Fordham Law Review - CORE

Fordham Law Review Fordham Law Review

Volume 36 Issue 1 Article 1

1967

Collateral Estoppel and Motor Vehicle Accident Litigation in New Collateral Estoppel and Motor Vehicle Accident Litigation in New

York York

Josephine Y. King

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Recommended Citation Recommended Citation Josephine Y. King, Collateral Estoppel and Motor Vehicle Accident Litigation in New York, 36 Fordham L. Rev. 1 (1967). Available at: https://ir.lawnet.fordham.edu/flr/vol36/iss1/1

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Collateral Estoppel and Motor Vehicle Accident Litigation in New York Collateral Estoppel and Motor Vehicle Accident Litigation in New York

Cover Page Footnote Cover Page Footnote Assistant Professor of Law, School of Law, State University of New York at Buffalo.

This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol36/iss1/1

FORDHAMLAW REVIEW

1967-68VOLUME XXXVI

@ 1968 by Fordham University Press

EDITORIAL BOARD

KEvIN A. Qm

Editor-in-Chief

DAm1N J. AmoDEoArticles Editor

PETER M. ACTo

Case Notes Editor

LAWRENCE A. LEvxnzComments Editor

MANUEL A. BERARDoPAUL K. BIBABm mARD BRADYARTHUR L. BURNsROBERT W. CINQUEJosEPH A. CLARY IIIMICHAEL V. CORRIGANRICHARD DARsx:Y

THOMAS R. EsPosrroPETER FRASER

PAUL D. FREmwPAUL N. Fmnsm

BENJAMIN E. GoLD3LwWriting & Research Editor

EDWARD R. MADL

Managing Editor

MEMBERS OF THE BOARD

LAWRExCE E. GEamsnANTHoMAs F. GODFREY

DAVID S. HARTSTEIN

KMNEH HELDRICHARD HImSCH

DAVID V. KEEGANIswnr L. KWATEK

JOHN C. LEWIs

JAMES J. MALONEY

Nr H. MicKENBERcoMICHAEL J. MURPHY

PHIn M. PERLAH

JEREmy LANEArticles Editor

ANDREW P. GARRCase Notes Editor

EDWARD A. McCoDComments Editor

EUOENE J. PoRcAIoKzvn; J. QuINNRHODA S. RoTu

R. J. ScnArmRICH=AD P. ScHAEFER

THOMAS J. SCnWARZPAUL A. SODEN

MARx L. SUwNERB. MICHAEL THRoPE

PHILIP WILKERFREDERICK F. WNLmER

RICHARD M. ZARoIN

ANN V. SULLIvAN

Business Secretary

EDITORIAL AND GENERAL OFFICESLincoln Square, New York, N.Y. 10023

Published four times a year--October, December, March, and May. Member,National Conference of Law Reviews. Printed by the Heffernan Press Inc., Worcester,Massachusetts. Second class postage paid at Worcester, Mass.

SuBscR PTox PRICE $5.00, SINOLE Issua $2.00. Make checks payable to FoaDHALAW REVIEw. Subscription renewed automatically unless notified to contrary.

TABLE OF LEADING ARTICLES-TITLESAccouxTAi-s' TimD PARTY LiABnj -How FAR Do WE Go? Constantine N. Katsoris 191

AN ANALYsss or "INsoRmED CoNsENr.' Marcus L. Plante ......................... 639

CoLLATERAL ESTOPPEL AND MOTOR VEHICLE ACCIDENT LITIGATION I NEW YORE,

Josephine Y. King ........................................................ 1

CONGLOMERATE MERGER SYN-DRo -A CoxPAmisom: CoNGREssIONA. POLICY wrr

EN-FORCEIENT PoLIcY. James C. Thomas .................................. 461

TBE DEvELoPm qENT OF A CONGRESSIONAL PROGRAM DEALMIG wrTH STATE TAXATION or

INTERSTATE CoRImRCE. Emanuel Celler .................................... 385

THE EFFECT or REcFNr SUPREME COURT DzCISiO.S ON MrIuTARY LAW. Myron L.Birnbaum ................................................................ 153

THE EXPANDING RESPONSIBILITY OF THE Govmn-,MENT Am TRAFFIC CONmrLE.

Stanley J. Levy .......................................................... 401

THE FiRST AmENDmENT AND REGULATION OF PREjUDIcrAL PuBLicITY-A, AnALYSIS.

Jeffrey A. Barist .......................................................... 425HtumAs LABORATORY A.NfALS: MARTYRS FOR MEDICINE. M arion F. Ratnoff & Justin

C. Smith .................................................................. 673THE LEnmAcy OF Cirv. DISOBEDIENCE AS A LEGAL CoNCEPT. Delbert D. Smith .... 707LIFESAVING TREATIE T FOR UNWILLMM PATIENTS. David J. Sharpe & Robert F.

H argest, III ............................................................... 69S

A PHYSICIAN'S ViEw OF IseoR.D CONSF-NT IN HUMAN ExPERnMNTATIO.v. R. E. Rites,Jr., M .D . ................................................................. 631

SEA AND A3R SuBsmIs: A CoIEaRA tWE STUDY. Joseph L. Sarisky ................ 59STATUS OFFENSES AND DUE PROCESS OF LAW. John M. Murtagh .................... 51TRANSPORTATION STRIKES: A PROPOSAL FOR CoRREncTE LEGISLATION. A. Sidney Her-

long, Jr . ................................................................. 175VwmAsm: A STUDY Or LAW AND PoLrrIcs. Cornelius F. Murphy, Jr ................. 453WrEN Lmsrn_ LMEHrY FOR ALL: WHY NOT A PARTNERsIap CoRpoRATio.N;? Robert A.

K essler .................................................................... 235

TABLE OF LEADING ARTICLES--AUTHORSBARmT, JEFFREY A., The First Amendment and Regulation of Prejudicial Publicity-

An Analysis .............................................................. 425BUINBAum, MYRON L., The Effect of Recent Supreme Court Decisions on Military Law 153CELLER, Em.wor., The Development of a Congressional Program Dealing with State

Taxation of Interstate Commerce ............................................ 385HARGEST, Ill, ROBERT F., Lifesaving Treatment for Unwilling Patients .............. 695HIERLONG, JR., A. SmEY, Transportation Strikes: A Proposal for Corrective Legislation 175KATsops, CoNsTAN-TIN N., Accountants' Third Party Liability-How Far Do We Go? 191KESSLER, ROBERT A., With Limited Liability For All: Why Not A Partnership Corpora-

tion? ..................................................................... 235KING, JoSEPHRqE Y., Collateral Estoppel and Motor Vehicle Accident Litigation in

New York ............................................................... 1LEvY, STANLY J., The Expanding Responsibility of the Government Air Traffic Con-

troller .................................................................... 401MURPHY, JR., Co _rxtus F., Vietnam: A Study of Law and Politics .............. 453MURTAGH, JOHN M., Status Offenses and Due Process of Law .................... 51P. A TE, MARCUS L., An Analysis of "Informed Consent" . ......................... 639

ii

iv FORDHAM LAW REVIEW [Vol. 36

RArNorr, MARIoN F., Human Laboratory Animals: Martyrs for Medicine .......... 673

RIrTs, JR., M.D., R.E., A Physician's View of Informed Consent in Human Experi-

m entation ................................................................ 631SARIsyY, JOSEPH L., Sea and Air Subsidies: A Comparative Study ................ 59

SHARPE, DAVID J., Lifesaving Treatment for Unwilling Patients .................... 695SMITH, DELBERT D., The Legitimacy of Civil Disobedience as a Legal Concept ...... 707

SMITH, Jusrn C., Human Laboratory Animals: Martyrs for Medicine .............. 673THOrAS, JAMES C., Conglomerate Merger Syndrome-A Comparison: Congressional

Policy With Enforcement Policy .......................................... 461

TABLE OF BOOKS REVIEWEDALEXANDER: OFFSHORE BOUNDARIES AND ZONES. Ludwik A. Teclaff ................. 817BUGBEE: GENESIS OF AMERICAN COPYRIGHT LAW. Ramon A. Klitzke .............. 621CHRISTIE: THE LIALITY OF STRIKERs IN THE LAW OF TORTS: A COMPARATIVE STUDY

OF THE LAW IN ENGLAND AND CANADA. Ralph F. Bischoff .................... 373DESMOND: HIGHER EDUCATION AND TAX-MOTIVATED GIVING. J. Nelson Young ...... 374LEVIN: SuccEssFuL LABOR RELATioNs-AN EMPLOYER'S GUIDE. Herbert Ferster .... 375NIEDERHOFFER: BEHIND THE SIELD, THE POLICE IN URBAN SOCIETY. Paul J. Liacos 619SKOLNICK: JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY.

W ayne R. La Fave ...................................................... 145TEcLAFr: THE RIVER BASIN IN HISTORY AND LAW. John J. Meng .................. 148TIFFANY, MCINTYRE, JR. AND ROTENBERO: DETECTION OF CRIME. Thomas A. Wills .... 379TYLER: THE LABOR REVOLUTION. Noel Arnold Levin ............................ 150

COMMENTSBROKERAGE FIa 's LIABILITY FOR SALESMAN'S FRAUDULENT PRACTICES .............. 95

THE CHANGING FACE OF FEDERAL PRE-EfTlTION IN LABOR RELATIONS ............... 731

CONSTITUTIONALITY OF ADMINISTRATIVE OR STATUTORY SANCTIONS UPON THE EXERCISE

OF THE PRIVILEGE AGAINST SELF-INcRIMINATION .............................. 593FEDERAL INcomE TAX EXEMPTION FOR PRIVATE HOSPITALS ........................ 747

FRAUDULENT CONCEALMENT AS TOLLING THE ANTITRUST STATUTE OF LIMITATIONS .... 328

THE FREEDOM OF INFORMATION ACT: ACCESS TO LAW .............................. 765

PsOTECTION OF MORTGAGEE'S INVESTMENT WHEN THE SECURITY IS CONDEMNED IN

N EW YORK .............................................................. 586

SUCCESSOR EMPLOYER'S OBLIGATION UNDER PREDECESSOR'S COLLECTIVE BARGAINING

AGREEMENT AFTER A BUSINESS REORGANIZATION .............................. 569

A UNICAMERAL LEGISLATURE IN NEW YORK: A REVIEW AND A PROPOSAL ............. 307

WAIVER OF DEFENSE CLAUSES AND CONSUMER PROTECTION IN INSTALLMENT SALES CON-

TRACTS .................................................................... 106

ADDENDA

ERRATA

Page 23, Note 148, Last line. For "subrogee" read "subrogor."Page 421, Line 1. For "whether" read "weather."

Page 593, Note 6, Line 2. For "witnes" read "witness."

1967-68] INDEX TO VOLUME XXXVI v

Subsequent Dispositions of Cases NotedPage 129, Board of Education v. Allen. The Supreme Court noted probable jurisdiction at

389 U.S. 1031 (1968).Page 136, Madera v. Board of Education. The Court of Appeals for the Second Circuit

reversed at 386 F.2d 778 (2d Cir. 1967), and the Supreme Court denied certiorari, 36U.S.L.W. 3403 (U.S. April 23, 1968).

FORDHAM LAW REVIEW

INDEX DIGESTACCOUNTANTS

Accountants' Third Party Liability-HowFar Do We Go? 191

-Introduction 191-Liability to Third Parties 193-Liability Based Upon Negligence 193-Liability Based Upon Deceit 200-Liability Under Federal Securities

Laws 208-Securities Act of 1933 209-Securities Exchange Act of 1934 214-Where Do We Go From Here? 219-Observations and Conclusion 229

ADMINISTRATIVE AGENCIES

See also Administrative Law; TradeRegulation

Brokerage Firm's Liability for Salesman'sFraudulent Practices (Comment) 95

-Application of Securities Acts 96-SEC Supervision Requirements 102-Conclusion 105

ADMINISTRATIVE LAWSee also Administrative Agencies; LaborLaw

The Freedom of Information Act: Accessto Law (Comment) 765

-Publication in Federal Register 767-Organization and Procedure 768-Substantive Rules and Statements of

General Applicability 768-Failure to Publish-No Adverse Effect

775-Materials to Be Made Available for

Inspection and Copying 776-Final Opinions and Orders 777-Policy Statements and Interpretations

778-Staff Manuals-Deleting Identifying Details-Indexing-ConclusionFCC Applies Fairness Doctrine to

rette Commercials (Case Note)

779779780

Ciga-341

ADMIRALTY

Officer's Assignment of Insufficient Work

Party Renders Vessel Unseaworthy(Case Note) 348

ALCOHOLISMSee Due Process

ANTITRUST LAW

See also Securities RegulationConglomerate Merger Syndrome-A Com-

parison: Congressional Policy with En-forcement Policy 461

-The Problem Defined 467-Turner's Philosophy 470-Turner Position Reviewed 471-Critical Analysis of Turner's Merger

Philosophy 483-Should Courts Make Law in the Field

of Antitrust? 500-Congressional Standards vs. Turner's

Rules 506-Statutory Words Reviewed 552-Congressional Enforcement Policy 560-Recommendations 565Fraudulent Concealment as Tolling the

Antitrust Statute of Limitations (Com-ment) 328

-Origins of The Doctrine 328-Fraudulent Concealment as It Applies

to the Antitrust Statute of Limita-tions 331

-Conclusion 339Unincorporated Subdivisions of a Single

Corporation Held Capable of Con-spiracy under Section One of the Sher-man Act (Case Note) 607

ARBITRATION

See Labor Law

ARRESTSee Criminal Law;

EnforcementDue Process; Law

AVIATION

See Torts

CIVIL DISOBEDIENCE

See Jurisprudence

[Vol. 36

INDEX TO VOLUME XXXVI

CIVIL PROCEDURESee Collateral Estoppel

COLLATERAL ESTOPPELCollateral Estoppel and Motor Vehicle

Accident Litigation in New York 1-Introduction I-Policy of Owner Responsibility in

Present Statute 4-Prior Legislation and Issue of Permis-

sion in Single-Stage Litigation 6-Ipplcation of Collateral Estoppel 11-Parties and Privies 11-Co-Parties 13-Mutuality 16-Passengers 26-Issues 30-Cummings v. Dresher 37-Recommendations 42-Appendix 48Truck Owner Allowed to Make Offensive

Use of His Driver's Prior Judgment(Case Note) 121

COMMERCIAL FINANCINGWaiver of Defense Clauses and Consumer

Protection in Installment Sales Con-tracts (Comment) 106

-Introduction 106-Pre-Code 108

9-206(1) and Amendments Thereto111

-Consumer vs. Non-Consumer Goodsand the New York Personal PropertyLaw 114

-Conclusion 119

CONFLICT OF LAWSSee also Domestic RelationsBabcock Doctrine Extended-Section 388

of New York Vehicle and Trafic LawApplied to Out of State Accident (CaseNote) 783

CONSTITUTIONAL LAWSee also Civil Rights; Confessions;

Criminal Law; Military Law; Searchand Seizure; Self-Incrimination; Wel-fare

The First Amendment and Regulation ofPrejudicial Publicity-An Analysis 425

-Introduction 425-Bridges and its Progeny 426-Effect of The Contempt Cases on

Cases Involving a Jury 431-Inapplicability of The Contempt Cases

to Jury Directed Publications 433-Indications from The Supreme Court

433-Historical Reasons for Bridges 435-Rationale of Bridges and Its Inap-

plicability to Extra-Record InfluenceUpon the Jury 438

-Suggested Approach 442-Temporal Framework 442-Publicity Adverse to the Prosecution

443-Content of the Publication 444-Conclusion 451Intergovernmental Immunities-National

Bank Held Subject to State Sales andUse Taxes (Case Note) 795

Search and Seizure-Spedfic Warnings ofFourth Amendment Rights Held NotNecessary to Validate ConsensualSearch after Suspect Has Been GivenAiranda Warnings (Case Note) 801

State Lending of Textbooks to Studentsin Denominational Schools (Case Note)

129Student's Right to Counsel at Disciplinary

Hearing (Case Note) 134

CONTRIBUTORY NEGLIGENCESee Torts

CONVERSIONSee Torts

COPYRIGHTSGenesis of American

Book ReviewCopyright Law, A

621

CORPORATIONSSee also Labor LawWith Limited Liability For All: Why Not

A Partnership Corporation? 235-Introduction 235-Limited Liability and Corporateness

237-Basic Unity of the Forms of Business

Organization 242

1967-68]

FORDHAM LAW REVIEW

-Inadequacy of the Present Form ofBusiness Organizations 246

-To A More Adequate Form 252-Close Corporations 255-New Form of Business Organization

258-Recapitulation 275-Proposed Partnership Corporation Act

277

CRIMINAL LAW

See also Due Process; Search and SeizureTwo Approaches to Defining Custody

under Miranda (Case Note) 141Detection of Crime, A Book Review 379

CRIMINAL PROCEDURESee Due Process; Law Enforcement

DECEIT

See Accountants

DIVORCESee Domestic Relations

DOMESTIC RELATIONSMexican Law Applied on Effect of Mex-

ican Bilateral Divorce Decree UponAlimony and Support Provisions of aPrior New York Separation Decree(Case Note) 806

DUE PROCESSSee also Collateral Estoppel; Commercial

Financing; Constitutional Law; Crim-inal Law; Law Enforcement

Status Offenses and Due Process of Law51

-The Fenster Litigation 51-Decisions of the Supreme Court 53-The Revised Penal Law 54-Status Arrests in New York City 56-The President's Commission 57-Conclusion 58

ECONOMICSSee Antitrust Law

EDUCATION$e Taxation

EMINENT DOMAINSee Real Property

EVIDENCESee Constitutional Law

HOSPITALSSee Medical Jurisprudence, Taxation

IMPLEADERUnited States Permitted to Implead a

State on an Indemnity Contract (CaseNote) 357

INDIGENTSSee Due Process

INFORMED CONSENTSee Medical Jurisprudence

INTERNATIONAL LAWSee Political Science

INTERSTATE COMMERCESee Taxation; Torts

JURIESSee Constitutional Law

JURISDICTIONSee Conflict of Laws; Collateral Estop-

pel; Taxation

JURISPRUDENCESee also Antitrust Law, Medical Juris-

prudenceThe Legitimacy of Civil Disobedience as

a Legal Concept 707-Introduction 707-The Context of Civil Disobedience 708-The Definitional Problem 713-The Nature of the Act of Civil Dis-

obedience 718-Civil Disobedience and Civil RIghts

723

LABOR LAWTransportation Strikes: A

Corrective Legislation-Introduction-Need for a Remedy-Proposed Remedies

Proposal for175175175177

[Vol. 36

INDEX TO VOLUME XXXVI

-Seizure 177-Arsenal of Weapons 178-Governmental Adjudication 182-Conclusion 189Successful Labor Relations-An Employ-

er's Guide, A Book Review 375The Liability of Strikers In the Law of

Torts: A Comparative Study of theLaw in England and Canada, A BookReview 373

Successor Employer's Obligation underPredecessor's Collective BargainingAgreement after a Business Reorgani-zation (Comment) 569

-State of the Law Prior to Wiley 571-Degree to Which Collective Bargaining

Binds Successor 573-Application of Wiley to Purchase of

Assets Situation 575-The Kimball Case 576-Conflict With Another Union 578-The Monroe Sander Litigation 583-Conclusion 585The Changing Face of Federal Pre-

emption in Labor Relations (Com-ment) 731

-Introduction 731-Pre-emption Doctrine and Its Ratio-

nale 732-Pre-emption and the NLRB 733-Pre-emption and the Courts 734-Scope of Pre-emption 735-Decisional Law 735-Early Exceptions to the Doctrine 735-Development of the Doctrine 736-State Resistance 737-Building Trades Council v. Garmon

738-Statutes 739-Special Problems under Section 301

739-Additional Statutory Provisions 740-Recent Judicial Restrictions 742-Conclusion 746

LAW ENFORCEMENT

See also SociologyJustice Without Trial: Law Enforcement

in Democratic Society, A Book Review145

LEGISLATIONSee Labor Law; Political Science

MALPRACTICESee Medical Jurisprudence

MEDICAL JURISPRUDENCEA Physician's View of Informed Consent

In Human Experimentation 631An Analysis of "Informed Consent" 639-Introduction 639-Applicable Principles 648-Practical Differences 650-Battery Cases 650-Medical Negligence Cases 653-Proof of Wrongful Act 657-Battery Cases 657-Medical Negligence Cases 658-Causal Relationship and Damages 666-Battery Cases 666-Medical Negligence 666-Statute of Limitations 669-Conclusion 671Human Laboratory Animals: Martyrs for

Medicine 673-Phenomenon of Medical Research 675-Definition of Human Experimentation

676-Differentiation between Therapeutic

and Manipulative Experiments 676-Individual Questions of Morality 677-Medical View of the Problem: The

