Voorhees v. Chicago & Alton Railroad
208 Ill. App. 86
Ill. App. Ct.
1917
Check Treatment
Mr. Justice Thompson

delivered the opinion of the court.

The special plea to which a demurrer was overruled is a plea of estoppel by verdict. The declaration in the suit of Voorhees, administrator of the estate of Mattie Byan, is identical with the first three counts of the declaration in this case except as to the name of the deceased. The deceased in this case was a boy under the age of 6 years. “While an action by a child of tender years for damages for injuries occasioned by the defendant’s negligence is not defeated in Illinois, by the fact that the parent having the care of the child at the time was guilty of contributory negligence, yet, if the child is killed, the contributory negligence of the parent is a bar to a recovery by the administrator of the child under section 1 of the Injuries Act.” Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424. Mattie Byan, the mother of Stuart Byan, and Stuart Byan were killed at the same time while riding together in a buggy drawn by a single horse that was being driven by Mattie Ryan. The plea sets up that the negligence in the present case was the same as in the former suit and that there was no different negligence or wanton conduct. Marcus J. Ryan, the husband of Mattie Ryan, is the father of Stuart Ryan. He is the only next of kin to his wife and their son. The Injuries Act permits an action to be maintained for the benefit of the next of kin to compensate them for the pecuniary loss sustained by the death of the deceased.

Under the Injuries Act neither the administrator nor the estate of the deceased has any interest in or right to the benefits of any judgment that might be recovered. The issues of the alleged negligence of the defendant and of ordinary care or contributory negligence of Mattie Ryan were submitted to and passed on by the jury in the case that was tried. The jury, in finding the defendant not guilty, found either that Mattie Ryan was not in the exercise of ordinary care or that the defendant was not guilty of negligence. Mattie Ryan, the mother, and Stuart Ryan, the child, having been killed together in the buggy, the facts bearing on the right of recovery in the respective suits are identical. Voorhees is the administrator in each of the estates. Marcus Ryan is the next of kin and sole beneficiary of each estate. He waived his right to administer in the several estates in favor of Voorhees and the same counsel were employed in the different suits.

Appellant cites Illinois Cent. R. Co. v. Slater, 139 Ill. 190, and argues that decision is conclusive of the question presented. The cases are readily distinguishable. In that case two brothers aged 10 and 1$ years had been killed in the same accident. Administration was taken out in each estate and suits were brought for the benefit of the next of kin. Recovery was had by the plaintiff in the suit first tried.' That was claimed by the defendant to be a bar to an action by the administrator of the other brother. If the judgment had been in favor of the defendant there would have been a similarity, but clearly a judgment in favor of one estate could not be a bar to a suit prosecuted by the other estate since there may not be a joint administration. '

“Whether the adjudication relied on as an estoppel goes to a single question or all the questions involved in a cause, the fundamental principle, upon which it is allowed in either case, is that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction shall be deemed finally and conclusively settled in any subsequent litigation between the same parties, where the same question or questions arise. * *’ * It is sufficient for the purposes of the rule relating to a former adjudication, when relied on as an estoppel, that the parties be substantially the same.” (Hanna v. Read, 102 Ill. 596.) Voorhees, as administrator in the respective estates, was a necessary party but was only a formal party having no interest whatever. Marcus Ryan, the father and next of kin, was not a party to either suit but was the sole beneficiary in both suits and entitled to the entire net damages resulting from the accident or collision, and the law required that the declaration in each case aver that lie is the next of kin, although not a party. Marcus Ryan, being the sole beneficiary and under no disability, had the right to settle and to accept and receipt to defendant for any damages, if he was entitled to recover damages for the death of his wife and children, if the same had been caused by the negligence of defendant. Voorhees, as administrator in the several estates, was but the legal agent of the beneficiary, Marcus Ryan. (Mattoon Gas Light & Coke Co. v. Dolan, 105 Ill. App. 1.) It is not always necessary that the parties to a suit should be nominally the same in order that one recovery may bar another. Where a suit is prosecuted by one person for the use of another, the latter being the real party in interest, a judgment therein will bar a, second suit by the latter in his own name. (Black on Judgments, secs. 537-539; Galveston, H. & S. A. Ry. Co. v. Kutac, 72 Tex. 643,11 S. W. 127.)

A point which was directly in issue in a former suit and was there judicially passed upon cannot again be drawn in question in any future action between the ■same parties or their proxies, whether the cause of action, in the two suits be identical or different. (Black on Judgments, sec. 504.) Where the real party in interest has had a trial of his rights on the merits there should be an end to the litigation (Hanna v. Read, 102 Ill. 596; Union Pac. Ry. Co. v. United States, 67 Fed. 975; Tidwell v. Witherspoon, 21 Fla. 359), and the judgment in that suit is conclusive on every issue of fact tried therein.

It is also contended that the demurrer should have been overruled to the second additional count. This count contains no averment of fact different from the first additional count and should have been striéken as surplusage. The plaintiff was not injured by the sustaining of the demurrer and there was no reversible error in the ruling although judgment was not entered on the demurrer to that count.

The first additional count avers that the defendant ran its train with a wilful and reckless disregard of the lives of travelers on the highway. Under this allegation it was not necessary to a recovery that it should have been proved that the deceased or his custodian in charge of him was in the exercise of due care. Under this count an issue was raised that was not tried in the former suit. “The former verdict is conclusive only as to facts directly and distinctly put in issue, and the finding of which is necessary to uphold the judgment. The doctrine of estoppel is restricted to facts directly in issue and does not extend to facts which may be in controversy, but which rest in evidence and are merely collateral. ‘A fact or matter in issue is that upon which the plaintiff proceeds by his action, and which the defendant controverts in his pleadings, while collateral facts are such as are offered in evidence to establish the matters or facts in issue. It must appear that the matter set up as a bar was in issue in the former suit. ’ ” Freeman on Judgments, sec. 257; Black on Judgments, sec. 733. The allegation of wilfulness was not in issue in the former suit. Had it been, the averment of due care was surplusage and the verdict might have been for plaintiff.

An estoppel does not depend upon technicalities but the broad principles of justice, and it can apply only when the party has had Ids day in court and an opportunity to establish his claim. Black on Judgments, sec. 618. The court erred in overruling the demurrer to the special plea to the first additional count, but there was no error in overruling it to the pleas to the three counts of the original declaration. The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.