 18 [ 193 P.2d 728 ].)” (Estate of Charters, 46 Cal.2d 227 , 235 [ 293 P.2d 778 ].) To the same effect, see Guardianship of Di Carlo, 3 Cal.2d 225 , 235 [ 44 P.2d 562 , 99 A.L.R. 990 ]; Natural Soda Products Co. v. City of Los Angeles, 109 Cal.App.2d 440 , 446 [ 240 P.2d 993 ]; Estate of Spinosa, 117 Cal.App.2d 364 , 369-370 [ 255 P.2d 843 ].

In Leipert v. Honold, 39 Cal.2d 462 [ 247 P.2d 324 , 29 A.L.R.2d 1185 ], there were five actions for death and for personal injuries against the same defendants which resulted in small verdicts for the respective plaintiffs. Defendants’ motion for new trial was denied but plaintiffs Leiperts’ motion for new trial upon the sole issue of damages was granted as to Denny Leipert. This was held upon defendants’ appeal to be error because the record showed a series of compromise verdicts and hence there had been no actual decision of the major issue of liability. Mr. Justice Carter dissented, urging inter alia that, as there was no appeal in the death cases and those judgments had become final, ‘ ‘ [i] t would be idle to send the case back for a new trial on all of the issues, including liability, because the rule of res judicata would be applied, and there would be nothing left to try except damages—the very issue embraced in the limited new trial which the trial court granted. That res judicata is pertinent to the case is clear from the principles enunciated in Bernhard v. Bank of America, 19 Cal.2d 807 , 812 [ 122 P.2d 892 ], where this court said: ‘There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation. . . The identical issue is whether defendant driver was negligent and was his negligence the proximate cause of the collision. The answer is yes in the four death actions. There are four final judgments on the merits of that issue. The party against whom the prior adjudications are asserted is the same.” (P. 479.) It has been argued by at least one reviewer and by respondent herein that, as the majority opinion does not mention this argument or the Bernhard ease, the court impliedly and necessarily rejected its application to personal injury actions. We find, however, that the silence of the opinion merely reflects that of the briefs upon this subject and we think it cannot be said that Leipert does amount to a ruling upon the point. If there was no plea of res judicata before the court (and the briefs seem to indicate that such was the case), there was no occasion for the majority of the court to surmise that one would be interposed later, or to pass in advance upon the effect of such a supplemental plea if interposed. In fact, the court never reached the point urged

Taylor v. Hawkinson, supra, 47 Cal.2d 893 . Three verdicts in favor of plaintiffs in personal injury actions were found to have been for inadequate amounts. Only one plaintiff applied for a new trial, which was granted. Upon the new hearing plaintiff sought to limit the evidence to the issue of damages because the judgments in favor of the other plaintiffs had became final and hence operated as res judicata. The court, speaking through the author of the Bernhard opinion, held that all the verdicts were compromises and, as the issue of liability had not been determined, Bernhard was not controlling. At page 896, it is said: “Accordingly, had defendant or plaintiff’s husband and the driver moved for a new trial, it would have been granted, and their failure to do so was tantamount to accepting the jury’s compromise as their own. [Citations.] Regardless of the effectiveness of such a compromise in extinguishing the causes of action or in settling the rights directly involved therein [citations], it does not constitute such a determination of the issues involved as to render them res judicata where distinct rights are sought to be litigated in a separate cause of action. [Citations.] To hold otherwise would tend to defeat rather than to promote the objective of preventing vexatious litigation with its attendant expense both to the parties and the public. Defendant did not have his day in court during the first trial on the issue of liability, and plaintiff can now justify making that judgment binding upon him in her action only on the ground that he had an opportunity to attack it. Had he done so, more rather than less litigation would have ensued, and plaintiff would have gained nothing. Defendant did not vex her by seeking a redetermination of an issue once decided, but sought and secured only the right to have the issue of liability determined once after plaintiff by securing a new trial on all issues had established the propriety thereof.” This is but an application of the philosophy of the Greenfield case, supra, that res judicata is not to be applied “so rigidly as to defeat the ends of justice or important considerations of policy.” (32 Cal.2d at 35.)

It is a fair conclusion that the later rulings of that court evince no inclination to enlarge the application of Bern-hard to dissimilar situations or to give it universal import. The following cases cited by the litigants throw no additional light upon our present problem: French v. Rishell, supra, 40 Cal.2d 477 ; Garcia v. Garcia, supra, 148 Cal.App.2d 147 ; Quinn v. Litten, 148 Cal.App.2d 631 [ 307 P.2d 90 ].