Code Period: 1947-1967 678-Medical Codes of Ethics 679-Essence of the Codes 681-Interdisciplinary Help for Doctors 682-Legal View of the Problem 682-The Physician's Peril Doctrine 683-Legal Recognition of the Necessity for

Experimentation 684-Development of the Consent Doctrine

684-Consent by Parents for Minors 685-Consent by the Incompetent 686-Statutes and Regulations 687-Prisoner Regulations 687-Army Regulations 688-United States Public Health Regula-

tions 689-The Investigational Drug Amendment

689

1967-68]

FORDHAM LAW REVIEW

-Municipal Regulation 691-Consent: The Pivotal Issue 691-Legal Precedent 691-Religious Views on Consent 692-Informed Consent 693-Conclusion 694Lifesaving Treatment for UnMilling Pa-

tients-Introduction-Patient's Competence-Justiciability and Standing

-Standing of Hospitals-Standing of Next of Kin-Standing of the State-Conclusion

695695696

in General697699702704705

MILITARY LAWThe Effect of Recent Supreme Court

Decisions on Military Law 153-Introduction 153-The Court Martial System 155-Miranda and the Right to Counsel 158-- Schmerber and Related Problems 166-Admissibility of Blood Tests 166-Handwriting Exemplars and Voice In-

dication 169-Warden v. Hayden and the "Mere

Evidence" Rule 171-Conclusion 173

MORTGAGESSee Real Property

NEGLIGENCESee Accountants; Medical Jurisprudence;

Torts

PARTNERSHIPSee Corporations

POLITICAL SCIENCESee also Antitrust LawA Unicameral Legislature in New York:

A Review and a Proposal (Comment)307

-Origins of the Legislative System 307-Modern American Legislations 314-Effectiveness of a Bicameral Legislature

in New York 317-Conclusion and Proposal 324

Vietnam: A Study of Law and Politics453

-The Falkian Thesis 453-International Law and Politics 456

REAL PROPERTYProtection of Mortgagee's Investment

When the Security is Condemned inNew York (Comment) 586

-Introduction 586-When the Security is Condemned 586-Interest Rate Problem 588-Conclusion 591

RES JUDICATASee Collateral Estoppel

RESIDENCESee Welfare

RIGHT TO COUNSELSee Constitutional Law; Military Law

RIVERSThe River Basin in History and Law, A

Book Review 148

SEARCH AND SEIZURESee also Constitutional LawEvidence Obtained During Police In-

vestigation of An Emergency Held Ad-missible (Case Note) 352

SECURITIES REGULATIONSee also Accountants; Administrative

AgenciesStatutory Merger Involves A "Purchase"

Or "Sale" Under Section 10(b) (CaseNote) 362

SELF-INCRIMINATIONConstitutionality of Administrative or

Statutory Sanctions Upon the Exerciseof the Privilege Against Self-Incrimi-nation (Comment) 593

-Introduction 593-History 594-Public Employees 596-Policemen 596-Teachers and Other Public Employees

599

[Vol. 36

INDEX TO VOLUME XXXVI

-Person Doing Business With the State601

-Administration of the Statutes Today602

-Conclusion 603-Problems Facing the Supreme Court

603-Possible Solutions 605

SOCIOLOGY

Behind The Shield, The Police in Urban

Society, A Book Review 619

STATUTE OF LIMITATIONS

See Antitrust Law

TAXATION

See also Constitutional LawThe Development of a Congressional

Program Dealing with State Taxationof Interstate Commerce 385

-Background 385-Congressional Study 388-Defects in Present System 388-Proposed Interstate Taxation Act 390-Jurisdictional Balance Struck by H.R.

2158 392-Some Political Ramifications of the

Jurisdictional Balance 396-Some Observations on the Multistate

Tax Compact Suggested as an Alterna-five to H.A. 2158 399

-Summary and Conclusions 400Federal Income Tax Exemptions for Pri-

vate Hospitals (Comment) 747-Introduction 747-Requirements for Exemption 750-Organization 752-- Operation 757-Inurement 761-Use of Facilities 763-Conclusion 764Higher Education and Tax-Motivated

Giving, A Book Review 374

TORTS

See also Accountants; AdministrativeAgencies; Conflict of Laws; LaborLaw; Medical Jurisprudence

The Expanding Responsibility of the

Government Air Traffic Controller 401-Introduction 401-Development of the Air Traffic Control

System 403-Right to Sue the Government 406

-Early Rule-Restricted Responsibility410

-Mid-Air Collision and Near Misses 411

-Wake Turbulence Cases 416-Weather Reporting Cases 419-Conclusion 422More Than Apparent Peril Needed for

Rescue Doctrine (Case Note) 369Use of Information Contained in Stolen

Documents Held to Constitute a Con-version (Case Note) 812

TRADE REGULATION

See also Antitrust LawSea and Air Subsidies: A Comparative

Study 59-Introduction 59-Inception of Sea and Air Subsidies 62-Statutory Provisions 66-Civil Aeronautics Act 69-Restricted Entry 70-Air Carriers 70-- Ocean Carriers 71-Administrative Subsidy Determinations

73

-Need v. Parity 74-Agreements Affecting Subsidy 78

-Subsidy Reduction Programs 81-Air Subsidy Decline 86-Maritime Subsidy Increases 86

-Conclusions 87-Proposals 89

-Appendix 93

TRANSPORTATION

See Labor Law

UNIFORM COMMERCIAL CODE

See Commercial Financing

UNIONS

See also Labor Law

The Labor Revolution, A Book Review150

1967-68]

FORDHAM LAW REVIEW

WELFAREConstitutional Law-Illegitimate Chil-

dren Denied Equal Protection of Laws(Case Note) 790

Constitutional Law-Social Welfare-Residence Requirement Held to Vio-

late Welfare Recipient's ConstitutionalRight to Free Interstate Travel (CaseNote) 612

WRONGFUL DEATHSee Conflict of Laws

[Vol. 36

INDEX TO VOLUME XXXVI

TABLE OF CASESCase names prefixed with an asterisk are the subjects of Case Notes

Abram, Breithaupt v .............. 168Addyston Pipe & Steel, United States

v . ............................ 478Adler v. Board of Education ...... 600Admiral Corp., Reines Distributors,

Inc. v . ................... 610, 611Aiken v. Clary ......... 647, 664, 671Alabama State Board of Education,

Dixon v . ................. 136, 140Alabama, Thornhill v ............. 449

*Allen, Board of Education v ....... 129*Allen, Goldwyn v ................ 135

Allen, Nassau Discount Corp., v. .. 118Amalgamated Ass'n of Street Em-

ployees Local 998 v. WisconsinEmployment Relations Board ... 734

American Overseas Airlines, Inc., v.CAB ....................... 78, 79

American President Lines, Ltd. v.Redfern ...................... 349

American Sumatra Tobacco Corpo-ration, Voege v ................ 367

American Tobacco Co. v. People'sTobacco Co ............... 333, 335

Anheuser-Busch Inc., Weber v. 737, 746Application of Lang ............. 812Aptheher v. Secretary of State .... 614Arcara v. Moresse .............. 8-10Arden, Ferres v .................. 19Arizona, Miranda v ....... 136, 141-45,

158, 160-66, 171-73, 382,802, 804-06

Arizona, United States v ........... 358Armbrecht, Holmberg v ....... 328, 329Arnold, People v ................. 144Atkinson, Sinclair Refining Co. v... 740Atlanta Newspapers, Inc. v. State .. 431Babcock v. Jackson 783-85, 787, 789-90Bailey v. Glover ..... 328-29, 331, 333Baker, Slater v ................... 683Ball, United States v ........... 170-71Baltimore Radio Show, Inc. v. State 432Bang v. Charles T. Miller Hospital

649-50, 657Bank of America, Bernhard v.

17, 22, 29, 30Bank of New York v. Kennedy ... 589

Bank of United States, Osborn v... 796Bankers Commercial Corp. v. Guerra 119Barnaby, United States v .......... 167

*B.C., In re ...................... 791Beacon Fruit & Produce Co. v. H.

Harris & Co . .................. 611Beilan v. Board of Education ..... 600

*Benefidal Finance Co., Vine v.364, 367-69

Benger, Biggs v .................. 19Benintendi v. Kenton Hotel Inc. .. 236Bernhard v. Bank of America

17, 22, 29-30Biggs v. Benger ................. 19Blake, Carpenter v ............... 683Blake, Stayer & Abbott Mfg. Co. v. 245Blalock, United States v ........... 803Block v. McVay ................. 661Board of Education, Adler v ....... 600

*Board of Education v. Allen ...... 129Board of Education, Beilan v. 600Board of Education, Brown v. 382Board of Education, Cochran v. 130-31Board of Education, Cosme v. 136, 139Board of Education, Everson v. 131-33Board of Education, Judd v. ... 130-31Board of Education, Madera v. ... 136Board of Education, McCollum v.

132-33Board of Education, Slochower v.

598-600, 602Board of Regents, Keyishian v. . 600-01Bonanno, United States v .......... 381Bond & Goodwin, Inc. ........... 103Bonner v. Moran ................ 685Borax Consolidated Ltd., Burnham

Chemical Co. v ................ 334Borax Consolidated, Ltd., Suckow

Borax Mines Consolidated, Inc. v.336, 337

Bowers v. Talmage ........... 336-37Boyd, United States v ............. 799

*B. R. De Witt, Inc. v. Hall .. 23, 2S-26,42, 44, 46, 50, 122-23,

125-29Brenner, Minkoff v ... 14, 25, 50, 127Breithaupt v. Abram ............ 168

1967-68]

FORDHAM LAW REVIEW

Bridges v. California .. 426-27, 430-39,441-42, 451

Brim, Wall v .................... 652Broderick, Gardner v ............. 598Brotherhood of Locomotive Firemen

& Enginemen v. Chicago, Burling-ton & Quincy R.R ............. 183

Brown v. Board of Education .... 382Brown Shoe Co. v. United States .. 504Budd v. California .............. 53Buick, MacPherson v ............. 194Burnham Chemical Co. v. Borax

Consolidated, Ltd ............. 334Burns v. Wilson ................. 154CAB, American Overseas Airlines,

Inc., v . ..................... 78-79California, Bridges v. .. 426-27, 430-35,

437-39, 441-42, 451California, Buddv ............... 53California, Edwards v ......... 613-14California, Gilbert v ............. 170California, Rochin v .......... 167-69California, Schmerber v. 166, 168-69, 172California, Stoner v .............. 353Caliahan v. New Orleans Police De-

partment ...................... 597Candler v. Crane, Christmas & Co.

196-97Cantrell, State National Bank v ... 111Carbide & Carbon Chemicals Corpo-

ration, Martin v ............... 649Carle v. Carle Tool & Engineering

Co . ........................... 244Carle Tool & Engineering Co., Carlev . ............................ 244

Carling Brewing Co., Gaetzi v .... 334Carpenter v. Blake .............. 683Carson, Scripto, Inc. v ............ 388Casey, Lerner v .................. 601Cattaro v. Northwest Airlines, Inc. 413Chalifaux, Mohawk National Bank v.

116, 119Chaplinsky v. New Hampshire .... 447Chapin v. United States .......... 361Charles T. Miller Hospital, Bang v.

649-50, 657Chenery Corp., SEC v. .. 772, 774, 776Chicago, Burlington & Quincy R.R.,

Brotherhood of Locomotive Fire-men & Enginemen v ............ 185

Childree, H.L. Green Co. v ........ 218

Childs, Commercial Credit Co. v. .. 110City Council of Charleston, Westonv . ............................ 359

Clary, Aiken v .......... 647, 664, 671Clauson, Zorach v ............... 130Cochran v. Board of Education 130-31Cogen, Duro Sportswear, Inc. v. 204-05Cohen v. Hurley ................ 599Collins v. Davis ................. 703Columbia Broadcasting System, Inc.,

Poller v . ...................... 610Columbia Steel Co., United States v.

479-80Commercial Credit Co. v. Childs .. 110Connecticut, Griswold v .......... 794Consolidated Edison Co., Quatroche

v . .................. 24, 49, 124-26Construction Local 438 v. Curry .. 734Copp v. Sands Point Marina, Inc.

589, 592Corn v. French .................. 657Corn Products Ref. Co., United

States v . ...................... 479Cosine v. Board of Education 136, 139County of Los Angeles, Nelson v. .. 601Cox v. Louisiana ................ 434Craig v. Harney ..... 427, 434, 439-40Crane, Christmas & Co., Candler v.

196-97Crummer Co. v. DuPont .. 333, 335-37,

339

Cummings v. Dresher ...... 3, 28, 37,39-42, 50

Curry, Construction Local 438 v. .. 734Daily v. Quality School Plan, Inc. 563Dalebite v. United States ........ 407Daly v. Terpening ........ 26, 28, 41, 49

*Dasho v. Susquehanna Corporation365, 368-69

Davenport v. Webb .......... 788-89Davis, Collins v . ................ 703Decker, United States v ......... 161Department of Employment v.

United States .......... 798-99, 801Derry v. Peek .................. 200Diaz, People v ................... 56Dickman v. School District ...... 133District of Columbia, Easter v. .. 53, 56District of Columbia, Hicks v .... 53Dixon v. Alabama State Board of

Education .................. 136, 140

[Vol. 36

INDEX TO VOLUME XXXVI

*Dodd v. Pearson ................ 812Donahue, Smith v ............... 131Dovberg v. Dow Chemical Co. 337Dow Chemical Co., Dovberg v. 337Dresher, Cummings v .... 3, 28, 37, 39,

40, 41, 42, 50Driver v. Tinnant .............. 53Drury v. Hurly .................. 596DuPont, Crummer Co. v ......... 333,

335-37, 339Duro Sportswear, Inc. v. Cogen

204-05Dym v. Gordon ........ 784, 786, 790Dzurita, National State Bank v..... 114Easter v. District of Columbia .... 53, 56Edwards v. California ......... 613-14E. H. Rollins & Sons, Inc ......... 103E. I. DuPont DeNemours & Co.,

U.S. v ......................... 506Elder v. New York & Pennsylvania

Motor Express, Inc .... 17, 21, 23, 25,48, 125

Emery v. Fowler ................ 19Emery, Good Health Dairy Products

Corp. v ....... 16, 21, 22, 23, 48, 123Employer's Liability Assurance Corp.,

Fox v ......................... 32Ernst, State Street Trust Co. v... 203-205Escobedo v. Ilinois .......... 160, 162Estate of Brooks, In re ........... 704Eastern Airlines, Inc., Ingham v. 402,

409, 421Everson v. Board of Education .. 131-133Exploration Co. v. U.S . ...... 328-329

*Farber v. Smolack ............... 783Fenster v. Leary .......... 51-54, 56, 58Fernandez, Public National Bank &

Trust Co. v ................... 110Ferres v. Arden ................ 19

*First Agricultural National Bank v.State Tax Commission ...... 795-96

Fischer v. Kletz .......... 206, 216, 218Fischer v. Wilmington General Hos-

pital ..................... 656, 658Florida, Pennekamp v .... 427, 433-34Foremost Dairies, Inc ............. 477Fornaro v. Jill Bros., Inc ......... 788Fortner v. Koch ................. 684Forslund, United States v ....... 167Fowler, Emery v ................. 19

Fox v. Employer's Liability Assur-ance Corp ................... 32

French, Corn v .................. 657F.T.C. v. Gratz .................. 511F.T.C., International Shoe Co. v... 547F.T.C. v. Proctor & Gamble Co .... 475,

477-78, 525, 541, 557Furumizo v. United States ...... 417, 419Gaetzi v. Carling Brewing Co .... 334

*Gallmon, People v ............... 353

Gardner v. Broderick ............ 598Gardner v. Murphy ............ 602-03Garrison v. Louisiana ......... 429-31,

439-40, 445Garmon, San Diego Building Trades

Council v. .. 738, 740, 742-43, 745-46Garner v. Teamsters Local 776 .. 733, 737Garrity v. New Jersey .... 593, 598, 600,

605-06General Cable Corp ......... 772, 774General Electric Co., Ohio Valley

Electric Corp. v ............... 231General Motors Corp., United States

v . ............................ 608George Campbell Painting Co. v.

Reid ........................ 601-02George, United States v ........... 703Georgia, Wood v ......... 433-34, 443Gilbert v. California ............ 170Glaser v. Huette ............ 13-15, 44Glanzer v. Shepard .......... 194-97, 205Glover, Bailey v ....... 328-29, 331, 333

*Golduwyn v. Allen ............... 135Gonzales, Machinists v. 742-43, 745-46Good Health Dairy Products Corp.

v. Emery .......... 16, 21-3, 48, 123Gordon, Dym v ............ 784, 786

*Gorman v. United States ......... 802Gouled v. United States ........ 171-73Grace Lines, Inc. ................ 80Grafton v. United States .......... 154Grant v. Knepper ................ 9Gratz, F.T.C. v ................... 511Gray v. Grunnagle ............... 651Greer, United States v ........... 171Griswold v. Connecticut .......... 794Guerra, Bankers Commercial Corp.v ................................. 119

Guest, United States v ........... 614Gundersen, Paulsen v ........ 652, 658Grunnagle, Gray v ............... 651

1967-68]

FORDHAM LAW REVIEW

Gunnels, United States v ....... 158-59Guss v. Utah Labor Relations Board

740-41H. Harris & Co., Beacon Fruit &

Produce Co. v ................. 611H. L. Green Co. v. Childree ...... 218

*Hall, B. R. DeWitt, Inc. v ..... 23, 25, 26,

42, 44, 46, 50, 122, 123, 125, 129Hamborogh Co., Salmon v .... 239-241Hanover Shoe, Inc. v. United Shoe

Machinery Corp.. .......... 500, 506Harney, Craig v ...... 427, 434, 43940Harris, Lower v ................. 207Hartz v. United States .......... 417-18Haverhill v. International Railway

17, 20-22, 25, 48, 122*Hawaiian Oke & Liquors, Ltd. v.

Joseph E. Seagram & Sons, Inc. .. 607Hayden, Warden v ............ 172-73Heaven v. Pender ................ 194Hedley, Byrne & Co. v. Heller &

Partners ...................... 197Heller & Partners, Hedley Byrne &

Co. v . ........................ 197Kicks v. District of Columbia .... 53Highland Supply Corp. v. Reynolds

Metals Co ..................... 611Hill, Time Inc. v ............... 449-50Hinchey v. Sellers .... 9, 30, 33, 36, 37,

45, 49Hinnant, Driver v ............... 53Hirliman, Shonts v ............ 212-13Hochren v. United States ........ 414Hogan, Holland v ............... 601Hogan, Malloy v .... 594, 596, 599-60

604Holland v. Hogan .............. 601Holle v. Lake .................... 371Holmberg v. Armbrecht ........ 328-29Holt v. Richardson .............. 322Hopkins, Yick Wo v ............ 794Huette, Glaser v ............. 13-15, 44Humble Oil & Refining Co., McGuirev ....................... 576, 578-84

Hurley, Cohen v ................. 599Hurly, Drury v ................... 596Hyman v. Jewish Chronic Disease

Hosp . ................. 686-87, 691Illinois, Escobedo v ......... 160, 162Illinois, Munn v ................... 499Indian Towing v. United States 408, 410

Ingham v. Eastern Airlines, Inc. .. 402,409, 421

International Railway, Haverhill v.17, 20-22, 25, 48, 122

International Shoe Co. v. F.T.C. 547International Union, Local 232, UAW

v. Wisconsin Employment Rela-tions Board ................... 736

International Union, United PlantGuard Workers, Wackenhut Corp.v ................... 573-76, 578, 585

Israel v. Wood Dolson Co .... 14, 17,23-26, 49

Jackson, Babcock v ....... 783-85, 787,789-90

Jewish Chronic Disease Hosp.,Hyman v ............. 686-87, 691

Jill Bros., Inc., Fornaro .......... 788John Deere Co., Root v ......... 115John Wiley & Sons, Inc. v. Living-

ston ........ 569, 571-79, 581-83, 585Johnson, Standard Oil Company v.

798-99Johnson v. Zerbst ............ 802-06Jordan, United States v ........... 167

*Joseph E. Seagram & Sons, Inc.,

Hawaiian Oke & Liquors, Ltd. v. 607Joseph E. Seagram & Sons, Kiefer-

Stewart Co. v ............... 609-12Judd v. Board of Education .... 130-31Karl Brandt, United States v ...... 673Kamen & Co., Paul H. Aschkar &

Co. v ......................... 101-02Kennedy, Bank of New York v .... 589Kenton Hotel, Inc. Benentendi v. 236Kershow v. Tilbury .............. 683Keyishan v. Board of Regents .... 600-01Kiefer-Stewart Co. v. Joseph E. Sea-

gram & Sons, ................ 609-12Kilberg v. Northeast Airlines, Inc.

