analyzing whether nonparty to prior litigation “had control of or actively participated in” that litigation
How later courts described this case
- analyzing whether nonparty to prior litigation “had control of or actively participated in” that litigation
- “[t]his makes it clear that no apparent heir or beneficiary under the wrongful death statute has any vested right to any of the proceeds recovered in said action until after a hearing has been held before the county court, and a determination made by the court as to who is entitled to receive the proceeds and how much. . . . One may employ counsel to assist a litigant, or may testify as a witness in his favor or give other active support to his cause in court, without becoming a party to the record . . .”
- “The general rule is that there is no legal privity between a husband and wife in such a sense that a judgment for or against the one will conclude [sic] the other, where the action concerns their separate property, rights, or interests not derived from each other.”
- generally no privity between a husband and wife “where the action concerns their separate property, rights, or interests not derived from each other.”
Written by the judges who cited it.
The opinion
Newton, J.,
concurring.
I concur in the opinion of Brodkey, J. In doing so I appreciate that the authorities are not unanimous on the question presented. I note, however, that in only a very few instances have the courts extended the rule of collateral estoppel to cases such as this. For the most part the decisions appear to follow Restatement, Judgments, an analysis of which follows:
Section 85 provides: “(1) Where a judgment is rendered in an action in which a party thereto properly acts on behalf of another, the other is * * *
“(b) not bound by or entitled to the benefits of the rules of res judicata with reference to his interests not controlled by the party to the action.”
The Comment on clause (b) states: “b. Scope of Section. Subsection (1) deals with situations in which the first action is brought or defended by a representative on behalf of a person who is not a party, and the second action is brought or defended either by a representative of such a person or by the person himself.”
In Comment L on Subsection (1), clause (b), it is stated: “L. Interests of beneficiary not in charge of fiduciary. A fiduciary normally has no power to bind a beneficiary by any act except with reference to matters intrusted to him; as to other matters a judgment for or *31 against him does not affect the beneficiary. In actions brought by or against a fiduciary the rules of res judicata do not operate to create rights in favor of, or burdens against, the beneficiary or one on whose account the action was brought or defended with reference to matters which were not intrusted to the fiduciary. This is true where the fiduciary or his successor is a party to a subsequent action in which res judicata is claimed (see § 80) and also where the beneficiary is a party to such subsequent action.”
Illustration 13 is as follows: “13. A is trustee for B of Blackacre. While driving his automobile, C loses control of the car and it crashes into a house on Blackacre in which B is, injuring both B and the house. A sues C for the harm tó the house. Judgment is given for C on the ground that he was not negligent. B then brings suit against C for personal injury. The prior judgment in favor of C is not res judicata upon the issue of C’s negligence and C does not have the defense that the injury to the house and to the person of B was a single cause of action.”
Under Nebraska law the former action to recover for the death of plaintiff’s wife could have been brought and controlled only by the administrator of her estate. See § 30-809, R. R. S. 1943. On the other hand, such administrator could not bring an action like the one now before us in which plaintiff seeks recovery for his own personal injuries.