Garner v. Garner
151 S.E.2d 553
N.C.
1966
Check Treatment
Branch, J.

Thе sole question presented is whether the court below erred in dismissing plaintiff’s cause of action on the ground of res judicata.

The doctrine of res judicata applies to divorce actions as well as other civil cases. Thurston v. Thurston, 99 Mass. 39; Miller v. Miller, 92 Va. 196; Dwyer v. Dwyer, 26 Mo. App. 647; Ford v. Ford *666 (Okla.) 108 P. 366; Prall v. Prall, 50 S. 867 (Fla.); Lee: N. C. Family Law, Vol. 1, Sec. 51, p. 213—Joinder of Causes.

The appellant contends that the provision of G.S. 50-16 (as amended in 1955) granting the wife the remedy of independent action or cross-action where the husband sues for divorce, precludes applicatiоn of the principle of rés judicata. The statute provides, inter alia, that where a husband wrongfully abandons his wife, “the wife may institute an action in the Superior Court of the county in which the cause of action arose to have reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband, or she may set up such a cause of action as a cross action in any suit for divorce, either absolute or from bed and board.” Thus, the wife has an alternate method of procedure which she may use at her election. Beeson v. Beeson, 246 N.C. 330, 98 S.E. 2d 17. The right to choose procedure has no effect on the principles of res judicata. Therefore, this portion of the appellant’s ‍‌​​‌​​​​‌​‌​​​​‌​​​​​​​​​‌‌‌​​‌‌​​​​‌​‌‌‌​‌‌​‌​‌‍contention is without mеrit.

The appellant also contends that the court erred in dismissing the action because the second action was based on an alleged abandonment occurring at a date later than the abandonment alleged in the first action. This cоntention is not tenable.

“ ‘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 decidеd. . . . 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, 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 *667 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.

In the instant case plaintiff filed verified pleadings on 12 October 1965, stating “that the plaintiff abandoned the cross-complainant on the 29th day of November 1964, and has lived continuously separate and apart from the cross-complainant since that time.” The plaintiff stood by this allegation for more than eight months, and after the jury returned a verdict finding that the defendant did not abandon the plaintiff, she thrеe days later commenced an action based on the same cause, between the same parties, only stating а different date of abandonment. It is apparent that the plaintiff by exercising a reasonable degree of attentiоn or vigilance must have known the actual date of abandonment, if any. There is no evidence to he offered in the second action that was not available to her, by the exercise of ordinary diligence and attention, in the first action. After a full hearing on the merits, the jury returned a verdict against the plaintiff on the issue of abandonment, which she now seeks to re-litigate bеtween the same parties.

Finally, the plaintiff contends that the trial judge erred in dismissing the action without examining the evidence аnd the judge’s charge. This Court in the recent case of Powell v. Cross, 268 N.C. 134, 150 S.E. 2d 59, again recognized that when the prior action results in an involuntary nonsuit, the trial judge must consider evidence in the second action ‍‌​​‌​​​​‌​‌​​​​‌​​​​​​​​​‌‌‌​​‌‌​​​​‌​‌‌‌​‌‌​‌​‌‍so as to ascertain that not only the allegations but the evidence in the two actions are substantially identical. Also, in the case of Reid v. Holden, 242 N.C. 408, 88 S.E. 2d 125, the Court held: “And in determining whether a judgment constitutes res judicata, the judgment must be interpreted with reference to the pleadings, the evidence, the judge’s charge and the issues submitted to and answered by the jury.”

However, a distinction has been made where the identity of the parties is clearly established and it appears frоm the pleadings that a final judgment has determined substantially identical issues. One of the leading cases making this distinction is the case of Jenkins v. Fowler, 247 N.C. 111, 100 S.E. 2d 234, where the defendant offered the judgment roll of a prior action in evidence upon the plea of res judicata. The Court held: “A jury hаs heard the facts, determined them adversely to the present plaintiff, and judgment has been entered on that verdict. This judgment is cоnclusive and prevents further inquiry into the facts forming the basis of the present action. . . . There is nothing in Reid v. Holden, 242 N.C. 408, 88 S.E. 2d *668 125, in conflict with what is here ‍‌​​‌​​​​‌​‌​​​​‌​​​​​​​​​‌‌‌​​‌‌​​​​‌​‌‌‌​‌‌​‌​‌‍said. In that сase the plea of res judicata did not establish the identity of the parties or the identity of the controversial facts in the two suits. Here, the parties are identical, and an examination of the pleadings in the two suits shows that the issue of the defendants’ negligencе is the same in each suit.”

The Court ¿gain recognized these distinctions in the case of Walker v. Story, 256 N.C. 453, 124 S.E. 2d 113, where Bobbitt, J., speaking for the Court, said: “Refеrence is made in Hayes v. Ricard, supra (251 N.C. 485, 112 S.E. 2d 123), to the well established rule that ‘(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 plеadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.’ Bruton v. Light Co., 217 N.C. 1, 6 S.E. 2d 822. But this rule is applicable where, as held in Hayes v. Ricard, supra, the judgment in the prior action constitutes an adjudication thereof upon the merits, not to a judgment of involuntary nonsuit entered- on account of the insufficiency of plaintiff’s evidence.” (Emphasis ours)

The ultimate issue in both actions considered in the instant cаse was whether the defendant abandoned the plaintiff. ‍‌​​‌​​​​‌​‌​​​​‌​​​​​​​​​‌‌‌​​‌‌​​​​‌​‌‌‌​‌‌​‌​‌‍A final judgment adverse to the plaintiff was entered on this issue in the first action. This judgment is res judicata and constitutes a bar to the present action.

Affirmed.