787, 789Kinney v. State ................ 24, 49Klein, Spevack v ........ 593, 598-600,

604-05Kletz, Fischer v ........... 206, 216, 218Kline, Natanson v ....... 642, 646, 654,

659, 661-64, 667Knepper, Grant v ................. 9Koch, Fortner v . ................ 684Laburnum Corp., United Construc-

tion Workers v ......... 742-43, 745

[Vol. 36

INDEX TO VOLUME XXXVI

Lake, Holle v . .................. 371Lang, Application of ............ 812La Porta, National City Bank v. .. 116

*Lappert v. Lappert ...... 806, 809-11

Lewry, Fenster v ......... 51-54, 56, 58Leland Stanford Junior University,

National Supply Co. v .......... 367Leland Stanford Junior University

Board of Trustees, Salgo v. .. 640-42,653-54, 659, 671

Lerner v. Casey ................ 601Lincoln Mills, Textile Workers Union

v. .......................... 571-72Linn v. Local 114, Plant Guard

Workers ............... 742, 74546Livingston, John Wiley & Sons, Co.

v ........... 569, 571-79, 581-83, 585Livingston, Monroe Sander Corp.v. .......................... 583-84

Local 568, Southern Conference ofTeamsters v. Red Ball MotorFreight Inc ................. 582-83

Local 114, Plant Guard Workers,Lian v ................ 742, 745-46

Loewer v. Harris ................ 207Long v. Pan American World Air-

ways Inc . .................. 787-88Lorenz v. Watson .............. 100-01Louisiana, Cox v ................. 434Louisiana, Garrison v .... 429-31, 439-

40, 445Lynn v. Lynn ........... 806, 808-09MacPherson v. Buick ............. 194McAuliffe v. Mayor of New Bedford 597

McCann, U.S. v ................. 167McCollum v. Board of Education 132-33McCoy v. Mosely Machinery Co., 115McGuire v. Humble Oil & Refining

Co.. .................. 576, 578-84McVay, Block v ................. 661Macey v. Rozbicki ........... 785-86Machinists v. Gonzalez .. 742-43, 745-46Madera v. Board of Education .... 136Madison, Marbury v ......... 487, 503Malloy v. Hogan .... 594, 596, 599, 600,

604Mapp v. Ohio ................ 353, 381Marbury v. Madison .......... 487, 503Marks, Stevens v ............... 596

Martin v. Carbide & Carbon Cher-icals Corp . .................... 649

Maryland, M'Culloch v ......... 796-97Mayor of New Bedford. McAuliffev .. ............................ 597

M'Culloch v. Maryland ....... 796-97Meinhard v. Salmon .............. 260Merrill, Lynch, Pierce, Fenner &Beane ...................... 98, 10

Mid-Bronx Holding Corp., MuldoonV .............................. 589-90

Miles v. Van Gelder .............. 660Miller, United States v ....... 412, 414Miller, United States v ............ 168Minkoff v. Brenner ...... 14, 25, 50, 127Minnesota, Northwestern States

Portland Cement Co., v. .. 387-88, 400Minnifield, United States v .... 170-71Miranda v. Arizona .... 136, 14145, 158,

160-66, 171-73, 382, 802, 804, 806Mitchell v. Robinson .. 64647, 649-50,

654, 662, 664-66Mitchell, United Public Workers v. 605Mohawk National Bank v. Chalifaux

116, 119Mohr v. Williams ........... 646, 664Monroe Sander Corp. v. Livingston

583-84*Moore-McCormack Lines, Inc.,

Waldron v ........................ 348Moran, Bonner v .................. 685Moresse, Arcara v ............... 8-10Morton, Teamsters Union v ........ 742Mosely Machinery Co., McCoy v. 115Motorola, Nelson Radio & Supply

Co. v . ...................... 609-10Muldoon v. MidlBronx Holding

Corp . ...................... 589-90Munn v. Illinois ................ 499Murphy, Gardner v ............ 602-03Muskegon, United States v ........ 799Musguire, United States v. .... 167-70Nassau Discount Corp. v. Allen .... 118Natanson v. Kline .......... 642, 646,

654, 659, 661-64, 667National City Bank v. La Porta .... 116National City Bank v. Prospect Syn-

dicate, Inc . .................. 115National State Bank v. Dzurita .... 114National Supply Company v. Leland

Stanford Junior University .... 367

1967-68]

FORDHAM LAW REVIEW

Neenan v. Woodside Astoria Trans-portation Co . ................ 48

Neff, Pennoyer v ................. 3, 6Nelson v. County of Los Angeles .. 601Nelson Radio & Supply Co. v. Moto-

rola ........................ 609-10Nesmith, United States v ......... 167New Hampshire, Chaplinsky v .... 447New Haven Board & Carton Com-

pany, Simon v ................. 367New Jersey, Garrity v .... 593, 598-600,

605-06New Orleans Police Department,

Callahan v ..................... 597New York, Winters v ............. 449New York & Pennsylvania Motor

Express, Inc., Eider v. 17, 21, 23, 25,48, 125

New York Times v. Sullivan .... 429-30,439-40, 443-46, 448, 450-51, 816

Nikrasch, United States v ......... 803Northeast Airlines, Inc., Kilberg v.

787, 789Northwest Airlines, Inc., Cattaro v. 413Northwestern States Portland Ce-

ment Co. v. Minnesota .... 387-88, 400Nunan, The Evergreens v .......... 32Nye v. United States ............ 437O'Connell, Quick v ............... 126Ohio, Mapp v ................. 353, 381Ohio Valley Electric Corp. v. General

Electric Co ..................... 331Ordway v. White .............. 13, 14Osborn v. Bank of the United States 796

*Owensboro National Bank v. Owens-

boro ................. 796-97, 800Pan American World Airways Inc.,

Long v . .................... 787-88Pan-Atlantic Steamship Corp., Ryan

Stevedoring Co. v .......... 360-61Paramount Film Distributing Corp.,

Starview Outdoor Theatre, Inc. v.338-39

Parden v. Terminal Railway of theAlabama State Dock Department 361

Parks v. United States .... 357-59, 361Paul H. Aschdav & Co. v. Kamen

& Co . ...................... 101-02Paulsen v. Gundersen ........ 652, 658Pearson, Dodd v ................. 812Peek, Deery v ................... 200

Pender, Heaven v ............... 194Pennekamp v. Florida ...... 427, 433-34Pennoyer v. Neff .................. 3, 6People v. Arnold ................ 144People v. Diaz .................. 56

*People v. Gallmon .............. 353*People v. Schwartz .............. 142

People's Tobacco Co., AmericanTobacco Co. v ............. 333, 335

Philadelphia Co. v. SEC ......... 772Philadelphia National Bank, United

States v . ...................... 749Philco Corp. v. Radio Corporation

of America .................... 335

Piano & Musical InstrumentWorkers, Local 2549 v. W. W.Kimball Co . .................. 576

Poller v. Columbia BroadcastingSystem, Inc . .................. 610

Powell v. Texas ................ 54President and Directors of George-

town College, Inc., Application of696, 700, 703

Proctor & Gamble, FTC v. .. 475, 477-78,525, 541, 557

Prospect Syndicate, Inc., NationalCity Bank v ................... 115

*Provenzo v. Sam ................ 370

Public National Bank & Trust Co. v.Fernandez .................... 110

Pugh, Sharpev . ................. 668Quality School Plan, Inc., Dailey v. 563Quatroche v. Consolidated Edison

Co ................... 24, 49, 124-26Quick v. O'Connell .............. 126Radio Corporation of America,

Philco Corp. v ............... 335Red Ball Motor Freight, Inc., Local

568, Southern Conference ofTeamsters v ................. 582-83

Redfern, American President Lines,Ltd. v ......................... 349

Reid, George Campbell PaintingCorp. v . .................... 601-02

Reines Distributors, Inc. v. AdmiralCorp . ...................... 610-11

Reliance Universal, Inc., UnitedSteelworkers of America v .... 574-76,

578, 585Reynolds & Co ................. 100-01Reynolds v. Sims .......... 307, 320-24

XVII' [Vol. 36

INDEX TO VOLUME XXXVI

Reynolds Metals Co., Highland Sup-ply Corp. v ................... 611

R. H. Johnson & Co ....... 99, 100, 104Richardson, Holt v ............... 322Rochin v. California ........ 167, 169

Roberts v. Wood ................ 661Roberts v. Young ............. 660-61

Robinson, Mitchell v... 646-47, 649-50,654, 662, 664-66

Root v. John Deere Co ............ 115Rosenstiel v. Rosenstiel ........ 807-08Rozbicki, Macey v ............. 785-86

Ryan Stevedoring Co. v. Pan-At-lantic Steamship Corp ........ 360-61

Sabateli, Security National Bank v. 588

Saeli, United Mutual Fire InsuranceCo. v ....................... 22, 23, 49

Salgo v. Leland Stanford Jr. Uni-versity Board of Trustees ... 640-42,

653-54, 659, 671

Salmon v. Hamborough Co .... 239-41Salmon, Meinhard v ............. 260

*Sam, Provenzo v ................. 370

Sam Morris .................... 344San Diego Building Trades Council

v. Garmon ..... 738, 742-43, 745-46Sands Point Marina, Inc., Copp v.

589, 592Schemerber v. California .... 166, 168-69,

172Schoenbrod v. Siegler ....... 809, 811School District, Dickman v ........ 133School District, Swart v .......... 133

*Schwartz, People v ............... 142

Schultetus, United States v .... 412, 414

Scott, Wilson v .................. 662Scripto, Inc. v. Carson .......... 388Sealy, Inc., United States v ........ 612SEC v. Chenery Corp. .. 772, 774, 776SEC, Philadelphia Co. v ........... 772Secretary of State, Aptheker v .... 614

Security National Bank v. Sabateli 588Sellers, Hinchey v .... 9, 30, 33, 36, 37,

45, 49*Shapiro, Thompson v ............. 613Sharpe v. Pugh .................. 668Shepard, Glanzer v ......... 194-97, 205Shonts v. Hirliman ............ 212-13Siegler, Schoenbrod v ......... 809, 811Simon v. New Haven Board &

Carton Company .............. 367

Simpson v. Union Oil Co .......... 494Sims, Reynolds v .......... 307, 320-24

Sinclair Refining Co. v. Atkinson .. 741Sipes, Vaca v ................. 742-46Slater v. Baker .................. 683Slochower v. Board of Education

598-600, 602Smerdon v. United States ...... 419-20Smith v. Donahue .............. 131

*Smolack, Farber v ................. 783Socony-Vacuum Oil Co., United

States v . ................. 479, 549Spevack v. Klein .... 593, 598-600, 604-05

Standard Oil Co. v. Johnson .... 798-99Standard Oil Co. of New Jersey v.

United States .................. 509Stanley v. United States .......... 413Stark v. United States .......... 420Starview Outdoor Theatre, Inc. v.

Paramount Film DistributingCorp ...................... 338-39

State, Atlanta Newspapers, Inc. v. 431

State, Baltimore Radio Show, Inc. v. 432State, Kinney v ................ 24, 49State National Bank v. Cantrell .... I11State Street Trust Co. v. Ernst .. 203-OS*State Tax Commission, First Agri-

cultural National Bank v ..... 795-96Statter v. Statter ................ 810Staver & Abbot Co. v. Blink ...... 245Stevens v. Marks ................ 596Stockham Valves & Fittings Inc.

Williams v ..................... 387Stoner v. California .............. 353

Sturgis, United States v .......... 140Suckow Borax Mines Consolidated,

Inc. v. Borax Consolidated, Ltd.336-37

Sullivan, New York Times v .... 429-30,439-40, 443-46, 448, 450-51, 816

Superior Court, Times-Mirror Co. v.426, 440

*Susquehanna Corporation, Dasho v.365, 368-69

Swart v. School District .......... 133Talmage, Bowers v ........... 654, 656Teamsters Local 776, Garner v .... 733,

737, 740Teamsters Union v. Morton ...... 742Television Station WCBS-TV, In re 341Tempia .............. 161, 165-166, 173

1967-68]

FORDHAM LAW REVIEW

Terminal Railway of the AlabamaState Dock Department, Pardenv . ............................ 361

Terpening, Daly v ....... 26, 28, 41, 49Texas, Powell v ................. 54Textile Workers Union v. Lincoln

M ills ...................... 571-72The Evergreens v. Nunan ........ 32

*Thompson v. Shapiro ............ 613Thornhill v. Alabama ............ 449Thompson & McKinnon .......... 103Tilbury, Kershaw v .............. 683Time, Inc. v. Hill ............. 449-50Times-Mirror Co. v. Superior Ct.

426, 440Tobacco and Allied Stocks, Inc. v.

Transamerica Corp .......... 338-39Toledo Newspaper Co. v. United

States ........................ 437Touche, Ultramares Corp. v ..... 194-97,

199, 201-205Transamerica Corp., Tobacco and

Allied Stocks, Inc. v ......... 338-39Trenton Potteries Co., United States

v .. ............................ 478Ultramares Corp. v. Touche .... 194-97

199, 201-05Union Oil Co., Simpson v ......... 494Union Trust Co. v. United States

406, 408, 412United Air Lines, Inc., United States

v . ................... 28-29, 126-27United Airlines, Inc. v. Wiener .... 409United Construction Workers v.

Laburnum Corp ..... 742-43, 745-46United Mutual Fire Insurance Co.

v. Saeli .................. 22-23, 49United Public Workers v. Mitchell 605United Shoe Machinery Corp., Han-

over Shoe, Inc. v ......... 500, 506United States v. Addyston Pipe &

Steel Co ....................... 478United States v. Arizona .......... 358United States v. Ball .......... 170-71United States v. Barnaby ........ 167United States v. Blalock ......... 803United States v. Bonanno ........ 381United States v. Boyd ............ 799United States, Brown Shoe Co. v. 504United States v. Columbia Steel Co.

479-80

United States, Chapin v ......... 361United States v. Corn Products Ref.

Co . ........................... 479United States, Dalehite v ......... 407United States v. Decker .......... 161United States, Department of Em-

ployment v ............ 798-99, 801United States v. E. I. Du Pont De

Nemours & Co ................. 506United States, Exploration Co. v.

328-29

United States v. Forslund ........ 167United States, Furumizo v ..... 417, 419United States v. General Motors

Corp . ........................ 608United States v. George .......... 703United States, Gorman v ......... 802United States, Gouled v ........ 171-73United States, Grafton v ......... 154United States v. Greer .......... 171United States v. Guest .......... 614United States v. Gunnels ...... 158-59

161-162United States, Hartz v ......... 417-18United States, Hochrein v ......... 414United States, Indian Towing v.

408, 410United States v. Karl Brandt ..... 673United States v. Jordan .......... 167United States v. McCann ........ 167United States v. Miller .......... 168United States v. Miller ........ 412, 414United States v. Minnifield .... 170-71United States v. Musguire ..... 167-70United States v. Muskegon ....... 799United States v. Nesmith ........ 167United States v. Nikrasch ........ 803United States, Nye v ............. 437United States, Parks v .... 357-59, 361United States v. Schultetus .... 412, 414United States v. Scaly, Inc ....... 612United States, Smerdon v ....... 419-20United States v. Socony-Vacuum Oil

Co . ...................... 479, 549United States, Standard Oil of

N. J. v . ...................... 509United States, Stanley v ......... 413United States, Stark v ........... 420United States v. Sturgis .......... 140United States v. Philadelphia Na-

tional Bank ................... 479

[Vol. 36

INDEX TO VOLUME XXXVI

United States, Toledo NewspaperCo. v . ........................ 437

United States v. Trenton PotteriesCo . .......................... 478

United States, Union Trust Co. v.406, 408, 412

United States v. United Airlines, Inc.28-29, 126-27

United States v. Vierra ........ 172-73United States v. Wheaton ........ 159United States v. Whisenhant ...... 173United States v. White .......... 170

*United States, Williams v .......... 357

United States v. Williamson ...... 168United States v. Wimberley .... 160, 162United States v. Yellow Cab Co.

608-09, 611-12United States Gypsum Company v.

United Steelworkers of America 580United Steelworkers of America v.

Reliance Universal Inc. 574-76, 578, 585United Steelworkers of America,

United States Gypsum Company v. 580Universal Oil Products Co., Winkler-

Koch Engineering Co. v .... 334, 339Utah Labor Relations Board, Gussv . ......................... 740-41

Vaca v. Sipes ................. 742-46Van Gelder, Miles v .............. 660Vierra, United States v ......... 172-73

*Vne v. Beneficial Finance Co .... 364,367-69

Voege v. American Sumatra TobaccoCorporation .................. 367

Wackenhut Corp. v. InternationalUnion, United Plant GuardWorkers .......... 573-76, 578, 585

*WValdron v.Moore-McCormack Lines,Inc . .......................... 348

Wall v. Brim ............... 652, 658Warden v. Hayden ............ 172-73Watson, Lorenz v. ............. 100-01Webb, Davenport v ........... 788-89

Weber v. Anheuser-Busch Inc. 737, 746Weston v. City Council of Charles-

ton ........................... 359Wheaton, United States v. ........ 159Whisenhant, United States v .... 173White, Ordway v ............... 13-14White, United States v ........... 170Wiener, United Airlines, Inc. v. ... 409Williams, Mohr v ........... 646, 664Williams v. Stockham Valves &

Fitting Co., Inc. .............. 387*Williams v. United States ........ 357

Willamson, United States v ........ 168Wilmington General Hospital, Fis-

cher v . ................... 656, 658Wilson, Burns v ............... 154Wilson v. Scott .................. 662Wimberley, United States v .... 160, 162Wmkler-Koch Engineering Co. v.

Universal Oil Products Co. .. 334, 339Winters v. New York ............ 449Wisconsin Employment Relations

Board, Amalgamated Ass'n ofStreet Employees Local 998 v. .. 734

Wisconsin Employment RelationsBoard, International Union Local232, UAW v ................... 736

Wood Dolson Co., Israel v .... 14, 17,23-26, 49

Wood v. Georgia ......... 433-34, 443Wood, Roberts v ................ 661Woodside Astoria Transportation

Co., Neenan v. ................ 48W. W. Kimball Co., Piano and

Musical Instrument Workers,Local 2549 v ................... 576

Yellow Cab Co., United States v.60S-09, 611-12

Yick Wo v. Hopkins ............. 794Young, Roberts v ............ 660-61Zerbst, Johnson v ............ 802-06Zorach v. Clauson ............... 130

1967-681

/i

COLLATERAL ESTOPPEL AND MOTOR VEHICLEACCIDENT LITIGATION IN NEW YORK

JOSEPHINE Y. KING*

INTRODUCTION

y Y should so much legal talent and energy be dissipated in litigatingthe interminable procession of motor vehicle negligence cases? The

question is not a new one. Despite the fact that trials are actually com-menced in only a fraction of the claims,1 they overflow court calendars.Substitute methods to determine liability and loss are theoretically plau-sible: a governmental agency patterned on Workmen's CompensationBoards2 or a panel of jurists aided by medical and other experts. A special-ized system for trying a class of disputes is not without precedent, aswitness arbitration of labor disputes, commissions to hear civil rightsmatters and other controversies in areas of public concern. These areoutside the conventional procedural mold, yet encompassed by theguarantees of substantive and procedural justice. Due process does notmandate a full-scale jury trial, although some may believe that only thispath of glory leads to the "adequate award."

If, pursuing the matter beyond suggestions of administrative alterna-tives to the present trial system, one suggests that the economic and legalpremises of tort liability are woefully inadequate to meet the accidentproblem in human terms, one can expect the most formidable opposition.Legal scholars have voiced their criticism for many years of a compensa-tion system, geared to fault rather than loss, have recognized that manyaccidents occur without assignable fault, have catalogued the hardship inuncompensated cases, and have deplored the "jackpot justice" ofminuscule and mammoth awards.3

Some have advocated a system of social insurance and other methodswhereby loss is not shifted but distributed over all or a large segment ofsociety. Opponents contend that the expense of a social insurance system

* Assistant Professor of Law, School of Law, State University of New York at Buffalo.

1. See Franklin, Chanin & Mark, Accidents, Money and the Law, 61 Colum. L. Rev.1 (1961).

2. 2 F. Harper & F. James, The Law of Torts, § 112 (1956); W. Prosser, Handbook ofthe Law of Torts, § 86 (3d ed. 1964) ; Green, Automobile Accident Insurance Legislation inthe Province of Saskatchewan, 31 J. Comp. Leg. & Int. Law 39 (1949).

3. A. Ehrenzweig, Negligence Without Fault (1951); 2 F. Harper & F. James, supranote 2 at §§ 11.4 & 13.2; Report by the Committee to Study Compensation for AutomobileAccidents to the Columbia University Council for Research in the Social Sciences (1932);James, The Columbia Study of Compensation for Automobile Accidents: An UnansweredChallenge, 59 Colum. L. Rev. 408, 408-11 (1959).

