The opinion of the court was delivered by
This is аn appeal by the defendant, Ronald W. Hill, from an order sustaining plaintiff’s motion for partial summary judgment as to certain issues adjudicated in a prior trial between plaintiff’s husband and the defendant which resulted in a general verdict for the husband.
The plaintiff, Helen M. Adamson, died during the pendency of this appeal, and her husband, Alex A. Adamson, has been substituted in her stead. For clarity, however, Mrs. Adamson will continue to be referred to as plaintiff or wife throughout this opinion.
On June 12, 1964, Mrs. Adamson was a passenger in an automobilе driven by her husband. Both sustained personal injuries *483 when their automobile was involved in a collision with one driven by the defendant. The Adamsons filed their joint petition for damages, alleging the collision was caused by defendant’s negligence. Defendant filed separate answers to each claim and demanded separate jury trials. In each answer defendant denied he was negligent and alleged as an affirmative defense the collision was caused by the negligence of Mr. Adamson; as to the claim оf Mrs. Adamson, defendant alleged she was contributorily negligent in failing to keep a proper lookout for her own safety. At a pretrial conference counsel for the Adamsons elected to proceed to trial on the husband’s claim, and with leave of the court, the husband filed an amended petition. It is agreed that the claims of Mr. and Mrs. Adamson were thereafter treated as separate and distinct cases.
Subsequently, Mr. Adamson’s case was tried, but the jury was unable to agree on a verdict, and was discharged. A second trial resulted in a general verdict for the husband, and the judgment entered thereon was satisfied.
Mrs. Adamson then filed a motion for partial summary judgment, contending that the issue of defendant’s negligence and her husband’s contributory negligence had been determined adversely to defendant in the prior trial; that the matter was res judicata and not subject to relitigation.
In sustaining the plaintiff’s motion, the trial court took judicial notice of the proceedings in the husband’s case and found that the general verdict in favor of the husband rеsolved all issues relating to the negligence of both drivers, as well as causation, and the principle of res judicata precluded relitigation of those issues. Thereupon, the court entered judgment in plaintiff’s favor, finding that defendant was negligent, which negligence was the proximate cause of the collision between the two vehicles. In a letter to the attorneys, the trial judge made clear the only issues remaining for trial in Mrs. Adamson’s case were (1) her contributory negligence as a passenger, (2) what injuries shе sustained as a proximate result of the collision, and (3) the amount of damages.
Defendant contends that the prior judgment is in no way binding or conclusive on him in the present case, and that he is entitled to a trial on all issues, including the issue of his own negligence. The plaintiff, on the other hand, urges that although she was not a party to the litigation in her husband’s case, she is nevertheless entitled to the benefit of the judgment adjudicating defendant’s *484 negligence and proximate cause. Of course, the issue of plaintiff’s contributory negligence remains to be determined even if the trial court’s ruling is sustained.
Thus, the question posed is whether or not a judgment for a plaintiff in an earlier action is res judicata, or conclusive, as to the issues of negligence and contributory negligenсe of the respective drivers in a subsequent action growing out of the same accident by a different plaintiff against the same defendant.
Defendant seeks to support his position by relying on the general rule that a plea of res judicata may be assertеd only by a person who was a party or in privity with a party to the prior action. This in turn is based upon the doctrine of mutuality of estoppel; that is, a litigant can invoke the conclusive effect of the prior judgment only if he would have been bound by it had it gone the other way. (1R Moore’s Federal Practice § 0.412; James Civil Procedure [1965 Ed.] § 11.31; “Mutuality and Conclusiveness of Judgments,” 35 Tulane, L. R. 301; 30A Am. Jur., Judgments § 392; 50 C. J. S., Judgments § 765.) More simply stated, the requirement of mutuality means that unless both parties are bound by the prior judgment, neither may use it against the other in a subsequent action. (See, B. R. DeWitt, Inc. v. Hall, 19 N. Y. 2d 141, 278 N. Y. S. 2d 596.)
The Restatement expresses the mutuality requirement in language to the effect that a person who is not a party or privy to a party to an action in which a valid judgment other than a judgment in rem is rendered is not bound by or entitlеd to claim the benefits of an adjudication upon any matter decided in the action. (Restatement of Judgments § 93.)
Situations in which the doctrine of mutuality operates to prevent a litigant from invoking the conclusive effect of a prior judgment usually involve, in a technical sense, principles of collateral estoppel rather than
res judicata.
The distinction was noted in
Lawlor v. National Screen Service,
“. . . [U]nder the doctrine of res judicata, a judgment ‘on the merits’ in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine оf collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit. . . (p. 326.)
