221 N.W.2d 183 | Mich. Ct. App. | 1974
SORENSON
v.
SAWYER
Michigan Court of Appeals.
John M. Patterson, P.C., for plaintiff.
*417 Isackson & Neering, P.C. (by Stanley Zimostrad), for defendant.
Before: QUINN, P.J., and V.J. BRENNAN and CARLAND,[*] JJ.
QUINN, P.J.
Defendant appeals from the trial court's denial of his motion for accelerated judgment. The motion was based on a claim of res judicata.
The automobiles of plaintiff and defendant collided at the intersection of Grant and Fourth Streets, Bay City, on March 7, 1966. At the time, plaintiff was insured by USF&G and the insurance policy provided for medical payments. Plaintiff made claim against his insurance company and was paid approximately $1,000 for which he executed a subrogation receipt for $1,000 to USF&G.
April 19, 1968, USF&G filed suit on its subrogated claim against defendant in Bay City municipal court for the subrogated amount of $1,000. This case was tried before a jury August 20, 1968. Plaintiff appeared as a witness for USF&G in this action. The jury verdict was no cause of action and judgment entered thereon. No appeal was taken.
March 4, 1969, plaintiff filed the present action in circuit court. Defendant appeared specially and moved for accelerated judgment on the basis of res judicata. The motion was argued May 19, 1969 and it was denied by order entered June 4, 1973.
Plaintiff's rights against defendant are the same as the rights of USF&G against defendant, Indemnity Insurance Co of North America v Otis Elevator Co, 315 Mich. 393; 24 NW2d 104 (1946). The factors establishing defendant's liability to USF&G and to plaintiff are the same, Jones v Chambers, *418 353 Mich. 674; 91 NW2d 889 (1958). A statement in the latter case at page 680 is applicable:
"Where issues of fact or law have been finally decided by a court of competent jurisdiction in one legal action which are essential to the maintenance of another legal action, it is universally held that the second action must fail."
Unlike Chunko v LeMaitre, 10 Mich. App. 490; 159 NW2d 876 (1968), this defendant asserted his claim of res judicata at the first opportunity. While the result of foreclosing plaintiff from trying this action may appear harsh, it is equally harsh to require defendant to defend this action twice. Plaintiff could have prevented the result by timely action in municipal court.
Reversed and remanded for entry of an order granting defendant's motion for accelerated judgment with costs to defendant.
All concurred.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