FORDHAM LAW REVIEW

is prohibitive, invites fraudulent claims, is impossible to administer andwould result in underpayment of claims.4

A sweeping transformation of the present system of compensation andof trying accident claims is unlikely to win acceptance in the near future.'This does not foreclose a more modest design. If we must live with thesystem, we ought to make it work better. At the pleading, trial and post-judgment stages, modifications, largely procedural, could result in mini-mizing delays and repetitious litigation without undue jeopardy to validclaims. The means lie chiefly in the fuller utilization of joinder procedures,special verdicts and other trial techniques and in the expansion of theavailability of collateral estoppel.

A nettling, inherent contradiction lurks in pursuing the dual aims ofefficiency in adjudication and of protection of the accident victim's rightto recover. If, in the future, a judgment will affect more persons uponmore matters than the rules of the past have permitted, somewhere aworthy claimant will be caught short. It becomes incumbent, therefore,on the bench, during the transitional period, and upon the bar, at all times,to inform litigants of the possible consequences of the decision in theirimmediate case. Perhaps a system of court notification to all participantsin the event, at the outset of the suit, would be advisable. This noticemight be followed by a pretrial conference with prospective plaintiffs anddefendants alerting them to the possible effect of the first adjudicationupon their respective rights.

The consideration that has always weighed heavily upon the conscienceof the court in deciding the binding effect of a judgment is the possibilityof infringing upon the right of due process.' But perhaps a parallel maybe drawn between the expansion of collateral estoppel and personal juris-diction7 and quasi in rem jurisdiction8 within the safeguards imposed bydue process of law.

4. Calabresi, Fault, Accidents and the Wonderful World of Blum and Kalven, 75 YaleL.J. 216 (1965); James, The Columbia Study of Compensation for Automobile Accidents:An Unanswered Challenge, 59 Colum. L. Rev. 408, 415-22 (1959); Keeton, ConditionalFault in the Law of Torts, 72 Harv. L. Rev. 401, 441 (1959) ; Marx, Compensation Insurancefor Automobile Accident Victims: The Case for Compulsory Automobile Insurance, 15Ohio St. L.J. 134 (1954); McVay, Reply to "The Case for Compulsory AutomobileCompensation Insurance," 15 Ohio St. L.J. 161 (1954).

5. Keeton, supra note 4, at 439.

6. See Hansberry v. Lee, 311 U.S. 32 (1940); Bigelow v. Old Dominion Copper Co.,225 U.S. 111 (1912); Elder v. New York & Pa. Motor Express, Inc., 284 N.Y. 350, 31N.E.2d 188 (1940); Good Health Dairy Prods. Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758(1937); Ordway v. White, 14 App. Div. 2d 498, 217 N.Y.S.2d 334 (4th Dep't 1961).

7. Homburger, The Reach of New York's Long-Arm Statute: Today and Tomorrow,

15 Buffalo L. Rev. 61 (1965); Homburger & Laufer, Expanding Jurisdiction over Foreign

[ Vol. 3 6

COLLATERAL ESTOPPEL

The long-arm statutes of today are strangers to the concepts of JusticeField in Pennoyer v. Neff,9 and yet it cannot be said that judicial regardfor due process has been brushed aside. The explanation is rather in thefact that the concept has undergone change (very dramatically in criminalprocedure) and that the requirements of due process are fulfilled, althoughjurisdictional bases have been greatly expanded. So too, to utilize col-lateral estoppel in situations where heretofore privity or mutuality havebarred the way is not to advocate that preclusion should not operatewithin the limits of due process. Jurisdictional concepts have changed inresponse to the need for more effective protection of at least certainclasses-residents of the forum and those injured in the forum.' 0 Whoserights are to be protected; and how and to what extent are determinationsof policy to be made in an ever evolving context? To encourage greaterflexibility in the application of collateral estoppel assumes that the courtscannot, and will not, countenance anything less than a full and fair op-portunity to be heard." Yet the time, place and conditions for exercisingthat right may, in the broader community interest, no longer be a choicedictated solely by the individual.

Initially, this article examines the tenor and terms of the statute gov-erning responsibility for the operation of motor vehicles in New York.Does legislative policy justify or counsel a particularistic approach tothe trial of accident claims? Does a main stream of common issues coursethrough such a high proportion of these cases that the conclusiveness of ajudgment may fairly bind more issues and more litigants here than inother categories of disputes?

The discourse proceeds from the statutory and early case law to anexamination of the doctrine of collateral estoppel and its application invehicle accident litigation. Cummings v. Dresher,'-' a microcosm of thecomplexities of preclusion is closely scrutinized. The article closes withsuggestions for procedural innovations.

Torts: The 1966 Amendment of New York's Long-Arm Statute, 16 Buffalo L. Rev. 67(1966).

8. See Seider v. Roth, 17 N.Y2d 111, 216 N.E2d 312, 269 N.YS.2d 99 (1966); Jonesv. McNell, 51 Misc. 2d 527, 273 N.Y..2d 517 (Sup. Ct. 1966); Comment, 16 Buffalo L.Rev. 769 (1967).

9. 95 U.S. 714 (1877).10. See Homburger & Laufer, supra note 7.11. See Hansberry v. Lee, 311 US. 32 (1940); Postal Tel. Cable Co. v. City of Newport,

247 U.S. 464, 476 (1918); Southern Pacific R.R. v. United States, 168 U.S. 1, 48-49 (1897);Graves v. Associated Transp., Inc., 344 F.2d 894, 900 (4th Cir. 1965); 1-B J. Moore,Federal Practice, ff 0.406 [2] (2d ed. 1965).

12. 18 N.Y.2d 105, 218 N.E.2d 688, 271 N.YS.2d 976 (1966).

1967]

FORDHAM LAW REVIEW [Vol. 36

I. THE POLICY OF OWNER RESPONSIBILITY AS EXPRESSED

IN THE PRESENT STATUTE

It is clear from the present provisions of Article VI of the Vehicle andTraffic Law that the legislature intended innocent victims of negligentlycaused accidents to have a financially responsible owner or operator torespond in damages for personal injuries or property damages.' " The lawmandates that application for registration of a motor vehicle be accom-panied by proof of financial security,14 and that such proof be continu-ously maintained during the registration period.15 The license and carregistration of the owner-driver,'" and the license of a driver other thanan owner 17 shall be revoked where a motor vehicle has been operatedabsent proof of financial security.' 8 Similarly, the privilege of a residentor non-resident to operate a vehicle of foreign registry on the highwaysof New York shall be revoked where the owner,19 or a driver not theowner,20 does not meet the standards of financial security.2' The minimumstandards of insurance coverage, whether owner's22 or operator's28 policyof liability insurance, are specified by the law.

Where, upon proof that financial security is no longer in effect, theregistration, driver's license or driving privilege has been revoked fol-lowing a motor vehicle accident in New York, such privileges will not berestored for a period of one year,24 and the Commissioner may require

13. The "Declaration of purpose" in the N.Y. Veh. & Traf. Law § 310(2) reads: "Thelegislature is concerned over the rising toll of motor vehicle accidents and the suffering andloss thereby inflicted. The legislature determines that it is a matter of grave concern thatmotorists shall be financially able to respond in damages for their negligent acts, so thatinnocent victims of motor vehicle accidents may be recompensed for the injury and financialloss inflicted upon them. The legislature finds and declares that the public interest can bestbe served in satisfying the insurance requirements of this article by private enterpriseoperating in a competitive market to provide proof of financial security through the methodsprescribed herein." Id.

14. N.Y. Veh. & Traf. Law § 312(1). The proof of financial security "shall be evidencedby a certificate of insurance or ... a financial security bond, a financial security depositor qualification as a self-insurer . . . ." Id.

15. N.Y. Veh. & Traf. Law § 318(1) (a).16. N.Y. Veh. & Traf. Law § 318(2)(a).17. N.Y. Veh. & Traf. Law § 318(3) (a).18. In the case of the non-owner driver, knowledge that proof of financial security was

not in effect is specified. N.Y. Veh. & Traf. Law §§ 318(3) (a)-(5) (a), as amended, (Supp.1967).

19. N.Y. Veh. & Traf. Law § 318(4) (a).20. N.Y. Veh. & Traf. Law § 318(5) (a).21. N.Y. Veh. & Traf. Law § 341.22. N.Y. Veh. & Traf. Law § 311(4) (a).23. N.Y. Veh. & Traf. Law § 318(8).24. N.Y. Veh. & Traf. Law §§ 318(9)(a)-(b).

COLLATERAL ESTOPPEL

evidence that (1) no cause of action has been commenced against theowner or operator within one year of the accident or that a release hasbeen obtained by the owner or operator, or (2) no judgment arising out ofsuch claim remains unsatisfied.2 ' Emphasis is added by the requirementthat where an owner or operator involved in an accident causing deathor bodily injury fails to submit proof of financial security within 48 hoursof the accident, the vehicle is subject to impoundment" and release maytake place only after final disposition of the claim "by payment of ajudgment or settlement by the owner, or by a final judgment in hisfavor ... ."I' A violation of the financial security provisions of ArticleVI constitutes a misdemeanor.

2 8

Under Article VII of the New York Vehicle and Traffic Law, -9 oper-ators' licenses and registrations shall be suspended for delinquency insatisfying judgments."0 In the case of bodily injury or death, any judg-ment for damages is a predicate of the suspension power; in the case ofproperty damages, failure to satisfy a judgment in excess of one hundredfifty dollars may result in suspension.3

Following the occurrence of an accident resulting in bodily injury ordeath or property damage exceeding one hundred fifty dollars, the owneror operator must furnish security within ten to sixty days to avoid sus-pension, unless he had in effect at the time of the accident an automobileliability policy.32

Section 388"3 is the crucial provision, fixing tort liability on the ownerof a vehicle negligently operated in the state of New York. It states:1. Every owner of a vehicle used or operated in this state shall be liable and respon-sible for death or injuries to person or property resulting from negligence in the useor operation of such vehicle, in the business of such owner or otherwise, by any personusing or operating the same with the permission, express or implied, of suchowner ....

3. As used in this section, "ownaer" shall be as defined in section one hundred

25. N.Y. Veh. & Traf. Law § 318(9)(c)(I)-(2). See also N.Y. Veh. & Traf. Law§§ 318(11) (a)-(b).

26. N.Y. Veh. & Traf. Law § 318(12) (a).27. N.Y. Veh. & Traf. Law § 318(12)(c).28. N.Y. Veh. & Traf. Law § 319.29. Motor Vehicle Safety Responsibility Act.30. N.Y. Veh. & Traf. Law § 332(a) (Supp. 1967). A bond or insurance policy must be

in force at the time of the accident. See also N.Y. Veh. & Traf. Law §§ 332(d), 341-43.31. N.Y. Veh. & Traf. Law § 332(b). For applicability of suspension sanctions and

security requirements to non-residents see N.Y. Veh. & Traf. Law §§ 338, 344.32. N.Y. Veh. & Traf. Law § 335(a).33. N.Y. Veh. & Traf. Law § 388. The basic provisions of this section are traceable to

1924, when the N.Y. H'way Law of 1909 was amended to add § 282-e. N.Y. Sess. Laws 1924,ch. 534. § 388 is derived from § 59 of the Veh. & Traf. Law as amended by N.Y. Sess. Laws1958, ch. 577.

1967]

FORDHAM LAW REVIEW

twenty-eight of this chapter and their liability under this section shall be joint andseveral.

This substantive provision is further implemented by a proceduralmethod to effect service of process upon a non-resident operator or non-resident owner of a vehicle operated with his permission in New York:§ 253. Services of summons on non-residents.

1. The use or operation by a non-resident of a vehicle in this state, or the useor operation in this state of a vehicle in the business of a non-resident, or the use oroperation in this state of a vehicle owned by a non-resident if so used or operatedwith his permission, express or implied, shall be deemed equivalent to an appointmentby such non-resident of the secretary of state to be his true and lawful attorney uponwhom may be served the summons in any action against him, growing out of anyaccident or collision in which such non-resident may be involved while using oroperating such vehicle in this state or in which such vehicle may be involved whilebeing used or operated in this state in the business of such non-resident or with thepermission, express or implied, of such non-resident owner; and such use or operationshall be deemed a signification of his agreement that any such summons against himwhich is so served shall be of the same legal force and validity as if served on himpersonally within the state and within the territorial jurisdiction of the court fromwhich the summons issues, and that such appointment of the secretary of state shallbe irrevocable and binding upon his executor or administrator.

This section and its predecessors3 4 represent an exception to the ter-ritorial concept of jurisdiction expounded in Pennoyer v. Neff, 3 and areforerunners of the long-arm statutes,36 in which state policy and dueprocess have achieved new accommodation.

Both section 388 and section 253 evidence the concern of the New Yorklegislature to reach the owner and driver of a vehicle the negligent opera-tion of which has proximately caused injuries to the person or propertyof another. In the following passages the development, re-affirmation andsteadfastness of the legislative policy is illustrated by reference to statu-tory provisions and case law.

Prior Legislation and the Issue of Permission in Single-stage Litigation

The counterpart of section 388 was introduced into the laws of NewYork by way of an amendment in 1924 to the old Highway Law of 1909."Prior to the enactment of section 282-e, common law prevailed in NewYork; the owner was not liable for the negligence of a driver unless thecar was operated on the owner's business or the owner was present and

34. The provision dates back to N.Y. H'way Law of 1909, § 285-a as amended by N.Y.Sess. Laws 1928, ch. 465. Its direct antecedent is § 52, N.Y. Sess. Laws 1958, ch. 568.

35. 95 U.S. 714 (1877).36. Scott, Jurisdiction Over Nonresident Motorists, 39 Harv. L. Rev. 563 (1926). See

Olberding v. Illinois Cent. R.R., 346 U.S. 338 (1953) ; Wuchter v. Pizzuti, 276 U.S. 13 (1928);Hess v. Pawloski, 274 U.S. 352 (1927).

37. N.Y. H'way Law of 1909, § 282-e, as amended, N.Y. Sess. Laws 1924, ch. 534.

[Vol. 36

COLLATERAL ESTOPPEL

the driver was his agent, subject to his control.3 8 While proof that thedefendant owned the car raised a presumption that it was being operatedfor his benefit,3 9 such presumption could be overcome by substantial evi-dence that no agency relationship existed between the owner and theallegedly negligent driver. The presence of the owner at the time of theaccident was in itself insufficient to impose liability where the driver wasemployed and controlled by another."0 Therefore the presence and/orpermission of the owner had to be supplemented by control or benefitunder a theory of principal-agent accountability.41

Before the enactment of section 282-e, the recurring attempts to holdthe owner for the negligence of a member of his family driving his carwere met by the agency argument.4 2 If a son, in pursuit of his own pleasureor benefit, borrowed his father's car and negligently caused injury toanother, the latter could not hold the father accountable since the driverwas not the agent of the owner. While noting that other jurisdictionsapplied a "special rule" of agency in family use cases, the New YorkCourt of Appeals in 1917 concluded that such an approach was "novel,""weak" and "far-fetched. 43

But in this common law agency period, the issue of permission wasemerging as the critical factor. Liability did not attach to the owner,even though the car was operated in the business of the owner, wherethe injured party was a passenger invited or permitted to ride by thedriver against explicit instructions to the contrary by the owner. In suchcases, the court held that the driver, servant or agent, was acting outsidethe scope of his employment.4 4 In a case which, analytically, straddlesthe common law and statutory periods, Chief Judge Cardozo found theowner liable under both theories, where the driver of the owner's truckpermitted another employee to operate it without the owner's authoriza-tion.4" The basis of common law liability was the negligence of the servant(driver) who continued on the truck and had the power and authority

38. Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78 (1917); Van Blaricom v. Dodgson, 220N.Y. 111, 115 N.. 443 (1917).

39. Ferris v. Sterling, 214 N.Y. 249, 253, 108 N.E. 406, 407 (1915).40. Potts v. Pardee, 220 N.Y. 431, 116 NZE. 78 (1917).41. Id.42. See Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406 (1915); Tanzer v. Read, 160 App.

Div. 584, 145 N.Y.S. 708 (ist Dep't 1914); Cunningham v. Castle, 127 App. Div. 580, 111N.Y.S. 1057 (1st Dep't 1908); Maher v. Benedict, 123 App. Div. 579, 108 N.Y.S. 228 (2dDep't 1908).

43. Van Blaricom v. Dodgson, 220 N.Y. 111, 115-16, 115 N.E. 443, 444 (1917).44. Goldberg v. Borden's Condensed Milk Co., 227 N.Y. 465, 125 N.E. 807 (1920); Rolfe

v. Hewitt, 227 N.Y. 486, 125 NX.. 804 (1920).45. Grant v. Knepper, 245 N.Y. 158, 156 N.E. 650 (1927).

1967]

8 FORDHAM LAW REVIEW [Vol. 36

to control its operation by the substitute.4" The statutory liability of theowner was predicated on the authorized use of the truck even though themethod of operation (by the substitute) was unauthorized.47

Section 282-e of the Highway Law read as follows:

Every owner of a motor vehicle operated upon a public highway shall be liable andresponsible for death or injuries to person or property resulting from negligence in theoperation of such motor vehicle, in the business of such owner or otherwise, by anyperson legally using or operating the same with the permission, express or implied,of such owner.4 s

With the enactment of this provision, the consenting owner no longerenjoyed protection from liability if the car was employed solely for apermitted private purpose of the borrower-driver. 4 The statute expressedtwo conditions precedent to liability, permission and legal use or opera-tion. The differentiation between these two conditions does not seemto appear clearly stated until Arcara v. Moresse ° since the earlier casesconcentrated upon the nature of the permission granted.

Thus, the owner was not held liable to injured passengers where hecould prove that his driver invited or permitted riders against the ex-plicit instructions of the owner,5 ' or to other travelers on the highwaywhere the driver departed from the permitted area of use52 or wherethe permitee entrusted the car to another without the owner's authoriza-tion53 or where the owner had no knowledge that the car was borrowed,knowledge being a prerequisite for consent or permission." In someinstances where the driver violated instructions of the owner, the courtconcluded that the car was illegally used or operated and refused to im-pose liability on the owner.55 It was also determined by the earlier cases,that section 282-e was sufficiently broad to encompass owner liability

46. Id. at 163-64, 156 N.E. at 650-51.47. Id.48. N.Y. Sess. Laws 1924, ch. 534. See note 33 supra. The wording of the permission was

modified slightly when it became § 59 of the Veh. & Traf. Law of 1929 and again bysubsequent amendments.

49. See Psota v. Long Island R.R., 246 N.Y. 388, 393, 159 N.E. 180, 181 (1927).50. 258 N.Y. 211, 179 N.E. 389 (1932). See also Grant v. Knepper, 245 N.Y. 158, 156

N.E. 650 (1927).51. Compare Psota v. Long Island R.R., 246 N.Y. 388, 159 N.E. 180 (1927), with

Cohen v. Neustadter, 247 N.Y. 207, 160 N.E. 12 (1928).52. Chaika v. Vandenberg, 252 N.Y. 101, 169 N.E. 103 (1929).53. Owen v. Gruntz, 216 App. Div. 19, 214 N.Y.S. 543 (4th Dep't 1926).54. Atwater v. Lober, 133 Misc. 652, 233 N.Y.S. 309 (Cayuga County Ct. 1929). See

also Owen v. Gruntz 216 App. Div. 19, 214 N.Y.S. 543 (4th Dep't 1926).55. Chaika v. Vandenberg, 252 N.Y. 101, 169 N.E. 103 (1929); Fluegel v. Coudert, 2,14

N.Y. 393, 155 N.E. 683 (1927).

1967] COLLATERAL ESTOPPEL

both to passengers injured in his car as well as to travelers on the high-way.

5 6

The first condition, express or implied permission, has continued in thesame form through various changes in the law. The clause "negligencein the operation" has since 1958 read "negligence in the use or opera-tion, 5 7 and the word "legally," modifying "using and operating," wasdeleted in the same year.58 While use as opposed to operation, and legalor lawful use as opposed to unlawful use raised some difficulties in con-struction, the early decisions were preoccupied with permission.

