Plaintiff Stiltjes, acting in her capacity as the administratrix of the estate of her deceased husband, filed this action against defendant Ridco Exterminating Company, Inc. (“Ridco”) аnd another corporation. The complaint seeks damages for the pain and suffering of plaintiff’s decedent due to the alleged negligence of defendаnts.
In a previous action, plaintiff, in her individual capacity, sought damages from defеndant Ridco (and additional defendants who were eliminated from the action before trial), for the wrongful death of her husband. A jury trial resulted in a verdict for defendant Ridco. In
Stiltjes v. Ridco Exterminating Co.,
In the casе sub judice, defendant Ridco moved for summary judgment, relying upon res judicata and collateral estoppel. Plaintiff appeals from the grant of summary judgment in favor of dеfendant Ridco. Held:
“OCGA § 9-12-40 provides that ‘A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ OCGA § 9-12-42 provides that ‘For a former judgment to bе a bar to subsequent action, the merits of the case must have been adjudicatеd.’ These code sections together set out the basic principles of res judicata in Georgia. For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cаuse of action in each suit must be identical. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collаteral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or thеir privies in a prior action.
Sumner v. Sumner,
The cause of action by the wife for the wrongful deаth of her husband is a separate and distinct cause of action from that of the dеceased’s estate for pain and suffering.
Complete Auto Transit v.
*853
Floyd,
Directing our attention to the doctrine of collateral estoppel, we note that, as with res judicata, identity оf parties or their privies is required in order to act as a bar to a second lаwsuit.
Mills v. Roberts,
Furthermore, we note that several cases upon which defendant Ridcо has placed reliance may be distinguished on the facts. These include
Smith v. Wood,
Defendant Ridco also relies on dicta from Janelle v. Seaboard Coast Line R. Co., 524 F2d 1259 (5th Cir. 1975) in which an initial unsuccessful action by the deceased’s estate under the Federal Employers’ Liability Act was followed by an action under Georgia’s wrongful death statute. The federal court opined that the surviving spouse was barred from bringing thе wrongful death action since he was in privity with the estate. Nonetheless, the sequence of events in Janette is the opposite of that in the case sub judice. In the case sub judiсe, the action by the estate follows, rather than precedes, the actiоn by the surviving spouse in an individual capacity. Therefore,' the dicta from Janette is not instructive оn the issues presented in the case sub judice. The superior court erred in granting summary judgment in favor of defendant Ridco.
Judgment reversed.