# Hickman v. Southwest Dairy Suppliers, Inc.

> Nebraska Supreme Court · May 29, 1975 · 194 Neb. 17

URL: https://www.frixlaw.com/law-library/cases/9662412

## Case

- **Full name:** Robert Hickman, Appellant, v. Southwest Dairy Suppliers, Inc., a Corporation Et Al., Appellees
- **Court:** Nebraska Supreme Court
- **Decided:** May 29, 1975
- **Citations:** 194 Neb. 17; 230 N.W.2d 99; 94 A.L.R. 3d 663; 1975 Neb. LEXIS 755
- **Precedential status:** Published
- **Opinion:** Concurrence by Newton
- **Judges:** Brodkey, Clinton, Newton, Spencer, Warren
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9662412

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9662412. Public record. Not legal advice.