In Arcara v. Moresse," the factual situation resembled Grant v. Knep-per,60 and a recent case of considerable importance in New York law,Hinchey v. Sellers." Grant involved a permittee who was a servant drivingon his master's business. Arcara and Hinwchey involved the loan of a car toa friend for the latter's personal benefit. The reasons which spared theowner from liability in Hinchey are discussed subsequently. 2 But inGrant and in Arcara, liability attached since the unauthorized substitutedriver was not banned from the car, and the original permittee or legaluser remained in the car as "master of the ship" after having turned thewheel over to another. 3

The court drew a distinction between the owner's instructions to hisgratuitous bailee not to allow another to drive, and a restriction not toaccept another as guest in the car.14 The former, said the court, related

56. Cohen v. Neustadter, 247 N.Y. 207, 160 N.E. 12 (1928); Psota v. Long Island R.R.,246 N.Y. 388, 159 N.E. 180 (1927). N.Y. Veh. & Traf. Law § 282-e and its successors didnot abrogate the common law rule that where the driver was not the agent of the owner,the driver's negligence did not bar the owner's claim for property damage. See Mills v.Gabriel, 259 App. Div. 60, 18 N.Y.S.2d 78 (2d Dep't), aff'd, 284 N.Y. 755, 31 N.E.2d 512(1940); Gochee v. Wagner, 232 App. Div. 401, 250 N.Y.S. 102 (4th Dep't 1931), rev'd onother grounds, 257 N. Y. 344, 178 N.E.2d 553 (1932). (The owner may recover from a thirdperson for damages to his car where he was not present, the car was used for the permittee'sown purposes, and the permittee and other driver were both negligent. The negligence of thepermittee is not imputed to the owner-plaintiff).

57. N.Y. Sess. Law 1958, ch. 577, § 1.58. Id.59. 258 N.Y. 211, 179 N.E. 389 (1932).60. 245 N.Y. 158, 156 N.E. 650 (1927). See text accompanying notes 45-47 supra.61. 7 N.Y.2d 287, 165 N.E.2d 156, 197 N.Y.S.2d 129 (1959).62. See text accompanying note 208 infra.63. The court accepted the plaintiffs' version in Arcara, that the original borrower sat

beside his substitute driver when the negligence of the latter resulted in the collision. Brieffor Appellant at 22, Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389 (1932).

64. How valid is this distinction?(1) A, in loaning his car to B, tells him: "You must not permit anyone else to drive it."

B ignores the instruction; C drives A's car negligently; A is liable.(2) A, in loaning his car to B, tells him: "You must not permit C to go with you in the

FORDHAM LAW REVIEW

to the manner of operation and its violation did not make the "use"illegal or without permission." Therefore, when the defendant owner inArcara consented to his nephew's borrowing the car for a personal errandand while returning from the errand an invitee of the nephew negligently.drove the car,66 the nephew was "legally using" the car and his violationdid not relieve the owner of liability. Legal use and permission persisteddespite disobedience to limiting instructions as to who might drive. 7

The decision may be interpreted as an expression of policy favoringowner liability. Where there was some doubt that the permission includedthe bailee's substitute, the foundation of owner liability was shored up byholding that the bailee continued as legal user of the car. It is difficultto see how the qualification "legally" (using and operating) accomplishedmuch more than the requirement of permission, although some casesstruggled to make a distinction. On the other hand, the dual terms "use"and "operation" may represent distinct acts and the inclusion of bothmeets the situation of the borrower who entrusts the driving to another.

The vast number of cases to determine owner liability under the suc-cessors of the old statute, section 59,68 and the present section 3889 havecentered on the scope of permission." If the driver's negligence is rea-sonably clear, proof will be concentrated on the circumstances and con-ditions attending the loan of the car."' Thus in these single-stage cases,unencumbered by questions of the judgment's effect upon subsequentclaims and claimants, it is apparent that the major issues are few andrepetitive-negligence (and contributory negligence) and permission.The relatively uncomplicated and familar structure of the single lawsuitunder section 388 lends itself to the operation of estoppel when the liti-gation reaches the multiple stage.

The premises which emerge from the half-century of statutory and caselaw development in the motor vehicle field appear to be: that policy isconspicuously plaintiff-oriented; that owner liability depends on imputednegligence and permission; and that these decisive issues recur so con-

car." B ignores the instruction; C not only accompanies B but also drives A's car; A Is notliable.

65. Arcara v. Moresse, 258 N.Y. 211, 214, 179 N.E. 389, 390 (1932).66. Record at 23, 32, 40.67. There are some contradictions in the testimony of the nephew as to whether or not

his uncle told him on this particular occasion not to permit anyone else to drive the car.68. N.Y. Veh. & Traf. Law § 59 (now N.Y. Veh. & Traf. Law § 388).69. N.Y. Veh. & Traf. Law § 388.70. See, e.g., Burmaster v. State, 7 App. Div. 2d 775 (3d Dep't 1958), aff'd, 7 N.Y.2d

65, 163 N.E.2d 742, 195 N.Y.S.2d 385 (1959); Lozada v. Copeland, 207 Misc. 382, 138N.Y.S.2d 521 (Sup. Ct. 1955).

71. See text accompanying notes 208-15 infra.

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19671 COLLA TERAL ESTOPPEL

sistently that attorneys must recognize the importance of contesting themvigorously and competently. Once these issues have been fully litigatedshould their determination be binding only upon the original adversaries?

II. A.PPLICATION OF COLLATERAL ESTOPPEL

For the purpose of this paper, it is not essential to review the interestingorigins of res judicata7 2 (merger and bar)7 3 and of collateral estoppel.74

The tenets underlying both doctrines7" and the demarcation between themspring from the elusive concept of a single cause of action.7" Preliminarily,it is sufficient to point out that the application of collateral estoppel willpreclude the redetermination of certain issues of fact or law77 betweencertain categories of parties. The crucial questions are, therefore, whichissues and which litigants?78 Are the classic rules restricting the avail-ability of estoppel essential guardians of due process, or impediments toinsuring finality of judgments and avoidance of repetitious litigation?The recent decisions of New York's highest court discard or remoldsome of these rules and presage a cautiously expanded role for preclusion.Perhaps it is more accurate to say that the rules are being viewed froma fresh perspective, dominated by the ever-lengthening shadow of negli-gence cases.

Parties and Privies

The traditional requirements relating to parties invoking or resistingthe plea of collateral estoppel devolve into three separate concepts:

72. Buckland, Text-Book of Roman Law 695-98 (3d ed. 1963); Mfillar, The Premises ofthe Judgment As Res Judicata in Continental and Anglo-American Law, 39 Mich. L. Rev.238 (1940); Scott, Introduction to Symposium on Res Judicata, 39 Iowa L. Rev. 214(1954).

73. Restatement of Judgments §§ 47, 48 (1942).74. Millar, The Historical Relation of Estoppel by Record to Res Judicata, 35 Il. L.

Rev. 41 (1940).75. Cleary, Res Judicata Reexamined, 57 Yale L.J. 339, 342-49 (1948); Polasky,

Collateral Estoppel-Effects of Prior Litigation, 39 Iowa L. Rev. 217 (1954) ; Scott,Collateral Estoppel by Judgment, 56 Harv. L. Rev. 1 (1942).

76. Smith v. Kirkpatrick, 305 N.Y. 66, 111 N.E.2d 209 (1953); De Coss v. Turner &Blanchard, Inc., 267 N.Y. 207, 196 N.E. 28 (1935); Schuylkill Fuel Corp. v. B. & C.Nieberg Realty Corp., 250 N.Y. 304, 165 N.E. 456 (1929); C. Clark, Code Pleadings, 137(2d ed. 1947); McCaskill, Actions and Causes of Action, 34 Yale L.J. 614, 638 (1925).

77. Commissioner v. Sunnen, 333 U.S. 591 (1948); Zimmerman v. Matthews TruckingCorp., 203 F.2d 864, modified, 205 F.2d 837 (8th Cir. 1953); Restatement of Judgments§§ 68, 70 (1942).

78. See generally Notes 52 Colum. L. Rev. 647 (1952); 52 Cornell L.Q. 724 (1967);65 Harv. L. Rev. 820 (1962); 36 N.Y.U.L. Rev. 1158 (1961).

79. B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 225 N.E.2d 195, 278 N.Y.S.2d 596 (1967);Cummings v. Dresher, 18 N.Y.2d 195, 218 N.E.2d 688, 271 N.YS.2d 976 (1966).

FORDHAM LAW REVIEW [Vol. 36

privity, adversarial status and mutuality. Commencing with the proposi-tion that a prior judgment binds only parties and their privies,8" the lawhas defined privity as "mutual or successive relationships to the samerights of property."'" Generally, the successor is bound in a suit com-menced before the grant, sale, assignment or mortgage of the property towhich he has succeeded. 2 There is an identification of the successor andthe predecessor respecting the same legal right.83 The notion of privityencompasses also those actually controlling a lawsuit while not appearingas parties of record. 4 Finally, those whose interests are represented inprior litigation brought on their behalf by a fiduciary are concluded bythe judgment,8 as are members of a class in class actions,80 and personswith future interests.8"

Within the confines of this rule, that only parties and their privies arebound, there is little prospect of liberalizing the use of collateral estoppelin accident cases via modification of the established privity concept. An

80. Restatement of Judgments §§ 79, 83 (1942); 1 A. Freeman, Judgments, § 438 (5thed. 1925); The party must appear in the same capacity in both lawsuits, Restatement ofJudgments § 80 (1942) ; 1 Freeman §§ 418, 419. The court of appeals stated in St. John v.Fowler, 229 N.Y. 270, 128 N.E. 199 (1920): "The rule is that a judgment in another actioncannot be admitted save for or against parties or privies to it; it being received on theprinciple of estoppel, to which it is essential that it should be mutual." Id. at 274, 128 N.E.at 200. See also Peare v. Griggs, 8 N.Y.2d 44, 167 N.E.2d 734, 201 N.Y.S.2d 326 (1960);First Nat'l Bank v. Shuler, 153 N.Y. 163, 47 N.E. 262 (1897).

81. Haverhill v. International Ry., 217 App. Div. 521, 522, 217 N.Y.S. 522, 523 (4thDep't 1926), aff'd mem., 244 N.Y. 582, 155 N.E. 905 (1927) ; 1 Freeman, supra note 80, at§ 439; S. Greenleaf, Evidence § 189 (16th ed. 1899).

82. 1 Freeman supra note 80, at § 440.83. The privity requirement was interpreted in Commissioners of the State Ins. Fund

v. Low, 3 N.Y.2d 590, 148 N.E.2d 136, 170 N.Y.S.2d 795 (1958) to deny a defensive plea ofcollateral estoppel. In the first action, Low sued the State of New York in the court of claimsfor personal injuries resulting from a collision with a state police car. The court found thestate's servant negligent and Low free from contributory negligence. In the second action,the Fund sued as statutory assignee of the cause of action of the widow of a passenger-trooper in the state car. Low asserted that the Fund as a state agency was in privity withthe state as defendant in the court of claims action and that the prior judgment clearingLow of negligence was assertable against the Fund. The court held, however, that provisionsof the Workmen's Comp. Law manifested the legislative intent to treat the Fund as aprivate carrier and as such the Fund was not privy to the state and therefore not boundby the former judgment. Cf. MVAIC v. National Grange Mut. Ins. Co., 19 N.Y.2d 115, 224N.E.2d 869, 278 N.Y.S.2d 367 (1967); Flynn v. State, 53 Misc. 2d 929, 280 N.Y.S.2d 512(Ct. Cl. 1967).

84. Restatement of Judgments § 84 (1942); 1 Freeman, supra note 80, at § 431. Aprior judgment may be used against a secret party in control of the prior action. SeeCaterpillar Tractor Co. v. International Harvester Co., 120 F.2d 82 (3d Cir. 1941).

85. Restatement of Judgments § 85 (1942); 1 Freeman, supra note 80, at § 430.86. Restatement of Judgments § 86 (1942); 1 Freeman, supra note 80, at § 436.87. Restatement of Judgments § 87 (1942).

COLLATERAL ESTOPPEL

inroad may be possible, however, by structuring the class of "party" toinclude those who are "vouched in." The suggestion, subsequently devel-oped, is that in negligence suits against drivers, the owners of the vehiclesinvolved should be given formal notification and a full opportunity todefend with the result that they will be bound by the final judgment."'

Co-Parties

What happens to the general rule that only parties and their privies arebound, when the prior judgment is not between a single plaintiff and asingle defendant but involves co-plaintiffs or co-defendants? The positionof the Restatement89 is that a judgment does not conclude parties," as toissues not litigated between themselves. The rationale of the rule is thatone who is to be bound by a decision must have had his day in court toconfront his opponent qua opponent. It is perhaps conceivable that theissue between one defendant and his former co-defendant may be differ-ent." But this is not the usual case determining liability in motor vehicleaccidents; the issues are normally identical-negligence and contributorynegligence. Collateral estoppel cannot enter the picture if the issues arenot identical. As Justice Halpern stated in Ordway v. White :. 2 "If it isdemonstrated that, because of peculiar circumstances in a particular case,the defendant did not have a full and fair opportunity to present hisversion of the accident upon the trial . . it may well be held that theadjudication in that action should not bar relitigation of the issue in hissubsequent action upon his own claim."93 Granted this flexibility anddiscretion, Glaser v. Huette94 should no longer inhibit the availability ofcollateral estoppel in a subsequent suit involving identical negligenceissues between former co-defendants.95

88. See Recommendations pp. 42-47 infra.89. Restatement of Judgments § 82 (1942); 1 Freeman, supra note SO, at § 423.90. The formal alignment of the parties is not decisive. The important fact is whether

the issues were raised and determined between them. I Freeman, supra note 80, at § 423.91. See Self v. International Ry., 224 App. Div. 238, 230 N.Y.S. 34 (4th Dep't 1928);

Trotter v. Klein, 140 Misc. 78, 249 N.Y.S. 20 (Sup. Ct. 1930).92. 14 App. Div. 2d 498, 217 N.Y.S.2d 334 (4th Dep't 1961).93. Id. at 502, 217 N.Y.S. 2d at 340. See Panakos v. Corbecki, 44 Misc. 2d 208 (Nassau

County Dist. Ct. 1964).94. Glaser v. Huette, 232 App. Div. 119, 249 N.Y.S. 374 (lst Dep't 1931), aff'd mem,

256 N.Y. 686, 177 N.E. 193 (1931).95. For cases preceding Glaser which did not adhere to the adversarial requirements,

see, e.g., Eissing Chem. Co. v. People's Nat'l Bank, 205 App. Div. 89, 199 N.S. 342 affdmem., 237 N.Y. 532, 143 N.E. 731 (1923); Duignan v. Pawlikowski, 134 Misc. 22, 235N.Y.S. 125 (Sup. Ct. 1929) (plaintiff in the second action could not prove freedom fromcontributory negligence since his negligence had been determined by the prior judgment forthe plaintiff against the co-defendants).

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In Glaser, the first action was brought in municipal court by injuredpassengers against the driver of one car (Glaser) and the owner and driverof the second car (Huette and Austin). Both drivers were found negligentand judgment was entered against all of the defendants. The second suitbrought by former defendant Glaser charged that Austin's negligentdriving resulted in personal injuries and property damages to him. Defen-dant Huette asserted "res judicata" as a defense. The court held that thepassengers' action determined only defendants' negligence toward thepassengers and did not settle the liability of the co-defendants inter se. 0

Between this appellate division decision, affirmed without opinion in1931, and Minkoff v. Brenner 7 in 1962, lower court cases 8 found theidentity of issues test of Israel v. Wood Dolson Co.9 more persuasive thanthe Glaser adversarial requirement.10 But decisions in the first' 0 ' andsecond 10 2 departments adhered to the rule. Ordway v. White, 03 a fourthdepartment case in 1961 found Glaser no longer "controlling."

The confusion was not dispelled with Minkoff either by the appellatedivision's memorandum 10 4 or the court of appeals' affirmance withoutopinion.' The factual situation involved three vehicles. The collisionbetween plaintiff's and defendant's cars propelled the plaintiff's car againsta parked vehicle. The owner of the parked vehicle sued both drivers andthe owner of one car in municipal court (Borough of Queens) and recov-ered against all of them. The former defendant driver then sued thedriver and owner of the second car in the City Court of New York City.The latter moved to amend their answer to plead the municipal courtjudgment as "res judicata" on the issues of negligence and contributorynegligence. The motion was denied and the denial affirmed by successiveappellate decisions'06 culminating in the affirmance by the court ofappeals.

107

96. 232 App. Div. 119, 249 N.Y.S. 374, 375 (1st Dep't 1931).97. 10 N.Y.2d 1030, 180 N.E.2d 434, 225 N.Y.S.2d 47 (1962).98. See 5 J. Weinstein, H. Korn & A. Miller, New York Civil Practice II 5011.37, n.231

(1966); James v. Saul, 17 Misc. 2d 371, 184 N.Y.S.2d 934 (N.Y.C. Mun. Ct. 1958).99. Israel v. Wood Dolson Co., 1 N.Y.2d 116, 134 N.E.2d 97, 151 N.Y.S.2d 1 (1956).100. See Moran v. Lehman, 7 Misc. 2d 994, 996-97, 157 N.Y.S.2d 684, 686-87 (N.Y.C.

Mun. Ct. 1956).101. Friedman v. Salvati, 11 App. Div. 2d 104, 201 N.Y.S.2d 709 (1st Dep't 1960).102. Grande v. Torello, 12 App. Div. 2d 937, 210 N.Y.S.2d 562 (2d Dep't 1961).103. 14 App. Div. 2d 498, 217 N.Y.S.2d 334 (4th Dep't 1961).104. 13 App. Div. 2d 838 (2d Dep't 1961).105. 10 N.Y.2d 1030, 180 N.E.2d 434, 225 N.Y.S.2d 47 (1962).106. 13 App. Div. 2d 838 (2d Dep't 1961).107. 10 N.Y.2d 1030, 180 N.E2d 434, 225 N.Y.S.2d 47 (1962). For a subsequent lower

court opinion preferring Justice Halpern's rationale, see Sunshine v. Green Bus Lines, Inc.,41 Misc. 2d 1037, 247 N.Y.S.2d 369 (Sup. Ct. 1963). But see Terwilliger v. Terwilliger, 52Misc. 2d 404, 276 N.Y.S.2d 8 (Sup. Ct. 1966).

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What is currently needed in this narrow but troublesome sector ofcollateral estoppel is a fully expounded ratio decidendi by the highestcourt of New York laying Glaser to rest or offering convincing reasonsto sustain its viability. The prospect of contribution 0 8 would seem to bea sufficient motivation for each defendant to hold in his co-party bythrusting as much of the fault upon him as possible. No defendant'sattorney should be ignorant of this post-judgment opportunity to sharethe damages and if his client cannot attain the whole loaf of exoneration,the half loaf of contribution is better than none.

It is assumed above that the liability picture does not permit a separa-tion of the co-defendants into an active and a passive wrongdoer.'" If sucha distinction could be alleged," 0 the secondary tortfeasor would have theright to interpose a cross-claim in the nature of impleader."' Since thecause of action in this type of cross-claim would bear a close relationshipto the plaintiff's claim and its outcome, a judgment would conclude allparties of the main action and the cross-claim and operate as collateralestoppel on the issues necessarily determined.

The availability of the impleader type of cross-claim under circum-stances which make few demands on the cross-claimant, that is, where theplaintiff in the main action has obligingly joined both defendants andsolved any difficulties of notice and basis jurisdiction and where a sub-stantial portion of the evidence would be the same as in the main action,should prompt its more extensive use by defense counsel.

If the courts do not take the initiative by overruling Glaser, then it isrecommended that serious consideration be given by the legislature to acompulsory cross-claim in vehicle accident cases. The New York statutespermitting cross-claims" 2 and counterclaims" 3 arising from any cause ofaction the defendant possesses, clearly express a purpose of economy oflitigation. Where, as in an indemnity situation, the cross-claim rests whollyor partially on the same factual foundation as the main action, one adjudi-cation binding upon all claims is manifestly preferable in terms of con-sistency, time and expense. If a defendant alleging a claim against hisco-party fails to utilize the impleader type cross-claim, he should risk the

108. N.Y. CP.L.R. §§ 1401, 1402.

109. See Berg v. Town of Huntington, 7 N.Y.2d 871, 196 N.Y.S.2d 1001 (1959); Eganv. Syracuse Savings Bank, 28 Misc. 2d 256, 209 N.YS.2d 612 (Sup. Ct. 1961); Cole v.Long Island Lighting Co., 24 Misc. 2d 221, 196 N.Y.S.2d 187 (Sup. Ct. 1959).

110. Mandello v. Brooklyn Doctors Hospital, 8 App. Div. 2d 845, 190 N.YS.2d 436 (2dDep't 1959); Valvo v. Hope's Windows, Inc., 230 N.Y-S.2d 956 (Sup. CL 1962). Thesecases indicate that if there is a possibility of a right of indemnification, the motion to bringa cross complaint will be granted.

