9 N.W.2d 777 | Minn. | 1943
It appears that any recovery for wrongful death would be for plaintiff's benefit as decedent's sole heir at law and for payment of the funeral expenses. The sufficiency of the facts alleged in the complaint, except those relating to the funeral expenses, are unchallenged. The allegation concerning the funeral expenses, challenged by defendants as lacking legal sufficiency, is "that the reasonable *290 value of the funeral services necessarily incurred for the burial of deceased was Six Hundred Dollars ($600.00)."
It appears that decedent was killed in an automobile collision involving his car, a bus of the defendant Northland Greyhound Lines, Inc., and an automobile belonging to defendant Emery. Decedent was driving his automobile, in which plaintiff was a guest passenger. The bus was driven by the defendant Pentz and Emery's car by the defendant LeRud. The facts and circumstances of the collision are set forth at length in Schmitt v. Emery,
It is conceded that the present action is based upon the same facts as the prior one and involves the same issues with respect to defendants' negligence and decedent's contributory negligence. Defendants invoke the rule sustained by numerous authorities that, where a personal representative is the sole beneficiary of an action brought by him in his representative capacity, a judgment in a prior action brought by him in his individual capacity for his sole benefit is res judicata as to all issues common to both actions. In order to bring the instant case within the rule invoked, they contend that the allegation of the complaint concerning the funeral expenses should be rejected as insufficient in substance and as an apparent afterthought of plaintiff.
1. The general rule is that a judgment does not operate as a *291
bar or estoppel against a person unless he appears in the two actions in the same capacity. "For in an action brought by a person as an administrator, or as a guardian, general or special, he is not a party, properly speaking, although he is nominally. The real party is the estate he may represent as administrator, or the minor in whose behalf he as guardian prosecutes the action. In another suit to enforce an individual demand or right, he, in contemplation of law, is a distinct person, and a stranger to the prior proceedings and judgment." Bamka v. C. St. P. M. O. R. Co.
Defendants urge that this case is not governed by the general rule, but by an exception thereto to the effect that where the representative is the sole beneficiary of the recovery in the subsequent action the judgment in the prior action brought by him in an individual capacity is res judicata. The rule invoked is recognized by such cases as Gibson v. Solomon,
Whether the exception to the rule invoked by defendants obtains in this state is an open question. We decide nothing with respect to it (see McKay v. Syracuse R. T. Ry. Co.
2. Of course the allegation that funeral expenses were incurred is general and indefinite. Probably a motion to make it more definite would lie, but not a motion for judgment. An ultimate allegation of fact will be held good as against a motion for judgment. N.W. Upholstering Co. v. First Nat. B.
T. Co.
Our conclusion is that plaintiff is not estopped by the prior judgment and that the judgment in the instant case should be reversed.
Judgment reversed.