As apрlied to the facts in the instant case, the requirement of mutuality would preclude plaintiff, a stranger to her husband’s case, from asserting against the defendant the prior judgment relating to *485 the issues of the respective drivers’ negligence and causation, because she was not a party to that suit, and further, she would not have been bound had the judgment in the prior case gone the other way and exonerated the defendant from liability.
The majority of courts throughout the country recognize and apply tirе doctrine of mutuality, subject to certain exceptions not germane to the factual situation here. (30A Am. Jur., Judgments §392; 50 C.J.S., Judgments §765; Annos.
“Most courts of last resort which, have considered the question have continued to hold, in conformity with the rule announced in the earlier annotation [133 A. L. R. 181, 185], 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.”
The plaintiff here seeks to uphold the lower court’s ruling on the basis of the so-called
Bernhard
doctrine enunciated in
Bernhard v. Bank of
America,
“The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria for determining against whom a plea of res judicata may be asserted. The requirements of due process of law fоrbid 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. . . . 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.
“In determining the validity of a plea of res judicata three questions are pertinent: 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 *486 merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? . . .” (pp. 811-813.) (Emphasis added.)
The trial judge, in his memorandum opinion in the instant case, posed the three questions set forth in Bernhard, answered them affirmatively, and held the plea of res judicata, or more properly, collateral estoppel, could be invoked against the defendant.
It is interesting to note that even under the Bernhard doctrine plaintiff would nоt have been bound by a judgment in favor of defendant in the prior action, because plaintiff, being the party against whom the plea was being asserted, had not had her day in court.
We find that several other jurisdictions have voiced dissatisfaction with the requirement of mutuality and embraced the
Bernhard
doctrine
(e. g., Israel v. Wood Dolson Co.,
1 N. Y. 2d 116,
In actual practice, despite the broad terms in which the Bernhard doctrine was expressed by Justice Trаynor, it for the most part has been used defensively by one not a party to the first action against one who was a party to the first action and had his day in court upon the issues which the judgment decided, rather than applied affirmatively to establish negligence in fаvor of a nonparty to the previous litigation, such as in the instant case. (Sanderson v. Balfour, supra. Also, see, “Mutuality and Conclusiveness of Judgments,” 35 Tulane L. R. 301, 307; 1R Moore’s Federal Practice § 0.412 [1] p. 1807; James Civil Procedure [1965 Ed.] § 11.34, p. 601. Contra, B. R. DeWitt, Inc. v. Hall, supra; State of Maryland v. Capital Airlines, Inc., supra.) In other words, the courts are morе inclined to permit use of the doctrine as a “shield” by one not a party to the first action, but not as a “sword.”
The recent case of
Spettigue v. Mahoney,
“. . . If the Bernhard doctrine can be used offensively, then it is to a plaintiff’s advantage, when there are several persons injured in a single accident, to use his superior powers to keep his claim out of the legal arena until there has been another plaintiff’s judgment arising out of the same events.
“. . . We are reluctant to adopt a rule which would incline a plaintiff to maneuver to advance on the calendar another plaintiff’s case with more jury-appeal rather than seek consolidation with other plaintiffs to determine liability. . . .” (pp___)
The basic unfairness is demonstrated even more when the doctrine is applied to a situation where a great number of passengers are injured or killed in an airplane crash. Under such circumstances, the defendаnt airline, deprived of the protection afforded by the doctrine of mutuality, would be in the unenviable position of having to win each suit against it by defending on the merits, since judgment against one plaintiff would not bar another; but if the defendant lost one suit on the mеrits, it would be precluded from defending on the merits all other suits against it which had not yet proceeded to judgment. Further, we are unimpressed with the argument advanced by some proponents of the doctrine that its application will serve the public intеrest by minimizing litigation. (See, State of Maryland v. Capital Airlines, Inc., supra; “Mutuality and Conclusiveness of Judgments,” 35 Tulane L. R. 301, 310, 311; IB Moore’s Federal Practice §0.412 [1]; James Civil Procedure [1965 Ed.] §11.34.)
In a factual situation such as is presented here we find no compelling reason to depart from our prior law. We havе long followed the rule that an issue is
res judicata
only when there is a concurrence of four conditions, namely, (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made.
(McDonald v. Joint Rural High School District No. 9,
We hold that the plaintiff herein is not entitled to the benefit of the adjudication of defendant’s negligence and proximate cause in her husband’s case. The prior judgment is in no way binding or conclusive, and the parties in the present action are entitled to a trial on all issues.
The judgment of the lower court is reversed and the case remanded with directions to proceed in accordance with the views expressed in this opinion.