Opinion
Opinion filed January 29, 1965.
1. JUDGMENT
Judgment on merits exhausts cause of action on which it was based and is absolute bar to subsequent suit between same parties and their privies upon same cause of action.
2. JUDGMENT
Judgment on merits estops parties and their privies in any other cause of action from relitigating any matter which was actually determined in prior suit.
3. JUDGMENT
Only parties to suit and those in privity with them are bound by judgment.
4. JUDGMENT
Cause of action of minor for personal injuries and cause of action by parent for loss of services of child are separate and distinct and recovery or failure to recover in action by one does not estop other from prosecuting his cause of action.
5. JUDGMENT
Judgment against father who drove automobile at time of collision injuring child does not bind child or affect his rights to recover for his injuries in subsequent suit. T.C.A. secs. 20-105, 34-101.
6. PARENT AND CHILD
Where one parent has exclusive custody and is entitled to services of child that parent has cause of action for loss of child's services and medical expenses resulting from personal injury. T.C.A. secs. 20-105, 34-101.
7. JUDGMENT
Prior judgment against father who did not have exclusive custody of child and hence could not have sued for loss of services of child resulting from child's personal injury could not have affected cause of action of mother who had custody for loss of services and medical expenses.
8. JUDGMENT
Mother who had exclusive custody of child and child were not in privity with father so as to estop them by judgment against father from litigating negligence question arising out of collision in which father was driver.
9. JUDGMENT
To be in privity with party to litigation, person must have had interest in action.
10. JUDGMENT
Pleadings revealed interest of neither child nor mother in previous action in which father had been held liable for property damage resulting from collision in which he was driver.
11. JUDGMENT
Fact that plaintiffs must show same set of facts as were involved in previous litigation is insufficient alone to establish privity with party to former litigation.
12. JUDGMENT
Record of prior litigation between father and another motorist involving same facts as those giving rise to mother's and child's causes of action was inadmissible for any purpose as mother and child in subsequent case against the motorist were in no way bound by former judgment.
13. JUDGMENT
Judgment against father for property damage resulting from collision was not res judicata against child's action for personal injuries or mother's action for loss of services and medical expenses as neither parties nor causes of action were identical in both suits.
FROM BLOUNTHUBERT D. PATTY, Maryville, for Betty Boring and Steven Dale Boring.
D.K. THOMAS, Maryville, for James L. Miller and Gary D. Lawson.
Action by child for personal injuries sustained in automobile collision and by mother of child for loss of child's services and medical expenses. The Circuit Court, Blount County, W. Wayne Oliver, Circuit Judge, sustained a plea to the declaration setting up final judgment against father of child for property damage arising out of same collision and averring that issue of negligence was res judicata, and plaintiffs brought appeal in error. The Supreme Court, Felts, Justice, held that the prior judgment against father did not bar the suit by mother and child as mother had exclusive custody.
Reversed and remanded.
Steven Dale Boring, a minor, by next friend, sued the defendants, James Miller, Gary D. Lawson, and Horace Boring, for $25,000.00 damages resulting from a collision between an automobile owned and driven by Horace Boring and an automobile owned by Miller and driven by Gary D. Lawson. Betty Boring, the mother of Steven Boring, by separate counts, sued for $5,000.00 damages for loss of services of the child and medical expenses.
It appears from the declaration that Horace Boring is the father of the child, but that Betty Boring has the exclusive custody. It further appears that Steven Boring was a passenger in the automobile operated by his father.
Defendants Miller and Lawson fild a plea to the declaration, setting up a final judgment of the General Sessions Court of Blount County in favor of James L. Miller and against Horace Boring for $400.00 damages to Miller's car, and averring that the issue of negligence had been finally adjudicated, estopping the plaintiffs from a recovery. A general denial was also plead. A copy of the judgment of the General Sessions Court was filed.
The plaintiffs moved the court to strike the plea of prior adjudication on the ground, among others, that the parties and causes of action were not the same. The trial court, W. Wayne Oliver, Judge, denied the motion, sustained the plea as a matter of law, and dismissed the action as to defendants Miller and Lawson. Plaintiffs took a non-suit as to Horace Boring, and appealed in error directly to this Court.
