*1 App-140 20 Miar supra, p Rep Winsett, 396; Ill Am State jury then could inference, drew that 528. If the fairly gun properly use of the was conclude that the enterprise scope unlawful of the common within the responsible criminally defendant was and that the gun of the effec for tuating his confederates the use escape. Affirmed. n Allconcurred. AND EXCAVATING COMPANY TRUCKING v. VITO’S
HOWELL the Court Judgment Parties in Interest. 1. —Conclusive Effect: —Real party in .judgment is on real of a The conclusive effect nominal of reeord. interest and not on the Party Judgment in Interest —Nom- Effect —Real 2. —Conclusive Party inal Not Barred. one judgment against party, in interest will A the real not bar friend, action, as a next sueh was a nominal who personal losses. pursuing an action for his own from later Adjudication Involving Judgment .Negligence—Prior Another 3. — Statutory Subsequent Plaintiff. Plaintiff — negligence, adjudication in of defendant’s A a federal court necessarily injury plaintiff, personal one in a wrong- for litigation plaintiff-administrator’s claim a bar to personal where both the ful same defendant death out of the injury death actions arose collision.
[4-8] [1, 2, [3] 46 Am Jur 3] 46 Am Jur Am References 2d, Judgments Jur 2d, Judgments 2d, Judgments Points 394 ei §§ §§ 397, 398. 379-381, seq. Headnotes 529-534. v. Vito’s Howell Estoppel Estoppel Equitable Prin- —Collateral Discretion — ciples Statutory Plaintiff. — a rule dis- should be application of collateral principles and it should equitable decided on to be cretion *2 statutory plaintiff. represented a all who applied Controlling Estoppel Mutuality—Not Estoppel — —Collateral 5. Eactor. estoppel controlling and faetor Mutuality is not the has not defined Michigan although the emphasized estoppel, it has control collateral principles upon upon but rests depend estoppel not technicalities does justice. principles of broad Purpose. Estoppel Estoppel Tool — —Procedural —Collateral 6. designed procedural' to conserve estoppel is a tool Collateral to insure consistent decisions judicial and resources facts, use is to be indiscriminate. but its issues and same Ap- Estoppel Estoppel Subsequent Plaintiffs — —Collateral 7. — plication —Dis cretion. apply, col- apply, or not to had the discretion to Trial negligence against defendant, had a whose lateral by a eourt action already a federal been determined subsequent plaintiffs, all of whose plaintiff other than the damages of' same collision. for arose out claims Dissenting Opinion Quinn, J. Judgment. Estoppel Privity—Same Parties —Same — 8. primes an action in which Parties or their is-sought by judgment appear to be the must doctrine of judg- privies to the action which ment was obtained. Moore, E. Sub Oakland, Arthur Appeal 4, 1968, Lansing. at 2 December Divisio mitted n 1969. Decided No. November (Docket 4,868.) 1970. June See appeal, granted Leave to Mich himself, for Howell, William
Complaint by Howell, of the estate of Hattie de- 20 Mich App guardian and as L. ceased, James Howell, a minor, Excavating Company, and Yito’s Michigan corporation, per- for death and resulting injuries from a sonal truck-automobile col- summary plaintiff. Partial lision. for appeals. cross-appeals. Plaintiff Defendant Re- opinion. manded for reconsideration consistent with plaintiff. Wolh, L. for Richard Patterson, Barrett, & Patterson Whitfield, Mani- (Robert counsel), é White Waddell, G. koff defendant. T. Before: Kavanagh* Gr. Mill Quinn JJ. er,** *3 plaintiff’s T. G. In of 1964, June Kavanagh, injuries Hattie decedent, in Howell, from died received an automobile acciident. The defendant’s truck riding, killing struck the car in which she was her injuring daughter, and her Anna Sue Collins. The decedent’s husband, as of her guardian estate as and their minor instituted son, county a death action in the Oakland cir- pending However, cuit court. determination of this plaintiff’s daughter, suit, a Tennessee ob- resident, judgment against per- tained a the defendant for her injuries in sonal the United States District Court. judgment, plaintiff After that the here in moved partial summary judgment. circuit court the He argued negligence that the issue of defendant’s been in had determined the federal court and con- the art signed [*] [**] 6, Thomas work Circuit § to sit on the Court of 4, assigned and Judge, sitting Giles CLS 1961, Kavanagh, has been 600.225, Appeals completed” pursuant Justice as amended from of tlie Appeals February 27, by PA to Const assignment. 1969 “until Court, No 10. 1963, as- Howell v. Vito’s Cotjut Opinion op the damages all re- issue of was that the tended mained for determination. judge granted far it the motion so trial daughter, denied Anna hut Collins,
related the Sue remaining the motion as to the interests. party appeal cross-appeal the each asserts
On and ruling against position. in his court erred judgment defendant found the federal negligent pre- on the same facts and issues to he in case. The administrator now claims sented this finding negli- that the federal court gence of defendant’s estop denying from should the defendant that it not he here. The defendant contends retrying negligence. issue of De- argues parties nor identical fendant that the privity traditionally, in other without and, each identity privity or no there is therefore no of her
Anna Sue as one the heirs Collins, may parties in one of real mother, interest this suit the administrator of her mother’s estate. The conclusive effect of a the real is in interest and not on the nominal Gumienny record. 285Mich Hess was held judgment against party party that a the real in interest will not who was a nominal bar one (next pursuing friend) suit an later personal action for own losses. However, there another consideration which the equal judge might have found to he
trial quantum greater weight. quality Since depend upon frequently na- offense and defense *4 adjudication injury, the ture and seriousness the involving Anna earlier matter Sue Collins in the litigation necessarily he a bar to should administrator’s against death claim for [The same defendant. tech- 20 Mich Am? 140 (Jordan a different plaintiff v. C. A. ideally Roberts [1967], 235, affirming 2 Mich App and while Anna Collins is 113), probably Sue pecuni interested, this issue is matter arily generally re to probate served for certification court after (MCLA 600.2922 Ann A- [Stat 27§ .2922]). She not have a may interest in pecuniary final result.]
