Ball v. Citizens CasUalty Co.

WOOD (Fred B.), J. George E. Ball was killed in an airplane accident while crop dusting. His widow and minor son sued Tom Davis and Gladys Davis in a prior action, alleging that George was their employee, that his death occurred in the course of the employment and as the result of the negligence of the Davises, and that the Davises had no Workmen’s Compensation Insurance nor were they self-insured as required by section 3700 of the Labor Code.

The Davises joined issue. They denied that George was an employee of theirs; alleged that he was a copartner with them and other persons; denied the allegation that they had no Workmen’s Compensation Insurance and were not self-insured; and alleged that they were not within the purview of section 3700 of the Labor Code at the time of George’s death.

The cause was tried before a jury which found that George was an employee and awarded the widow $35,600 and the son $15,000.

A writ of execution for the enforcement of the judgment was returned unsatisfied. The widow and the son then brought the present action against the Citizens Casualty Company of New York upon an Employer’s Liability Policy which it had issued to Tom and Gladys Davis. Citizens Casualty interposed a number of defenses, including a plea that the judgment in the action against the Davises is res judicata, a bar to the present action. The cause was tried upon this issue alone, pursuant to section 597 of the Code of Civil Procedure, resulting in a judgment sustaining the plea of res judicata.

“In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question ? Was there a final judgment on the merits ? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” (Bernhard v. Bank of America, 19 Cal.2d 807, 813 [122 P.2d 892].) The parties are agreed that the second and the third questions must be answered in the affirmative. As to the first question, they are not in agreement. Defendant contends, in effect, that the prior adjudication decided all of the issues here involved. We are not persuaded that such is the case.

The policy sued upon has a dual aspect.

It contains a promise to indemnify the employer against loss by reason of the liability imposed upon him by law for damages on account of personal injuries to such of the employees as are legally employed. No action lies against [592]