The one question necessary for the determination of this case is whether the General Sessions judgment against Horace Boring was conclusive of the issues of negligence in this suit by Betty and Steven Boring.
A judgment on the merits exhausts the cause of action on which it was based, and is an absolute bar to a subsequent suit between the same parties and their privies upon the same cause of action. Cheatham v. Allen, 192 Tenn. 535, 539, 241 S.W.2d 559 (1951); Polsky v. Atkins, 197 Tenn. 201, 206, 270 S.W.2d 497 (1954); Rutledge v. Rutledge, 198 Tenn. 665, 667-668, 281 S.W.2d 666 (1954); National Cordova Corp. v. City of Memphis, 214 Tenn. 371, 380 S.W.2d 793, 796.
The former judgment also estops the parties and their privies in any other cause of action to relitigate any matter which was actually determined in the prior suit. Cantrell v. Burnett Henderson Co., 187 Tenn. 552, 556-557, 216 S.W.2d 307 (1948).
However, it is well settled that only parties to the suit and those in privity with them are bound by the judgment. Stephens v. Jack, 11 Tenn. (3 Yerg.) 403 (1832); Cope v. Payne, 111 Tenn. 128, 130, 76 S.W. 820 (1903); Harris v. Buchignani, 199 Tenn. 105, 112, 285 S.W.2d 108 (1955). In the case at bar neither the parties nor the causes of action are the same as those in the prior suit; nor does either of the plaintiffs in this suit stand in privity with any party in the prior suit.
The cause of action involved in the prior adjudication was for property damages to Miller's car. The causes of action involved in the present controversy are (1) for the minor's personal injuries and (2) for the mother's loss of services of the child and medical expenses incurred.
It is the rule in this State that the cause of action of the minor for personal injuries and the cause of action for loss of services by the parent are separate and distinct, and a recovery or failure to recover in an action by one does not estop the other from prosecuting his cause of action against the defendant. Guy v. Lumber Co., 93 Tenn. 213, 23 S.W. 972 (1893); Forsyth v. Central Mfg. Co., 103 Tenn. 497, 53 S.W. 731 (1899). Therefore, the judgment for Miller against Boring, the father, in the prior suit could in no way bind the child or affect his rights to recover for his injuries in the present suit.
In addition, we think the cause of action for loss of the child's services and medical expenses belongs to the mother, where, as here, she has exclusive custody and is entitled to the services of the child. Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779 (1917); Churchill v. Churchill, 203 Tenn. 406, 410, 313 S.W.2d 436 (1958); T.C.A. secs. 34-101, 20-105. Therefore, since Horace Boring could not have sued for loss of services of the child, the prior judgment against him could not possibly have affected the cause of action of the mother for loss of services and expenses.
Nor do we think plaintiffs were in privity with Horace Boring so as to estop them from litigating the question of negligence. To be in privity with a party to litigation, the person must have had an interest in the action. Barnes v. Fort, 181 Tenn. 522, 536, 181 S.W.2d 881 (1944); Fultz v. Fultz, 180 Tenn. 327, 330, 175 S.W.2d 315 (1943).
Neither the child nor his mother appear from the pleadings to have had any interest in the previous action, which involved Miller's claim for property damage to his vehicle. Of course, plaintiffs are interested in proving the same set of facts involved in the prior litigation. However, this fact alone is insufficient to show privity.
Thus, we think it is clear that plaintiffs in this case were in no way bound by the judgment in the earlier case. Therefore, the record of the prior litigation between Miller and Horace Boring was inadmissible for any purpose. Guy v. Lumber Co., supra, 93 Tenn. 215, 23 S.W.2d 972.
For these reasons, we think the action of the Trial Judge in sustaining the plea as a matter of law and dismissing the action as to Miller and Lawson was error; and it is, therefore, reversed and the case remanded to the trial court. The costs are adjudged against defendants in error Miller and Lawson.