Either of possible these considerations be may found to be peculiarly controlling as interests of Anna Sue Collins.
In any event, the issue before the trial should be whether Vito’s defendant, and Excavating should be Company, collaterally es- as to all topped plaintiffs. in If, bar, the ease at collateral should to apply one interest should to all. apply At issue is the defendant’s neg- It cannot ligence. be said in one instance fairly justly litigated the issue of his negligence, in the other ap- instance that he did not. The plication of collateral estoppel should be a rule of discretion on equitable to be decided principles. should alike all apply who are represented by the statutory plaintiff. with ruling reference to Anna Sue Collins reconsidered and determined consistently
as to all the litigation.
In deciding the issue raised we must appeal, discuss the concept mutuality years
In recent states have many dispensed either or, substance, it.1 How- modified ever, jurisdictions few have subsequent allowed plaintiffs assert collateral an estoppel offensive weapon the same The leading defendant. (ED Wash, 1902), See eases cited 216 F United States in Supp 709, 726. v. United States Airlines, Inc., *5 145 Howell v. Vito’s Opinion op Cotjet of case Bernhard v. Bank National America Trust of Savings (1942), (122 & Association 19 Cal 2d 807 892), might P2d read hold that the same de- relitigating fendant is the issue of liability. The Bernhard tests are: adjudication “Was the issue decided in the presented identical with the one in the action in question ? Was there final on the merits ? party against plea Was the whom the is asserted a party prior adjudication?” (Emphasis Sup- plied.) holding by Supreme The broad the California attempt Court anwas to excise from collateral es- toppel “mutuality”. the ritualistic label of But it jus- principles should not be read to eliminate the equity determining tice and lateral inherent whether col- relitigating should bar a liability. the issues of his
Michigan factually courts have not a case decided They similar to the case before us. however, have, problem mutuality remedy dealt with the estoppel.2 its role in the of collateral mutuality Court has commented on controlling and held that it was not to be the factor estoppel. holding, in collateral in DePolo v. In so said the Court
Grieg (1954),
338Mich 703:
principles mutuality, plaintiffs
“Aside from the
why
have asserted no reasons
collateral
applied
barring
should not present
defendant.”
reducing
effect
did
principles
define DePolo
control
long
DePolo,
before
However,
Sophins v.
Avery
Curry
(1891),
551;
(1907),
Krolick v.
2
Grieg
214;
703;
148
(1954),
Mich
DePolo
Jones
Mich
v.
Chambers
Collateral is tool designed judicial to conserve resources to insure consistent decisions on facts. issues and But its use is not to be indiscriminate. There are foregoing some instances when the considerations yield justice particular must to the demands of to litigants.5 unjust estop
In some
it
cases would seem
to
a de
relitigating
liability
fendant
his
to several
plaintiffs.
example,
For
if a defendant wearied of
winning
determining
neg
six law suits seriatim
ligence
particular
in a
and failed
defend
incident
to
plain
say
remaining
a seventh
suit,
allow,
to
ten
preclude
tiffs to
his defense in later
suits
theory
inequitable,
of
would
whatever
seem
judicial
the considerations of
or consistent
resources
equally
results. Yet
is
there are instances when it
require
plaintiffs
try
unfair to
multitudinous
to
separately.
issue
States
See United
v. United
States
(ED
1962),
Supp
Airlines, Inc.
216 F
Wash,
mind
Bentham
having
Bentham,
L Rev
gation
[3]
[5]
“One is
[4]
Fifield
See
The
in applying estoppel
Bernhard
or not?
should be at an end? After
generally
wry
The Rationale
tempted
v. Edwards
observation of
(Bowring
(1957).
Doctrine,
And
Currie,
however to
if
ed
it
or not:
Mutuality
[9]
be,
Judicial
1843).
Jeremy
Stan
Dissenting is best left onr view judge guided by who, of the trial to the discretion weigh justice,” principles of the in- “broad litigants and the efficient administra- of the terests tion justice. opinion case indicates of the trial precluded holding he considered himself that the dispute the claim the defendant Anna hold other than Sue Collins. We interests discretion, free or not in his as, to do so justice require. ends of light of this
Remanded for reconsideration opinion.
No costs.
'' Miller, J. concurred. (dissenting). I J., dissent not I because Quinn, disagree reasoning with the or the of the ma result jority opinion contrary I but because think it is *7 existing denying plaintiff’s par law. motion for summary judgment, he was tial the trial stated I that law. review of the trial court, bound On law. I we are the same refer to believe bound I which read Clark v. Naufel estoppel by judg to hold before doctrine appear parties can be it must that the asserted, ment privies in which or their sought the same as the the doctrine privies to the action which the obtained. except affirmed court should be
The trial respect order Anna Sue to its as to Collins. She is part of the order to"this and that action, not. relating-to her be stricken.