Kimbrough v. Routh Trucking Co.

SHINN, P. J. Thelma Kimbrough brought suit against Routh Trucking Company for damages for the death of her husband, Isom Kimbrough, who lost his life when a truck he was driving for J&S Disposal Company collided with a truck and trailer of defendant Routh. Harold Kimbrough, an adult son, was a plaintiff, but went out on a nonsuit.

In the present action Guarantee Insurance Company filed a complaint in intervention alleging it was the compensation insurance carrier for J&S, was liable for a death benefit in favor of the family of Kimbrough in the sum of $15,400 upon its policy of insurance, and seeking judgment against Routh in that amount. The case was tried to a jury; by verdict and judgment Guarantee was awarded $12,400 and Mrs. Kimbrough had judgment for $6,750; no appeal was taken from Mrs. Kimbrough’s portion of the judgment, but Routh appeals from the portion in favor of Guarantee. It is not questioned that the evidence was sufficient to prove that the negligence of Routh was a proximate cause of the accident.

As a special defense to the complaint in intervention Routh pleaded as res judicata a judgment of the superior court in an action brought by J&S Disposal against Routh to recover damages for injury to its truck. In that action a general verdict and judgment were in favor of Routh.

By settled statement it was agreed that the claim of J&S for property damage and the claim of Mrs. Kimbrough arose out of the same accident, that Guarantee was the compensation insurance carrier for J&S and that Mrs. Kimbrough’s action was pending when the action of J&S was instituted. The record discloses that Guarantee’s complaint in intervention was filed after judgment was rendered in the former action.

Upon facts that are not disputed the following rights and duties arose: upon the death of Kimbrough J&S became obligated to pay a Workmen’s Compansation benefit to his family; since J&S was insured by Guarantee the obligation was that of the insurer (Lab. Code, § 3850), and under section 11662 of the Insurance Code Guarantee was subrogated to the [403]rights of J&S against Routh, namely, the right to sue Routh for the compensation benefit paid to Mrs. Kimbrough, to join with her as a plaintiff against Routh (Lab. Code, § 3853) or to claim a lien upon any judgment she might recover from Routh (Lab. Code, § 3856).

The sole question presented on the appeal is whether the claim of Guarantee was barred by the judgment in the former action. Appellant says in the brief “Respondent was in privity with J&S Disposal Company. . . . The doctrine of Bes Judicata is applicable when the identical issue was decided in a prior case by a final judgment on the merits and the party against whom the plea is asserted was a party or in privity with a party to a prior adjudication [,] ” citing French v. Rishell, 40 Cal.2d 477 [254 P.2d 26] and Bernhard v. Bank of America, 19 Cal.2d 807 [122 P.2d 892], It is then said that all the requirements of the doctrine were present and that the issues of negligence of Routh and contributory negligence of J&S, which were actually litigated and decided in the prior adjudication, were identical with those relitigated in this case.