, The general rule applicable to situations such as that presented at bar is thus stated in an annotation found in 133 American Law Reports, at 185: “With but few exceptions it has been held, in .cases in which the question has arisen, that a judgment for the plaintiff in an action growing out of an accident was not res judicata, or conclusive, as to issues of negligence or contributory negligence, in a subsequent action growing out of the same accident, by a different plaintiff against the same defendant.” Most of the decisions cited in support of the text expressly or impliedly rest upon the mutuality concept. Illustration 15, under section 93, Restatement of Law of Judgments, at page 466 says: “A and B are passengers in a car driven by C which collides with a car driven by D. A brings action against D and obtains judgment on the ground that D was negligent. . This finding is not res judicata in a subsequent proceeding brought by B against D.”

In determining whether this state should now depart from the stated rule (which really is an open question) the courts are required to pass upon a matter of public policy.

. Professor Brainerd Currie of the University of Chicago Law School discusses the Bernhard ease in an article entitled “Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine,” 9 Stanford Law Review 281. In the concluding paragraph, at page.322, he says: “The Bernhard decision is sound, not only on its facts but in its deliberate excursion beyond- the strict necessities of the case for the purpose of stamping out the requirement of mutuality.” The discussion starts with suppositious statements, as follows; “An express train speeds through the night. Suddenly, as it enters a curve,

“Let there be no doubt that the facts of our hypothetical case can be brought within the language of the Bernhard decision. . . . Tet I predict with confidence that the Supreme Court of California will not hold that the former judgment is res judicata in these circumstances.” The burden of the author’s argument is that the Bernhard doctrine should be confined to use for defensive purposes and should not be an instrument of offense'; in other words, should be used as a shield and not a sword.

Volume 57, Harvard Law Review, 98, 104: “Thus, where in a suit by A against B it is found that B is negligent, the judgment is not conclusive against B in a subsequent action by C who was hurt at the same time and by the same conduct. To apply the alleged tendency to this situation would mean that where a defendant was sued by forty people who were hurt in an explosion caused by the defendant, none of the

“The idea that in general such an alleged rule should not be applied is not based on any belief that there must be ‘ mutuality of estoppel. ’ It results from the general principles of our system of litigation from which the rules of res judicata have evolved. These principles would seem to require that a party to an action should risk the loss of rights or the creation of liabilities only with reference to his adversaries, except in the rare case where the limitation would adversely affect relations between the adversary and a third person. This exceptional situation exists where an action is brought unsuccessfully by or against a person who, if the judgment were against him, would be under a duty of indemnity or contribution. It does not exist where there is no such duty of indemnity or contribution or where the first action is brought by or against a person who is only secondarily liable. Identity of issue in the two cases is not sufficient to bind the unsuccessful party in reference to all subsequent adversaries.” We do not consider that Bernhard is confined to indemnity situations for its language shows that such is not the case.

The fact that the question of res judicata arose from a judgment favorable to a coplaintiff in a single case is not controlling in either direction, nor is the view entertained by the trial judge who granted the new trial to these appellants important. James’ cause of action was separate from that of the parents; it was presented in the same action merely as a matter of procedural convenience; it remained a separate cause and the judgment upon it was essentially separate, just as if obtained in an action brought by James alone. When the trial judge granted a new trial upon all issues he had exhausted his function in the premises; he had nothing to do with the evidence to be received upon the retrial; what he thought about that subject is immaterial. Moreover, James’ judgment had not become final at that time and it is unlikely that the judge had in mind any potential supplementary complaint alleging a subsequently accruing res judicata.

It becomes necessary in this ease to declare the public policy of this state upon the application of the rule of res judicata to multiple claims of different persons for personal injuries or property damage against a single defendant or set of defendants growing out of a single accident. We hold

There can be little doubt about defendant’s negligence in point of fact. The accident occurred on February 1, 1953, about 7:30 p. m., after dark. The scene is the Ridge Route, a short distance north of Newhall in Los Angeles County. Some witnesses say the highway was straight and some that it curved slightly to the west; all agree that it was downgrade. First Mrs. Odisio, southbound, lost control of her car for some unexplained reason; it skidded, turned around and came to rest on the west shoulder, according to her testimony, or on the outside southbound lane and partially blocking it, as related by most of the other witnesses. Mrs. Odisio said it was headed north when it came to rest; the police say it was headed west. At any rate she and her companion, Mrs. Avery, sat in the car after turning the headlights off and the parking lights on, and watched cars coming toward them from the north. It was dark and all had their headlights on. Two or three ears passed them without incident. Defendant’s car, a Nash, was in the inside lane (lane 2), and traveling at 60 to 70 miles an hour, according to Mrs. Odisio; at 40 to 50 miles in defendant’s own estimation. He was seen when some 200 to 300 feet to the north by Mrs. Odisio and Mrs. Avery. There were two cars running along together; one of them would be ahead at times and then they would run along side by side; both were swerving back and forth from right to left; Caldwell seemed to be trying to pass the other car, according to Mrs. Odisio. Both ladies said that Caldwell’s car went over onto the other side of the highway, came back and turning counterclockwise slammed into their car. It was stipulated that the Odisio automobile was damaged in the right side; also that defendant’s car hit it and was damaged on its own rear right side. At approximately the same time, and probably before collision with the Odisio vehicle, the front of defendant’s car hit the rear of plaintiffs’ car, a Chevrolet, which had pulled out of the outside southbound lane into the inner lane in order to pass the Odisio car. Both Caldwell and Nevarov lost control of their ears, which crossed the double line where the Nevarov car collided with the Bissiri Ford, traveling north in the inner northbound lane. Defendant’s car