111. N.Y. C.P.L.R. § 3019(b).112. Id.113. N.Y. C.P.L.R. § 3019(a).

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same consequences as one who fails to interpose a compulsory counter-claim in federal court." 4

If a compulsory cross claim is a desirable procedural innovation inaccident cases, on the theory that co-defendants are genuine adversaries,there is even more justification for introducing a compulsory counterclaimin New York in this particular category of litigation. The substantialliberalization in 1936 of the counterclaim rule in New York",, resultingin a provision similar to CPLR section 3019(a) stopped short of any com-pulsion. The Advisory Committee concluded that a mandatory rule wasnot necessary or clearly advantageous." 0 Granted that collateral estoppelalone would bar a second lawsuit in certain instances, a compulsory coun-terclaim may accomplish more if asserted against the plaintiff and others,by litigating the issues among parties and thus avoiding possible dueprocess difficulties when collateral estoppel or res judicata is later pleaded.It seems necessary in this class of accident cases to supplement thenatural pressures which would motivate a defendant to bring his counter-claim.

Mutuality

Where identical adversary parties seek to relitigate identical issues,estoppel may operate with perfect mutuality. Each party is bound by theprior judgment to the same extent as his opponent. Where this classicsymmetry is not present, courts have in varying degrees adopted anoffensive-defensive distinction. Collateral estoppel may serve as a shieldbut not as a sword; it may be thus defensively invoked only against aformer plaintiff.

The first of these has heretofore, with few exceptions, been assiduouslyobserved in New York; the second has on occasion caused the courts somepause but was not followed in Good Health Dairy Products Corp. v.Emery." 8 The idea underlying the second limitation is that where a non-party to the first action is permitted to use a judgment defensively againsta prior party, the latter must have occupied the position of a formerplaintiff who enjoyed the advantage of selecting the time, place andstrategy for pursuing his claim. A defendant, by contrast, might defaultor exert only minimal opposition due to the inconvenience of the forum

114. Fed. R. Civ. P. 13(a).115. N.Y. C.P.A. § 266 (now N.Y. C.P.L.R. § 3019(a)).116. 1 N.Y. Adv. Comm. Rep. 69-70 (1957).117. "The estoppel is mutual if the one taking advantage of the earlier adjudication

would have been bound by it." Bernhard v. Bank of America, 19 Cal. 2d 807, 811, 122 P.2d892, 894 (1942).

118. 275 N.Y. 14, 9 N.E.2d 758 (1937). But see the dissent in Elder v. New York & Pa.

Motor Express, Inc., 284 N.Y. 350, 358, 31 N.E.2d 188, 192 (1940).

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or the smallness of the claim. Therefore, he should not later be visitedby the unanticipated consequences of his meager defense.

Such a restriction has not been a major deterrent to the availability ofcollateral estoppel in a jurisdiction adhering to mutuality. The offensive-defensive distinction was advocated on due process grounds for jurisdic-tions rejecting mutuality, for example California, as evidenced by Bern-hard v. Bank of America."9

As to the restriction upon the offensive use of collateral estoppel, Haver-kill v. International Railway' - and Elder v. New York & PennsylvaniaMotor Express, Inc.Y2 1 expressed the rule that one not a party to the prioradjudication might invoke the plea defensively only, against a formerplaintiff.

As stated earlier, if the parties in two suits involving the same cause ofaction are identical and are adversaries to each other, there is no problemin the assertion, affirmatively or defensively, of res judicata. But wherenew participants appear in a second and different cause of action, thedoctrine of mutuality has been a limitation on those who may assertcollateral estoppel, whereas privity restricts the class against whom theplea may be asserted.

The very narrow use that could be made of collateral estoppel, if themutuality requirement were absolutely enforced, has led to certain well-founded exceptions: the indemnitor-indemnitee, master-servant and prin-cipal-agent relationships, and identity of issues as evidenced in the Israelcase.

122

The first exception is founded on the duty of the indemnitor to makegood the loss suffered by the indemnitee through an adverse judgment.Such indemnity may arise out of contract, statutel" or common law. A

119. 19 Cal. 2d 807, 122 P.2d 892 (1942) ; see Currie, Mutuality of Collateral Estoppel-Limits of the Bernhard Doctrine, 9 Stan. L. Rev. 281 (1957) (discusion of JusticeTraynor's now famous analysis of the difference between the criteria governing the pro-ponent and the opponent of the plea).

120. 217 App. Div. 521, 217 N.Y.S. 522 (4th Dep't 1926), aff'd mer., 244 N.Y. 582,155 N.E. 905 (1927).

121. 284 N.Y. 350, 31 N.E.2d 188 (1940).122. Israel v. Wood Dolson Co., 1 N.Y.2d 116, 134 N.E.2d 97, 151 N.Y.S.2d I (1956).123. An interesting case decided on the grounds of indemnification rather than collateral

estoppel is Liberty Mlut. Ins. Co. v. George Colon & Co., 260 N.Y. 305, 183 N.E. 505 (1932).The original law suit was by the administratrix against Colon for the wrongful death of herhusband. The judgment for the plaintiff established the negligence of the defendant and, inthe absence of contributory negligence, of the decedent. The employer's insurance carrier vasthereupon obligated to pay $1000 into special funds under N.Y. Workmen's Comp. Law§§ 15(8)-(9) providing that an employer or his carrier shall make payments of $50 eachinto specified funds where no persons are entitled to compensation. The statute also pro-vided for an assignment to the carrier of a cause of action for his payments into the funds.

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contractual right of indemnification may obtain even though the indem-nitor and indemnitee are primary and equally culpable tortfeasors withrespect to the public to whom they owe a duty. Their liability is thus jointand several as is their duty. But as between the two, an arrangement mayexist whereby the indemnitor has contracted to pay claims against theindemnitee.' 4

Common law indemnity or implied right of indemnification existswhere different degrees of fault are present. In such cases, the secondarytortfeasor has a claim over against the primary tortfeasor if the formeris held to respond in damages. Collateral estoppel has been available de-fensively to the secondary tortfeasor (indemnitee) where he is sued bythe same party involved in a prior litigation resulting in the exonera-tion of the primary tortfeasor (indemnitor). 12

Thereupon the insurance company sued the same defendant to recover these payments. Theinsurance company pleaded the judgment against defendant obtained by the administratrix asconclusive of the negligence of the defendant.

The appellate division in granting summary judgment for the plaintiff in the second actionrested its decision on the right of the insurance carrier to be ifidemnified by the wrongdoer."It is a familiar doctrine that one who has been compelled to pay a judgment recoveredagainst him because of the wrongful act of a third person has an action over against suchperson; and where such third person has had notice of the former action and an oppor-tunity to defend, the judgment is binding and conclusive upon him." 235 App. Div. 117,121, 256 N.Y.S. 628, 632 (2d Dep't 1932).

The defendant in appealing the decision to the court of appeals argued that the judgmentin the action by the administratrix imposed no liability on the insurance company. Neitherdid the defendant have any notice in the first action that the insurance company wouldmake a claim, a claim which the insurance company did not possess at that time. Thedefendant viewed the appellate division decision as an alarming change in the law: "It willmean that in every accident case, where more than one person is injured, there need be butone trial of the issues by one injured party against the wrongdoer, and that judgment will beres judicata as to all other persons injured in the same accident." Brief for Appellant at 16,Liberty Mut. Ins. Co. v. George Colon & Co., 260 N.Y. 305, 183 N.E. 506 (1932).

The court of appeals affirmed summary judgment for the carrier in the second action onthe grounds of a right of indemnification provided by the statute. The defendant's obligationas indemnitor was settled and could not be relitigated. The dissent was disturbed by thefact that the plaintiff in the second action, the insurance carrier, was not vouched in In thedeath action. "[Tihe judgment in the death action has never established the defendant'sliability in this action as defendant has never had a chance to defend himself against thestatutory cause of action." 260 N.Y. 305, 314, 183 N.E. 506, 509 (1932).

124. See Hawley v. Davenport, R.I. & N.W. Ry., 242 Iowa 17, 45 N.W.2d 513 (1951).125. The absentee owner of a vehicle against whom a judgment is rendered based on

liability arising from statutes such as § 388 of the Veh. & Traf. Law has a right of indemnityagainst the driver of his vehicle. However, since the owner's automobile liability insurancecovers permitted drivers, the insurance company would in effect be "paying itself." If theoperator has liability insurance there may be some question of adjustment between the twoinsurance companies although presumably the owner's insurer would be the primary If notsole source of payment. If the judgment against the owner exceeds the coverage of hispolicy, he has a clear right of indemnification against the driver for the excess.

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The derivative liability exception, encompassing master-servant andprincipal-agent relationships, operates where one is subject to liability forthe culpable act of another. Thus, the master who is not at fault himselfis answerable for the negligent act of his servant committed within thescope of the employment. Generally speaking, both or neither are liable.The Restatement position' has been that the master may take advantageonly of a prior exoneration of his servant and the servant may not availhimself of a judgment for his master. 7

The basic formula for this type of case is a first action by one alleginginjuries against another's servant. The servant wins. The defeated plaintiffthen sues the master, whose liability is dependent on the culpability ofthe servant. The master may assert the servant's judgment as a defense . 2

2

These exceptions are not new. Judge Van Devanter writing in 1907reviewed the venerable history of the derivative liability exception tomutuality:

One of the earliest cases in which the question arose is Ferrers v. Arden, 2 Cro. Eliz.668, which was trespass on the case for the conversion of an ox. The defendant pleadedthat in a prior action for the same trespass, prosecuted by the same plaintiffs againstother defendants, the latter had justified in his right and were acquitted, and it washeld that, if the second action was for the same cause, the defendant's plea was good;for "although he be a stranger to the record, whereby the plaintiffs were barred, yethe is privy to the trespass, wherefore he well may plead it, and take advantage of it."In another relation, the same question arose in Biggs v. Benger, 2 Ld. Raymond, 1372,an action of trespass against two defendants. One made default, and the other pleadedthat the act charged was done by him in the right of his codefendant and under thelicense of the plaintiff. The latter took issue on the plea, which was found against him,and it was held that the defendant who made default was entitled, on motion in arrest,to the benefit of the plea because it showed that the plaintiff could have no cause ofaction against him. . . .A leading case in this country is Emery v. Fowler, 39 Ate.326, 63 Am. Dec. 627, which was trespass quare clausum against one who had actedunder the direction of his father. In a prior action by the plaintiff against the fatherfor the same act the father, who admitted that the son acted under his direction, hadbeen acquitted, and it was held that the son was entitled to the benefit of thatadjudication. We quote from the opinion: "To permit a person to commence anaction against the principal and to prove the acts alleged to be trespasses, to have

126. Restatement of Judgments § 96 (1942). The Elder case is in accord with thisposition. Some cases have permitted the primary actor to take advantage of a judgment forthe derivatively liable party. See, e.g., Wolf v. Kenyon, 242 App. Div. 116, 273 N.Y.S. 170(3d Dep't 1934); Bishop v. Downs, 18 App. Div. 2d 1127, 239 N.Y.S.2d 529 (4th Dep't1963) (mem.); Planty v. Potter-DeWitt Corp., 27 App. Div. 2d 401, 279 N.Y.S.2d 938(3d Dep't 1967). See generally Moore & Currier, Mutuality and Conclusiveness of Judg-ments, 35 Tul. L. Rev. 301 (1961).

127. Applying the analogy to the owner and driver in a motor vehicle accident case, theabsentee owner has been permitted to assert defensively against a former party the judg-ment for his driver. Good Health Dairy Prods. Corp. v. Emery, 275 N.Y. 14, 9 N.E2d758 (1937); Byrne v. Hasher, 275 N.Y. 474, 11 N.E.2d 304 (1937) (mem.).

128. Restatement of Judgments § 96 (1942).

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been committed by his servant acting by his order, and to fail upon the merits torecover, and subsequently to commence an action against that servant and to proveand rely upon the same acts as a trespass, is to allow him to have two trials for thesame cause of action, to be proved by the same testimony. In such cases the technicalrule that a judgment can only be admitted between the parties to the record or theirprivies expands so far as to admit it, when the same question has been decided andjudgment rendered between parties responsible for the acts of others.' u2 9

The third exception to mutuality is based on an identity of issues. Theformer adjudication speaks conclusively upon the very issue raised in thesecond action. Such identity of issues is a prerequisite to collateral estop-pel and it seems, therefore, inaccurate to categorize it as an exception.What is exceptional, however, is the reliance upon identity of issues alonewithout the additional presence of privity, indemnity or derivative liabil-ity. This special type of case will be discussed later.13 Here, attention isfocused on decisions based on a conjunction of identity of issues andderivative liability and the contrapuntal effect of the shield-sword doctrine.

Haverhill v. International Railway'' reigned virtually unchallenged asthe controlling decision in New York for many years. D1 sued 02182 forpersonal injuries and won. Thereupon 01 sued 02 for property damageand obtained a directed verdict on the grounds that the negligence of thedefendant and the freedom of negligence of D1 had been adjudicated. Theappellate division reversed.'33 Since no privity existed between 01 andD1, there was no mutuality; furthermore, the plea could not be assertedaffirmatively against a former defendant. Had the first judgment goneagainst the driver, 02 could not have employed his victory offensively ina suit against 01. The latter did not control the first action; he did nothave his day in court.

Thus, one who could not be disadvantaged by another's adverse judg-ment might not as a plaintiff seek the benefit of another's favorablejudgment against a former defendant. In a derivative case, the mutuality

129. Portland Gold Mining Co. v. Stratton's Independence, Ltd., 158 F. 63, 66 (8th Cir.1907).

130. See text accompanying note 150 infra.131. 217 App. Div. 521, 217 N.Y.S. 522 (4th Dep't 1926), aff'd mer., 244 N.Y. 582, 155

N.E. 905 (1927).132. In the diagrammatic representations employed all parties owning, driving, occupying

as passengers or insuring the first car will be represented by the postscript "i"; thoseassociated with the second car will bear the postscript "2," etc. The alphabetical designationswill be "0" for owner, "D" for driver, "P" for passenger and "Ir" for insurer. The symbol

"J/" represents "judgment for." The Roman numerals "I" and "II" will indicate the firstaction and the second action respectively. Thus:

I. 01 v. 02 - J/01means that in the first action the owner of the first car sued the owner of the second carand judgment was rendered for the former.

133. 217 App. Div. 521, 217 N.Y.S. 522 (4th Dep't 1926).

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rule could be relaxed only where the directly liable party was exoneratedin a first action and the same plaintiff next sued the derivatively liableparty. As a defendant in the second action, the derivatively liable partywas permitted to employ collateral estoppel as a shield to protect himselffrom liability without the right of indemnity.

Good Health Dairy Products Corp. v. Emery' 4 did not overturn theHaverhill rule but introduced one modification. In Good Health, the issueswere the negligence and contributory negligence of both drivers. D1 sued02 and D2 and recovered judgment. 3 5 02 and D2 then sued 01 (absenteeowner) and D 1.136 D1 could avail himself of collateral estoppel since hewas a party to the first action. 01, the court of appeals held, could benefitby the former judgment even though she was not a party or privy to thatjudgment since her liability, if any, was derived solely from the acts ofher driver and he had been adjudicated free of fault. Note that in thiscase defensive use is made of collateral estoppel against former defendantsand that the judgment relied on exonerated the primary actor.

In Elder v. New York & Pennsylvania Motor Exprcss'I3 the issue waswhether Elder, driver of the truck owned by the United States TruckingCorporation, could avail himself as plaintiff of a judgment for his em-ployer arising out of a consolidated action in which each owner hadclaimed against the other. The appellate division relying on Good Health,permitted the plea, 3' finding that the same defendant had had fullopportunity to litigate the determinative issues of negligence and con-tributory negligence adjudicated at the trial. The appellate division'sreasoning was as follows:

The basis of the holding in the Good Health case was that the one against whomthe rule was sought to be enforced had had his day in court on the same issues andshould not be permitted to relitigate them. There appears to us to be no good reasonfor applying the rule in favor of the person represented (Mrs. Emery in the GoodHealth case) whose liability was derivative, and refusing to apply it in favor of thedriver (plaintiff in this case) whose negligence or freedom from negligence . . . solelydetermined his employer's liability.' 3 9

The court of appeals reversed.4 0 While recognizing the Good Healthdecision as a means of avoiding inconsistency in or destruction of theright of indemnification between an exonerated driver and a liable owner,

134. 275 N.Y. 14, 9 N.E2d 758 (1937).135. See Appendix, p. 48 infra.136. The counterclaim of 01 against 02 and D2 for property damage is omitted for the

sake of simplicity.137. 284 N.Y. 350, 31 N.E.2d 188 (1940).138. 259 App. Div. 380, 19 N.Y.S.2d 553 (Ist Dep't 1940).139. Id. at 383, 19 N.Y.S.2d at 556.140. 284 N.Y. 350, 31 N.E.2d 188 (1940).

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the court combined the Good Health facts (driver exonerated first) andthe Haverhill rule (defensive use only against a former plaintiff) anddenied the plea of collateral estoppel.

Two examples of a combination of privity and identity of issues as abasis for departure from strict mutuality are Bernhard v. Bank of Amer-ica141 and United Mutual Fire Insurance Co. v. Saeli.142 In Bernhard thedefendant seeking to take advantage of the prior judgment was not aparty to the first action, and the plaintiff sued in what appeared to be adifferent capacity in the former proceeding from her role in the subsequentaction. The court ruled that collateral estoppel could be asserted againstthe plaintiff since, as beneficiary in the first action and administratrix inthe second, she was in reality the same party in both. Identity of issuesbeing present, the use of collateral estoppel by a defendant who wouldnot have been bound to his disadvantage by a former judgment waspermissible so long as the one estopped was a party or privy to the prioradjudication.

In the second case, Saeli (D2) sued Olney and Carpenter Corporation(01) and Carpenter (D1) for personal injury and property damagearising out of a collision. D1 then instituted suit against D2 for personalinjuries. The two actions were ordered tried together. Each driver allegedhis freedom from contributory negligence and the other's negligence.

The jury brought in a verdict of no cause of action in the claim of D2;judgment was entered in favor of 01 and D1. In Dl's claim against D2,the judgment was for D1. The insurer of 01 had paid for the damage tothe car under a fifty dollar deductible policy, and was subrogated to 01'sclaim against D2. The third litigation therefore was the insurer's andowner's action for property damage. Special term granted, and the fourthdepartment affirmed.. judgment on the pleadings in favor of the plaintiffs.The entire case may be depicted as follows:

I. D2 v. O1, D1 - J/01, D1II. D1 v. D2 - J/D1

III. Irl, 01 v. D2 - Irl and 01 may useJ/01, D1 and J/D1.

Had only I been tried without II, the verdict in favor of 01 and Dlmight have been predicated on the negligence of both drivers, Carpenterand Saeli. "However, tried before the same judge, and with the same jury,was Carpenter's action, in which he sought a recovery for personal injuries

141. 19 Cal. 2d 807, 122 P.2d 892 (1942).142. 272 App. Div. 951, 71 N.Y.S.2d 696 (4th Dep't 1947), aff'd mem., 297 N.Y. 611, 75

N.E.2d 626 (1947).143. 272 App. Div. 951, 71 N.Y.S.2d 696 (4th Dep't 1947).

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from Saeli growing out of this same collision. The jury's verdict in Car-penter's favor necessarily determined that Saeli was the sole one at faultfor the collision. Since all three were parties to this single trial, took partin it, and since the same evidence furnished the basis for the jury's find-ings in each action, it seems almost sophistry to say that . . . it wasnot. .. forever determined, . . . that the one solely to blame . . . wasSaeli.'

Several aspects of this decision are worthy of note. Offensive use ofcollateral estoppel was permitted against a former plaintiff-defendant; oneof the parties invoking it was not a party to the first action. How mightthe insurer be classified?145 Does the court treat him as a privy'40 althoughnot in privity? 147

The status of the plaintiff had importance since New York law in 1947did not recognize as an exception to mutuality non-party, offensive use ofcollateral estoppel. No problem existed as to the status of the personagainst whom the plea was raised since he was a plaintiff in I and adefendant in II and III, that is, unless one relies more on the reservationsexpressed in Elder than the holding of Good Health. If there is privity,24 8there is nothing extraordinary about Saeli; if privity is lacking, Saeliresembles BR. DeWitt, Inc. v. Hall'1 but without the aid of derivativeliability.

The last major case to be considered in the development of exceptionsto mutuality antedating DeWitt 50 is Israel v. Wood Dolson Co.15' Unlikethe others, it is not a negligence case arising out of a motor vehicleaccident.

Plaintiff, a real estate broker, sued another real estate broker for one-half of a commission received by the latter upon the sale of property toone Gross. Plaintiff alleged a first cause of action against the broker forbreach of a written agreement to share the commission if the realty inquestion were sold to a buyer introduced by plaintiff. A second cause of

144. Id. at 952, 71 N.Y.S.2d at 697.145. Id. at 952, 71 N.Y.S.2d at 698.146. J. Weinstein, H. Korn & A. Miller, supra note 98, at ff 5011A0, n.250.147. F. James, Civil Procedure, 594 (1965).148. The insurer (Irl) in the Brief for PLlaintiffs-Respondents at 8 describes the relation-

ship between it and Olney & Carpenter (01), in terms of a subrogee or assignee whoserights were dependent on its subrogor or assignor. As subrogee, it had no individual orpersonal rights against D2 but only the rights of its subrogor. The subrogee would havehad no standing in court in the first action since no cause of action had accrued prior to itspayment to the subrogee under the collision policy.