Plaintiff, John W. Nevarov, testified that he had been traveling south in the outer lane, saw another car ahead of him pull around the Odisio car and pass it, looked in his rear view mirror, saw that all was clear behind, pulled into the center lane to pass Odisio and as he did so was hit in the rear end by a ear which proved to be defendant’s.

Mrs. Avery’s version was somewhat different from that of Mrs. Odisio, for the latter saw the cars coming down the road almost side by side, both swaying from lane to lane. Mrs. Avery saw three cars in a row in the inner lane; the last one, defendant’s, swung around to pass the others. Both saw it go to the center of the highway, then to the west shoulder, then back again, spin around counterclockwise and hit them on the right side, then cross the double line where Mrs. Avery heard another crash. She, like Mrs. Odisio, said defendant’s ear was going 65 to 70 miles an hour. Neither of them was able to describe the course of the Nevarov car because they were intent upon the approach of the Caldwell vehicle.

Defendant Caldwell testified that, going 40 to 50 miles an hour and driving in the center lane all the time, without swerving back and forth, he became aware of something going on ahead of him; saw tail lights of Mrs. Odisio’s car, which was across the highway headed west; he slowed his speed and could have stopped before reaching Odisio; another automobile ahead of him was slowing its speed; at this point his recollection of ensuing events ceased, according to his testimony. No head injury or unconsciousness or other cause for loss of memory through the accident having been shown, an inference of due care on his part could not arise. (Ireland v. Marsden, 108 Cal.App. 632 , 643-644 [ 291 P. 912 ] ; Bergman v. Bierman, 138 Cal.App.2d 692 , 695-696 [ 292 P.2d 623 ].) Defendant did testify that he saw no vehicle change lanes or cut in front of him before he lost his recollection, saw no car in front of him except Odisio’s, and had no knowledge of running into the Odisio automobile or the plaintiffs’ automobile; his first knowledge of the accident was the fact of being thrown out of his seat. It was stipulated that the front of his automobile hit the back of plaintiffs’. There is nothing in Caldwell’s testimony to overthrow the plain inference of negligence that arises from this combination of facts. The showing of his negligence is clear. We do not see that the verdict for defendant could have been based upon a finding of absence of

Appellants argue vigorously that a finding of contributory negligence on the part of Mr. Nevarov, the driver, is not sustainable upon this record; that as matter of law there was no contributory negligence on his part. This argument is built mainly upon his own testimony which is said to be uneontradieted. It must be considered in connection with other testimony and reasonable inferences therefrom, and the rule that the jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material. (Bechtold v. Bishop & Co., Inc., 16 Cal.2d 285 , 291-292 [ 105 P.2d 984 ] ; Estate of Pelton, 140 Cal.App.2d 512 , 516 [ 295 P.2d 483 ].)

Mrs. Nevarov was dozing in the car and unable to throw any light upon the accident; it was stipulated that Mrs. Caldwell, if called as a witness, would testify that she had no recollection of the accident. Other witnesses were unable to do much better with respect to Mr. Nevarov’s conduct. He testified that he was driving in the outside lane (No. 1) going 40 to 45 miles an hour; his Chevrolet was in good condition in all respects; he was following another car at a distance of about 300 feet; he noticed an obstacle ahead, looked into his mirror and saw lights behind; traffic was light; the car ahead skidded and almost stopped, then pulled over and started to pass the Odisio vehicle; plaintiff released the throttle, stuck his hand out, saw the lights behind, applied his brakes and started slowly to pull to the left to pass Odisio; the lights behind were “where he could notify them” and there was plenty of time for them to see him; the lights were back in the distance; they were about as far behind him as he was behind the ear immediately preceding him, which would be about 300 feet; plaintiff could have stopped in his lane (No. 1) before reaching the Odisio car, but he decided to follow the other vehicle around it; as he was making this move he

Appellants contend that it was error to give the following instruction at defendant’s request: “The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action, was

“Here no instruction on res ipsa loquitur was requested or given, and the case is not one in which the doctrine may be applied as a matter of law on the basis of undisputed facts.”

No reversible error appearing herein, the judgment is affirmed.

Fox, P. J., and Herndon, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied August 28, 1958. Carter, J., was of the opinion that the petition should be granted.