149. 19 N.Y.2d 141, 225 N.E.2d 195, 278 N.Y.S.2d 596 (1967).150. Id.151. 1 N.Y.2d 116, 134 N.E.2d 97, 151 N.YS.2d 1 (1956).

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action was directed against the purchaser for intentionally inducing thesecond broker to breach his contract with the plaintiff. The two causes ofaction were severed and the claim against the second broker was triedfirst. A jury verdict in that case was set aside and the complaint dismissedon the ground that the plaintiff had not introduced the purchaser to thetransaction and that the second broker consequently had not violatedthe contract.

Plaintiff then proceeded with his action against the purchaser; the latterpleaded as an affirmative defense the conclusiveness of the judgment inthe first case. Special term denied his motion for summary judgment onthe grounds that defendant Gross, not having been a party or privy tothe first case could not claim the benefit of that judgment as an estoppel.The appellate division's reversal was affirmed by the court of appeals.The decision rested on the identity of issues in the two causes of action.To prove the second cause, plaintiff would have had to show a valid con-tract between him and the other broker, the purchaser's knowledge of thecontract, a breach, and the purchaser's intentional inducement of thesecond broker to breach the contract. Since plaintiff failed to prove abreach in the first suit, he was barred from relitigating that issue.

The appellate division relied on the reasoning developed in the Restate-ment of Judgments, section 99, to the effect that a prior judgment "infavor of a person charged with the commission of a tort or a breach ofcontract bars a subsequent action" by the same plaintiff against anotherdefendant whose liability is based upon inducing the identical tort orbreach of contract. Israel represents a defensive use of collateral estoppelagainst a former plaintiff without, however, the additional presence ofprivity or derivative liability or indemnity. 2

The first department in Quatroche v. Consolidated Edison Co.' con-fined Israel to a defensive use of collateral estoppel. Plaintiff, a passenger,pleaded affirmatively a former judgment for the owner and operator ofher vehicle against the same defendant.' 54 Since the passenger was not aparty in the former adjudication, that judgment "neither precludes theplaintiff nor establishes the defendant's liability in this action."1 5 But inKinney v. State,56 the passengers in the second car employed offensively

152. A case similar to Israel is American Button Co. v. Warsaw Button Co., 31 N.Y.S.2d395 (Sup. Ct. 1941), aff'd mem., 265 App. Div. 905, 38 N.Y.S.2d 570 (4th Dep't 1942). SeeEissing Chem. Co. v. People's Nat'l Bank, 205 App. Div. 89, 199 N.Y.S. 342 (2d Dep't),aff'd mem., 237 N.Y. 532, 143 N.E. 731 (1923).

153. 11 App. Div. 2d 665, 201 N.Y.S.2d 520 (1st Dep't 1960).154. See Appendix, p. 50 infra.155. 11 App. Div. 2d at 665, 201 N.Y.S.2d at 521.156. 191 Misc. 128, 75 N.Y.S.2d 784 (Ct. Cl. 1947).

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a prior judgment for the passengers of the first car based on the samenegligent act of the state.

B.R. DeWitt, Inc. v. Hall,' holds that a derivatively liable absenteeowner of a motor vehicle may plead affirmatively a former judgmentexonerating his driver. The case may be diagrammed as follows:

I. DI v. 02 - J/D1II. 01 v. 02 - O1 may use J/D1

In the first action, DeWitt's (01's) driver sued for personal injuriesand won. In the second case special term granted 01's motion to strike thefirst affirmative defense.. and for summary judgment on the ground thatthe applicability of collateral estoppel does not rest upon the fact thata party has not tried an issue against a particular adversary. Rather, thecontrolling factor is identity of issues.16 9

The appellate division reversed, believing itself bound by the ElderC"and Minkof'6' decisions, and limiting the authority of IsraelV62 to defen-sive collateral estoppel in the context of identity of issues. The dissent ofJustice Goldman,'63 however, distinguished the factual situation in Minkoflwhich involved a subsequent suit between former co-defendants. In theinstant case, 02 was an adversary in Dl's personal injury action with"full opportunity" to contest the issues of negligence and contributorynegligence. His liability for property damage depended directly on thesame issue. The "absolute" identity of issues'6 4 and the defendant's adver-sarial participation in Dl's action combined to give him his day in courL'65

The court of appeals in reversing the appellate division announced thatmutuality is dead, and overruled "at least Haverhill!"' Reviewing the

157. 19 N.Y.2d 141, 225 N.E.2d 195, 278 N.YS.2d 596 (1967), rev'g mem. 24 App. Div.2d 831, 264 N.Y.S.2d 68 (4th Dep't 1965).

158. Defendant alleged that 01 had received payment from his insurer under a collisionpolicy and that the cause of action was thereby assigned to the insurer and 01 was not thereal party in interest.

159. The court cited: Israel v. Wood Dolson Co., 1 N.Y.2d 116, 134 N.E2d 97, 1SN.Y.S.2d 1 (1956); United Mut. Fire Ins. Co. v. Saeli, 297 N.Y. 611, 75 N.E2d 625(1947) (mem.); Good Health Dairy Prods. Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758(1937).

160. 284 N.Y. 350, 31 N.E.2d 188 (1940).161. 10 N.Y.2d 1030, 180 N.E.2d 434, 225 N.Y.S.2d 47 (1962).162. 1 N.Y.2d 116, 134 N.E.2d 97, 151 N.Y.S.2d 1 (1956).163. 24 App. Div. 2d 831, 832, 264 N.Y.S.2d 68, 69 (4th Dep't 1965) (mem.).164. 02 contended in his brief that different issues might arise in the property damage

action, e.g., a mechanical defect known to 01 but not to DI, Brief of Defendant-Respondentat 4, B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 225 N.E.2d 195, 278 N.Y.S2d 596 (1967).

165. This criterion is ably developed in Brief for Appellant, B.R. DeWitt, Inc. v. Hall,19 N.Y.2d 141, 225 N.E.2d 195, 278 N.Y.S.2d 596 (1967).

166. 19 N.Y.2d 141, 147, 225 N.E.2d 195, 198, 278 N.YS.2d 596, 601 (1967).

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trend of recent decisions," 7 Judge Scileppi focused on two considerations:identity of issues and full opportunity to litigate them in the prior actionby the party against whom the estoppel was sought to be asserted.

In this case, where the issues, as framed by the pleadings, were no broader and nodifferent than those raised in the first lawsuit; where the defendant here offers noreason for not holding him to the determination in the first action; where it isunquestioned (and probably unquestionable) that the first action was defended withfull vigor and opportunity to be heard; and where the plaintiff in the present action,the owner of the vehicle, derives his right to recovery from the plaintiff in the firstaction, the operator of said vehicle, although they do not technically stand in therelationship of privity, there is no reason either in policy or precedent to hold thatthe judgment in the Farnumr case is not conclusive in the present action .... 108

Some of the questions not answered by DeWitt are: may a primaryactor (driver, servant) affirmatively appropriate a judgment for a deriva-tively liable party (owner, master) against the same defendant? May adriver or owner offensively assert a judgment for a passenger or a pas-senger the judgment for a driver, owner or other passengers? May abystander affirmatively or defensively use a judgment for an owner, driveror passenger? Where do Israel and DeWitt lead when there is no privity,no derivative liability but solely identity of issues and a litigational "priv-ity" between the judgment winner and a new party seeking to benefitfrom that judgment?

Passengers

Passengers heretofore have been a class, sui generis, not invited topartake at the communal table where judgments are shared. The caseexpressing the New York view that a driver may not appropriate a judg-ment for his passenger to estop a subsequent claim against him is Daly v.Terpening.69 Terpening (DI) sued Daly (D2) for his own personalinjuries and property damage. He sued D2 also an administrator for theestate of his wife, a passenger (P1). The actions were tried together andresulted in a final judgment for P1 in the second action and a final judg-ment for D2 in the first action. D2 then brought a suit for her personalinjuries and property damage against DI; the latter interposed the de-

167. As a foundation for its holding the court cited: Cummings v. Dresher, 18 N.Y.2d 105,218 N.E.2d 688, 271 N.Y.S.2d 976 (1966); Hinchey v. Sellers, 7 N.Y.2d 287, 165 N.E.2d156, 197 N.Y.S.2d 129 (1959); Israel v. Wood Dolson Co., 1 N.Y.2d 116, 134 N.E.2d 97, 151N.Y.S.2d 1 (1956); United Mut. Fire Ins. Co. v. Saeli, 297 N.Y. 611, 75 N.E.2d 625(1947) (mem.); Good Health Dairy Prods. Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758(1937).

168. 19 N.Y.2d at 148, 225 N.E.2d at 199, 278 N.Y.S.2d at 601-02.169. 261 App. Div. 423, 26 N.Y.S.2d 160 (4th Dep't), aff'd mem., 287 N.Y. 611, 39

N.E.2d 260 (1941).

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fense of "res judicata." The plea was denied. The case may be representedthus:

I. D1 v. D2 - J/D2II. P1 (by DI) v. D2 - J/PI

III. D2 v. D1 - D1 may not use J/P1

The court reasoned as follows:The positions of the driver and the passenger in the automobile are different and quiteoften the passenger and driver differ not only in knowledge of the operation of thecar [but] . . . in appreciation of the conduct of other drivers in their then traffic ....Mrs. Daly may have given some signal . .. that would have advised the driver ofthe other car of the manner in which she intended to operate her car, and insofar asthat driver is concerned the conduct of Mrs. Daly would not necessarily be negli-gence ... and yet such conduct or action unknown or unappreciated by the passengerwould result in a situation in which the operation of the car by Mrs. Daly would becausative negligence insofar as the passenger. . . was concerned.'1 0

The court observed that there was no mutuality of estoppel. The partiesin II and III were not the same; in the third action, D1 appeared in hisindividual capacity, while in the second action he was acting as adminis-trator of his wife's estate. And of course, no privity existed between D1(husband) and P1 (wife).

In an earlier case 71 the driver did not attempt to use his passenger'sjudgment but rather his own prior judgment obtained against the ownerof the other vehicle. The case can be represented in this way:

I. 01 v. 02 - J/0D1II. P2 v. ODI, 02 - OD1 may not use J/OD1

Although in I the owner-driver proved that the accident was causedsolely by the negligence of 02's driver, P2 was free to prove in the secondcase that OD1 was negligent as to her.Y7 Thus, the passenger was notprecluded from suing the formerly exonerated driver as well as the cul-pable bus owner, 02. The freedom from negligence of the first drivervis-a-vis the second driver did not establish the former's freedom fromnegligence vis-h-vis the passenger of the second driver.173

170. 261 App. Div. 423, 426-27, 26 N.YS.2d 160, 163-64 (4th Dep't 1941).171. Neenan v. Woodside Astoria Transp. Co., 261 N.Y. 159, 184 N.E. 744 (1933).172. Id. at 164, 184 N.E. at 746.173. Sullivan v. Gist, 159 F. Supp. 928 (E.D. Pa. 1958) involved passengers in both cars,

as well as drivers and owner. Diagrammed it reads:I. D1 v. D2-J/D1,

II. P1 v. 01, D2 - J/P1 against D2 onlyIL P2 v. D2

D2 impleaded 01 - 01 may use J/D1

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Whether as a projection of Cummings v. Dresher1 74 the passengers anddriver of one vehicle will be permitted greater freedom in sharing eachother's judgments is conjecturalY.7 5 Perhaps the burden will be placed onthe party opposing collateral estoppel to prove that he exercised differentdegrees of care as to his counterpart driver and that driver's passenger.Whether the passenger or driver of the first car may offensively or de-fensively use a prior judgment against a passenger or driver of the secondcar is even more complex and speculative. Even assuming that Daly hasbeen overruled sub silentio by Cummings, the courts may not be willingto go that far.

A second type of situation involving the borrowing of a judgment byone not in privity and not in a derivative relationship to a participant inthe former adjudication is the multiple passenger case."' New York hasthus far not permitted a passenger to assert a former judgment for afellow passenger against the same defendant. 77

However, a recent case of considerable magnitude, United States v.United Air Lines, Inc.' may portend a modification of New York law.The litigation arose out of a collision of a United Air Lines plane with amilitary jet in Nevada killing all passengers and crew members. Suits werefiled in eleven jurisdictions in the United States. Twenty-four suits bysurvivors-heirs were filed in the Southern District of California, seven inNevada and one in the Eastern District of Washington. All of the casesfiled in the Southern District of California were consolidated for trial. Ajury verdict was rendered for the plaintiffs on the issue of negligence. Theplaintiffs in Nevada and Washington first moved for a transfer to theSouthern District of California, and subsequently for summary judgmenton the issue of liability. Thus, the plaintiffs who were not parties or privies

174. 18 N.Y.2d 105, 218 N.E.2d 688, 271 N.Y.S.2d 976 (1966).175. See discussion p. 37 infra.176. See 35 Yale L.J. 607, 612 (1926).177. Bisnoff v. Herrmann, 260 App. Div. 663, 23 N.Y.S.2d 719 (2d Dep't. 1940). The

court took the occasion to state the law respecting derivative liability and mutuality as of1940: "Where, as here, there is no privity or relationship approximating privity, a judgmentcannot be res judicata, even as a defense, in favor of one who was not a party and whowould have not been bound had the judgment been adverse." Id. at 666, 23 N.Y.S.2d at 722.

178. 216 F. Supp. 709 (D. Nev. 1962), modified, 335 F.2d 379 (9th Cir.), cert. dismissed,379 U.S. 951 (1964). See also Zdanok v. Glidden Co., 327 F.2d 944 (2d Cir.), cert. denied,377 U.S. 934 (1964). The court's construction of a labor contract and defendant'sliability under it inured to the benefit of the second group of plaintiff-employees (notparties to the first action) against the same defendant. The Zdanok (first) suit involved5 employees suing for seniority rights; the Alexander (second) suit (pending in state court)involved 160 employees. After defendant's liability was established on the first Zdanokappeal and the case remanded to the district court for assessment of damages, the Alexanderstate action was dropped, re-instituted in federal district court and consolidated withZdanok.

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in the California case sought to assert that judgment affirmatively againstthe same defendant. Obviously mutuality was lacking. The court adoptedthe test of Bernhard v. Bank of America:Th Was the issue identical? Wasthere a final judgment on the merits? Was the prior judgment assertedagainst a party or privy to that judgment? The court answered all threequestions in the affirmative.'

The court considered the following additional aspects of the case. TheCalifornia litigation'' involved the major part of the total liability ofUnited Air Lines to survivors of the passengers, the judgments in thatcase amounting to over two million dollars. Thus, defendant was alertedto the full potentialities of the controversy and had every incentive toprepare and try the case with the utmost skill.

The court described the thoroughness of the proceedings:

a) Depositions were taken throughout the country.b) Many hundreds of interrogatories were submitted by the parties

to each other.c) Pre-trial proceedings consumed eight days terminating in an order

19 pages in length.d) Of the 69 trial days, but three were devoted to the plaintiff's direct

case.e) Summations to the jury occupied four days.f) Instructions to the jury were argued for seven days. 82

The court concluded that the defendant was collaterally estopped byvirtue of the judgments in the California cases to deny the liability toplaintiffs in this case.' Since the defendant had "participated in a full,fair adversary proceeding and has had a full opportunity to present itscase and has fully presented its case in the Wiener trial on liability,"the doctrine of mutuality of estoppel did not apply.8 4

It may be argued that the United Air Lines decision should be limitedto catastrophic cases of this kind' where the instantaneous deaths of allpassengers could scarcely permit a measuring of different degrees of faultto each. The court was impressed by the completeness and the fairness ofthe opportunity of the defendant to interpose every possible fact or

179. 19 Cal. 2d 807, 122 P.2d 892 (1942).180. 216 F. Supp. at 727-32.181. United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir. 1964), aff'g 237 F. Supp. 90

(S.D. Cal. 1964).182. 216 F. Supp. at 730-31.183. Id. at 731.184. United States v. United Air Lines, Inc., 216 F. Supp. 709, 731.185. But see Berner v. British Commonwealth Pac. Airlines, Ltd., 346 F.2d 532 (2d Cir.

1965), cert. denied, 382 U.S. 983 (1966).

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inference in its favor. Thus the determination did not rest on any super-ficial application of the Bernhard formula. But in applying the criteriawhich have supplanted mutuality the court emphasized the due processrequirement of a full day in court.

Issues

The discussion thus far has utilized the term "identity of issues" with-out refinement of analysis. The recent cases examined in the text illustratethe increasingly important role assigned to the identity factor, as restric-tions embodied in mutuality have been relaxed and abandoned. The stan-dard formulation of the rule is that issues must be (a) identical, (b) actu-ally litigated and (c) necessarily determined. Possibly the most difficultaspect is the first, since this must be concerned, more fundamentally thanthe others, with the question: What is an issue? Is it an ultimate fact ormay it, in some cases, constitute evidentiary findings of ultimate signifi-cance? Hinchey v. Sellers'8" reviewed subsequently focuses on identityof issues.

That preclusionary effect attaches only to questions adversarially con-tested is an incident of collateral estoppel, 87 dictated by the potentialitiesof abuse inherent in the doctrine. The effect of a failure to deny anallegation of the complaint or of an express admission of some or all allega-tions in the pleadings has been generally confined to the particular case.' 8

It is not so clear whether an issue is actually litigated if it is put in issueby the pleadings and later admitted, or a stipulation is entered into by theparties so that no proof is submitted on that fact. In determining what isactually litigated, reference will often be necessary to the record of theprior case and perhaps even to matters outside the record.

A judgment based upon the consent of the parties rather than a trialof the facts produces no actually litigated issues. Yet in New York, sucha judgment is generally given res judicata and collateral estoppel effect.189

The same conclusion, that no issues have been litigated, is obviouslyapplicable to judgments by default. It is logical to accord such judgments

186. 7 N.Y.2d 287, 165 N.E.2d 156, 197 N.Y.S.2d 129 (1959).187. See Southern Pac. R.R. v. United States, 168 U.S. 1, 48-49, 52-53 (1897); Cromwell

v. County of Sac, 94 U.S. 351, 353 (1876) ; Schuylkill Fuel Corp. v. B. & C. Nieberg RealtyCorp., 250 N.Y. 304, 306-07, 165 N.E. 456, 457 (1929); Restatement of Judgments § 68,comments a, c, d (1942); 2 Freeman § 677 (5th ed. 1925); Note, Collateral Estoppel byJudgment, 52 Colum. L. Rev. 647 (1952).

188. See N.Y. C.P.L.R. § 3123(b); Restatement of Judgments § 68, comments f, g (1942).189. 5 J. Weinstein, H. Korn & A. Miller, New York Civil Practice at 11 5011.31. But see

General Analine & Film Corp. v. Bayer Co., 305 N.Y. 479, 113 N.E.2d 844 (1953). A decisionrendered but not entered (the parties having settled in the interim) was hold to be notres judicata. Mandracchia v. Russo, 53 Misc. 2d 1018, 280 N.Y.S.2d 429 (Sup. Ct. 1967).

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bar and merger effect. To permit a default judgment potentially morepervasive sequelae through issue binding, however, is a more serious dueprocess problem than some of the others which have engaged the attentionof the courts in this area. All that the defendant may be admitting by hisdefault is that he would rather pay a small claim, or seek to elude theenforcement of a claim, than submit to a trial.

The criterion of actual litigation has become entangled in the confusionsurrounding identical causes of action. While in many cases, such as themultiple stages of a marital dispute or a complex will or contract, it maybe an intricate matter to determine what facts were actually litigated,this is not the case in the usual motor vehicle accident in which theultimate facts are negligence, contributory negligence, permission andproximate cause." There is, therefore, less mystery concerning what isactually litigated in the typical accident case, and the actually litigatedrule ought to be sensibly applied without hypertechnicalities. The actuallitigation requirement has not been strictly adhered to in New York. 1'

The criterion that an issue must have been necessarily determined inthe first action to possess potentially binding effect in the second actionmay cause more difficulties in accident cases. 1 2 The problem arises wherejudgment is for the defendant upon a general verdict. Matters foundagainst the winning party are not matters on which the judgment neces-sarily depends and are, of course, not appealable.193 It is not a particularlyhelpful definition to state that the necessarily determined issue must bea material fact and that an estoppel will not operate as to facts on whichthe judgment did not depend. It is apparent that in many types of casesadherence to the "necessarily determined rule" is essential to preventcutting off rights which the party in the first action had no intention ofputting at stake. The approach expressed in the following passage isespecially germane to accident litigation:But there is a difference between a finding or adjudication which is immaterial andone which is material, though perhaps unnecessary in view of other findings. Themere fact that the court goes further than is absolutely necessary to sustain itsjudgment in determining material issues presented to it does not prevent such issuesfrom becoming res judicata .... All that is necessary is that the point or matterin question, if a material one, should have been actually considered and determined.'0

190. For a variable approach to what is the same cause of action see W. E. HedgerTransp. Corp. v. Ira S. Bushey & Sons, 92 F. Supp. 112 (E.D.N.Y. 1950), afi'd, 186 F.2d236 (2d Cir. 1951); Statter v. Statter, 2 N.Y2d 688, 143 N.E.2d 10, 153 N.Y.S.2d 13(1957).

191. Note, Collateral Estoppel in New York, 36 N.Y.U.L. Rev. 1158, 1172-76 (1961).192. See pp. 37-42 infra.193. 2 Freeman, supra note 187, at § 697.194. 2 Freeman, supra note 187, at § 698. It is also stated in this passage that "one who

claims a finding was not material to the issues has the burden of sho%%ing it." Id.

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It may be that the law of New York is tending towards acceptance of,for collateral estoppel purposes, either issues actually litigated or issuesnecessarily determined (in the narrow sense) as binding upon a subse-quent cause of action.

Cutting across both the "identity" and "necessarily determined" pre-requisites is the evasive distinction between ultimate and evidentiary fact.Judge Learned Hand in The Evergreens v. Nunan96 is the recent sourcefor the evidentiary-ultimate fact demarcation'96 in the context of the NewYork "rule" that only ultimate facts may have conclusive effect in subse-quent litigation. The opinion defines an ultimate fact as "one of thosefacts, upon whose combined occurrence the law raises the duty, or theright, in question."' 97 "Mediate datum" (evidentiary fact), on the otherhand, it defines as the basis for a rational inference of ultimate fact.

But whether the fact in the first proceeding is ultimate or mediatematters little according to the theory developed in the opinion. Suchproposition to be conclusive in subsequent lawsuits must have been "neces-sary to the result" in the first suit.198 A caveat is issued in applying thisguide. Since it is impossible to anticipate the future significance of facts,it is unduly harsh, according to Judge Hand, to give binding effect toevery fact decided in a prior case between the parties, even though theirdetermination was essential to the decision.' 99

What seems to be of more moment than the classification assigned tothe projected proposition is the category of fact it acts upon in the secondlawsuit. In Judge Hand's view, neither an ultimate nor an evidentiary factin the first case may establish mediate data in the second. 200

Two multi-stage New York cases illustrate the difficulties attendingapplication of the issues requirements in determining owner's liability.20 1

Fox v. Employers' Liability Assurance Corp.202 considered the followingquestion: Is a prior adjudication that the operation of a car was withoutthe owner's permission, as the statute has been construed by the courts,

195. 141 F.2d 927 (2d Cir.), cert. denied, 323 U.S. 720 (1944).196. Earlier references are to "matters in issue" rather than to ultimate fact. The

matters in issue are the essential elments of a cause of action or defense which must bepleaded; they are distinguished from matters which are merely to be proved, or are incontroversy in the evidence. See 36 N.Y.U.L. Rev. 522, 523 (1961).

197. The Evergreens v. Nunan, 141 F.2d 927, 928 (2d Cir. 1944).198. Id.199. Id. at 929.200. In prior litigation, the fair market value of petitioner's fully improved land was

decided. In the instant controversy, the government refused to be guided by that determina-tion in assessing the fair market value of petitioner's partially improved land, 47 B.T.A.815 (1942).

201. For discussion of the issue of permission in single-stage litigation see pp. 4-11 supra.202. 239 App. Div. 671, 268 N.Y.S. 536 (4th Dep't 1934).

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decisive on the issue of permission as defined in the coverage clause of aninsurance policy? Applying the statutory standard0 3 in the first Foxcase,20 the court determined that only the defendant driver could be heldfor injuries to the plaintiffs, since his use of a city car on this occasionwas without permission.

When the execution issued against the defendant was returned unsatis-fied, plaintiffs sued the city's insurance carrier.205 The latter pleaded thefirst judgment as res judicata on the issue of permission. The court didnot permit the plea; it reasoned that absence of statutory consent did notdetermine absence of permission by the terms of the insurance policy-That question involved the intendment of the contracting parties and thescope of the coverage. In other words, the facts did not warrant impositionupon the owner (the city) of statutory liability for its negligent driver;but in a contract action to construe the liability insurance policy, the samefacts might or might not accord with "permission"20 as defined by thecoverage clause. Therefore, all of the facts had to be presented anew ina second trial..2 0 7

The various stages of litigation in Hinchcy v. SellersOs pertain to theliabilities of the driver, owner and insurer of a car which left the roadnear Sennett, New York, resulting in the death of the two passengers. Thecar was owned by Orville Sellers, a resident of Pennsylvania and insuredunder a liability policy issued in Pennsylvania. Sellers had turned the carover to his son, Donald, for use at his station, Sampson Air Force Base.The son had, on previous occasions, taken other service men as passengersin his car and loaned his car to others to drive.

On this particular occasion, one of the prospective passengers had re-quested the use of the car to drive to the State Fair at Syracuse. Donaldrefused upon learning that one O'Rourke was to accompany them.2 9 The

203. N.Y. Veh. & Traf. Law § 59 (now N.Y. Veh. & Traf. Law § 388).204. Fox v. City of Syracuse, 231 App. Div. 273, 247 N.Y.S. 429 (4th Dep't 1931), afi'd,

258 N.Y. 550, 180 N.E. 328 (1931).

205. 239 App. Div. 671, 268 N.YS. 536 (4th Dep't 1934).206. Id. at 672-74, 268 N.Y.S. at 538-40.207. At the second trial, based on essentially the same facts adduced at the first trial, the

court held the insurer was not liable for payment to the plaintiffs on account of the driver'snegligence, since the latter's use was not permitted within the terms of the insurance con-tract. 239 App. Div. 671, 268 N.Y.S. 536 (4th Dep't 1934).

208. Hinchey v. Sellers, 1 M,isc. 2d 711, 147 N.YS.2d 893 (Sup. CL 1955), rev'd, 5App. Div. 2d 440, 172 N.Y.S.2d 47 (4th Dep't), reargument denied, 6 App. Div. 2d 757,174 N.YS.2d 455 (4th Dep't 1958), rev'd, 7 N.Y.2d 287, 165 N.E2d 156, 197 N.Y.S.2d 129(1959).

209. The refusal was not based on O'Rourke's incompetence as a driver; Donald testifiedto the contrary. Proceedings in New Hampshire, Record at 89. Rather, he refused because

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passenger thereupon assured Donald that O'Rourke would not make thetrip and, owing to this assurance, Donald transferred the car keys to thepassenger. O'Rourke not only joined the excursion but was at the wheelwhen the fatal accident occurred.

The administrators of the two passengers instituted negligence actionsagainst O'Rourke in New Hampshire, the state of his residence; the in-surer refused to defend on the ground that the car was being used withoutpermission of the owner. The administrators then petitioned the NewHampshire court for a declaratory judgment to establish that the car wasdriven with the owner's permission and that the insurer was liable underthe policy issued to the owner. The issues were heard by the court with-out a jury. The superior court made a detailed statement of findings in-cluding these crucial facts: Donald gave permission on condition thatO'Rourke would not be a passenger; Donald did not have knowledge ofthe violation of the condition until informed of the accident.

The superior court transferred the case to the Supreme Court of NewHampshire certifying four questions of law: (1) Was the coverage of theliability insurance to be determined by New York or Pennsylvania Law?(2) Was the use of the car with permission of the insured? (3) Was thedefendant insurer obligated to cover the driver under the policy? (4) Wasthe insurer obligated to pay claims or defend actions resulting from theaccident?...

The supreme court held that Pennsylvania law governed the interpreta-tion of the terms of the policy, which limited coverage to the named in-sured and "to any person while using the automobile . . . provided theactual use. .. is by the named insured or with his permission." '

In view of the superior court's findings that permission was conditionedon O'Rourke's absence, the car at the time of the accident was "neitheractually nor impliedly [used] within the limits of the permission grantedby Sellers ... . ,1212 The use was non-permissive within the meaning of theterms of the liability policy. Therefore, the insurer was not obligated toprovide coverage to the driver or to pay claims arising from the accident.The superior court entered a decree in conformance with the supremecourt's rulings.

The administrators voluntarily discontinued the tort actions in New

O'Rourke was limited to the base as a result of an infraction of rules, and Donald fearedhe might be court-martialed if he assisted O'Rourke in voliating the restriction. Id. at 105.

210. Hinchey v. National Sur. Co., 99 N.H. 373, 376, 111 A.2d 827, 830 (1955).211. Since the father had transferred the car to Donald under a "broad authority,"

"anyone driving with Donald's permission was also driving with the permission of the .

named insured." Id. at 377, 111 A.2d at 830.212. Id at 379, 111 A.2d at 831. The court distinguished the factual situation from

Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389 (1932).

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Hampshire against O'Rourke, and instituted suit against Orville andDonald Sellers in the Supreme Court of New York. 13 Defendants allegedas a defense the New Hampshire declaratory judgment for the insurerand moved for summary judgment. The court found that the same de-termination-that permission was granted on condition that O'Rourkenot be a passenger-would bar plaintiff's recovery against the ownerunder New York law214 as it had barred plaintiff's recovery against theinsurer. Plaintiff having had a complete trial in New Hampshire on theissue of permissive use "should not now have a second opportunity toestablish the same facts they failed to prove the first time. ' 21 5 The judg-ment for the indemnitor could be asserted by the indemnitee.

The fourth department reversed 216 on the ground that collateral es-toppel was not available in the absence of identity of issues. The issuein the New Hampshire proceedings, noted Justice Halpern, was permis-sive use under the terms of the liability insurance and rested on theintent of the parties. In the instant action, permissive use was to be de-termined in accordance with the intent of the legislature as expressed insection 59 of the Vehicle and Traffic Law. Since the ultimate fact ofpermission was not identical, plaintiffs were not estopped from "relitigatingthe underlying evidentiary questions bearing upon the ultimate issueof... permission....,- 7 The conflicts of laws problem was disposed of intwo steps: a determination that New Hampshire law controlled the effectto be given evidentiary findings, followed by a determination that NewHampshire law was substantially the same as New York on this point.

The court of appeals, reversing, did not supply a guide for distinguish-ing ultimate fact from evidentiary fact.21 The finding in the New Hamp-shire case that the permission was predicated on O'Rourke's not beinga passenger "was not a fragmentary finding of an evidentiary fact" butone "from which the resolution of the ultimate legal issue necessarilyfollowed. ' 219 Although the ultimate issue was different in New York,the same conclusion of non-permissive use would flow from a retrial ofall of the same operative facts. The Supreme Court of New Hampshirehad concluded that the findings of a specifically conditioned permission

213. 1 Misc. 2d 711, 147 N.Y.S.2d 893 (Sup. Ct. 1955), revd, 5 App. Div. 2d 440, 172N.Y.S.2d 47 (4th dep't 1958), rev'd, 7 N.Y.2d 87, 165 N.E2d 156, 197 N.Y.S.2d 129 (1959).

214. N.Y. Veh. & Traf. Law § 59 (now N.Y. Veh. & Traf. Law § 388).215. 1 Misc. 2d at 716, 147 N.YS.2d at 898.216. 5 App. Div. 2d 440, 172 N.Y.S.2d 47 (4th Dep't 1958), rev'd, 7 N.Y2d 287, 165

N.E.2d 156, 197 N.Y.S.2d 129 (1959).217. Id. at 447, 172 N.Y.S.2d at 54. The court refers to The Evergreens v. Nunan, 141

F.2d 927 (2d Cir.), cert. denied, 323 U.S. 720 (1944).218. 7 N.Y.2d 287, 293, 165 N.E.2d 156, 159, 197 N.Y.S.2d 129, 133 (1959).

219. Id.

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was "unquestionably warranted by the evidence." 2 0 The terms of thepermission having been fully litigated, firmly established and necessaryto the former decision for the indemnitor, the plaintiffs were estoppedfrom relitigating the same facts in their action against the indemnitee.

If one adopts the definition that an evidentiary fact is a "propositionto which no legal consequences immediately attach"2 21 but "affords somelogical basis-not conclusive-for inferring some other fact 2 2 2 and thata statement of ultimate fact "describes the very event to which legalconsequences attach,"12a then the presence or absence of permission wasan ultimate fact in Hinchey and the testimony establishing the terms ofuse constituted evidentiary fact.2 2 4

Hinchey appears to hold that facts necessary to the result may be con-clusive in a later claim between parties or their privies even though thefacts are not ultimate in the first action. Hinchey, however, involves asituation in which all of the evidentiary facts necessary to prove theultimate fact in the New Hampshire action were also necessary to provethe ultimate fact in the New York suit.2 2

5

Certainly the evidentiary facts supporting a finding of permission orthe absence of permission are vital enough under statutes similar to NewYork's section 388 and under the common coverage clauses of liabilitypolicies to warrant the most scrupulous attention of counsel in a vehicleaccident case. If, therefore, the exact nature of the permission is settledin an earlier-tried cause of action against the indemnitee or indemnitor,according such facts estoppel effect should not occasion cries of surprisethat one is bound on a collateral matter he did not contest vigorously. 22 0

Ownership of a vehicle and the conditions attached to permission are220. Hinchey v. National Sur. Co., 99 N.H. 373, 378, 111 A.2d 827, 831 (1955).221. Morris, Law and Fact, 55 Harv. L. Rev. 1303, 1326 (1942).222. W. Hohfeld, Fundamental Legal Conceptions 34 (1920).223. Morris, supra note 221, at 1326.224. "The distinction between propositions of fact and conclusions of law is that:

propositions of fact are descriptive; conclusions of law are dispositive. Propositions of factstate history; conclusions of law assign legal significance to that history." Morris, supra note221, at 1329. Brief for Defendants-Appellants (the Sellerses) at 40 suggests that three stepsare involved in issue determination: (1) a finding of evidentiary facts, (2) a finding ofultimate facts and (3) application of the law to the ultimate facts producing a decision onthe ultimate issue. The New Hampshire court reached a finding of ultimate fact-no

permission. The Appellants contended that the New York court had only to apply NewYork law to the ultimate facts to reach a conclusion as to permission under N.Y. Veh. &

Traf. Law § 59 (now N.Y. Veh. & Traf. Law § 388).225. Restatement of Judgments § 69, comment p (1942 and 1948 Supp.); for New

York recognition of the estoppel effect of a Virginia judgment, see Peare v. Griggs, 7 App.Div. 2d 303, 182 N.Y.S.2d 878 (1st Dep't 1959).

226. Permission is a "matter in issue," an essential element of the cause of action andis not collateral or incidental. 2 Freeman, supra note 187, at §§ 690, 691.

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examples of important evidentiary facts which are necessary antecedentsto a determination of liability. Once fairly tried and decided they shouldbe available to the proper parties in a subsequent case.2 2

The effort to formulate a comprehensible distinction between evidenti-ary and ultimate facts has not been fruitful. This differentiation mayaffect either the identity of issues requirement and/or the necessarilydetermined rule. Perhaps there is too much variation in the degrees ofimportance attributable to different categories of evidentiary fact rangingfrom the almost irrelevant detail to the almost singly decisive proposition.In a case such as Hinehey, where the absentee owner is sued, ownershipof the vehicle, permission to another to use the vehicle, the driver'snegligence and its causal relation to the plaintiff's injury are all indis-pensable steps to a final judgment of liability or no liability. Conse-quently, the approach of the court of appeals should be followed, andestoppel effect should be accorded the determination of the factual basisof permission once it has been fully tried.

Cummings v. Dresher

The case of Cummings v. Dresher 2 presents at once the thorniestproblems of collateral estoppel: the actually litigated, necessarily de-termined issue,2 -9 the identity of issues and the relationship of partiesinvoking or contesting the binding effect of a prior adjudication.

The state court action instituted by the driver (D2) and owner (02)of the Cummings car (car 2) against the driver (Dl) and owner (01)of the Dresher car (car 1)' 9 was preceded by two law suits against theCummingses in federal district court,"1 in which the plaintiffs were D1and his passenger (Pl). 23 D1 and P1 sued individually for personal

227. See New York State Labor Relations Bd. v. Holland Laundry, 294 N.Y. 480, 493,63 N.E.2d 68, 74 (1945).

228. 18 N.Y.2d 105, 218 N.E.2d 688, 271 N.Y.S.2d 976 (1966); see Note, 52 Cornell L.Q.724 (1967); 35 Fordham L. Rev. 559 (1967).

229. The issue of permission was absent from the case, it being conceded that BernardDresher operated car 1 with the permission of the owner, Standard Electric Co., althoughnot at the time on the business of the corporate owner, and that Mary Cummings operatedcar 2 with the permission of the owner, Martin Cummings, her husband.

230. 43 Misc. 2d 556, 251 N.YS.2d 598 (Sup. Ct. 1964), aff'd mem., 24 App. Div. 2d 912,264 N.Y.S.2d 430 (3d Dep't 1965), rev'd, 18 N.Y..2d 105, 218 N.E.2d 688, 271 N.YS.2d 976(1966).

231. 325 F.2d 156 (2d Cir. 1963). Since the amount in controversy exceeded $10,000 andsince the Dreshers were residents of Montreal and the Cummingses residents of NewYork, jurisdiction was based on diversity.

232. Another member of the Dresher family, a passenger in the back seat of car 1,escaped injury and appeared as witness for Bernard Dresher corroborating his version ofthe accident.

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injuries; the cases were tried before the same district judge and jury butwere not consolidated.

Testimony adduced at the trial of the Dl's and P1's claims exhibitedsharp conflicts over the facts of the collision.2 3 Each driver vigorouslycontended his own freedom from negligence and the other's lack of duecare. In his charge, District Judge Foley instructed the jury to considerthe two causes of action separately. 3 4 He also explained to the jury thatthe passenger (P1) might recover if he was not negligent even though thedriver (D1) was found negligent.3 5 At the end of the charge, the judgeagain cautioned the jury: "Keep your verdicts sel5arate . . . . Considerthe evidence separately as to each of the plaintiffs .... 1,23"

The district court jury rendered a verdict for P1 in his action against02 and D2. But in Dl's suit, the jury responded: "We find the defendant[D2] guilty of negligence and the plaintiff [D1] guilty of contributorynegligence to a very minor degree."2 7 The court requested the clerk toask the jury if their decision was no cause of action in favor of 02 andD2, and the jury replied affirmatively.2 13 D1 unsuccessfully appealed thedecision rendered against him.3 9 02 and D2 did not appeal from thejudgment for P1.

In the New York Supreme Court proceedings commenced in 1961, 02and D2 alleged three causes of action against D1 and 01 for propertydamage, personal injury and loss of services against D I and the corporateowner of car 1. The various stages of the litigation may be depicted asfollows:

I. P1 v. 02, D2 - J/P1II. D1 v. 02, D2 - J/02, D2

III. 02, D2 v. 01, Dl

As a complete defense in the third lawsuit, D1 offered the prior ad-judication of the negligence of the driver of car 2, and moved for sum-mary judgment. In denying the motion, Justice Main concluded that theprior decision in favor of the passenger of car 1 was not a bar to thepresent action, since an act of negligence may be a proximate cause ofinjuries to a passenger and "not necessarily" occupy the same causal re-lationship in producing injuries to the driver of the same vehicle.240

233. Brief for Appellant at 17a-143a; Brief for Respondent at la-lSa.234. Brief for Appellant at 145a.235. Id. at 146a-147a. The negligence of the driver "cannot be imputed to or held

against Henry Dresher riding as a passenger." Id. at 147a.236. Id. at 157a.237. Id. at 160a-161a.

238. Id.

239. 325 F.2d 156 (2d Cir. 1963).240. 43 Misc. 2d at 558, 251 N.Y.S.2d at 599-600; see text accompanying note 172 supra.

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Secondly, the prior judgment against D1 as plaintiff was not a bar tothe present suit by 02 and D2 because the jury's observation that bothdrivers were negligent was "merely gratuitous."2' 1 Had the jury simplyrendered a verdict of no cause of action without more, the verdict couldhave been predicated on the negligence of D1 or the freedom from negli-gence of D2. Since the court issued no instructions to make special find-ings, the sole office of the jury was to bring in a general verdict and anyvolunteered gloss could not attain the status of a necessarily determinedissue. The court, therefore, confined the application of collateral estoppelto issues which were essential to reaching a decision in the prior litiga-tion.

242

The appellate division in affirming the denial of defendants' motion forsummary judgment concluded that the prior judgment for P1 could notbe raised as a defense by D1 and 01 because different factors might beinvolved. 243 The court also agreed with the decision below that the onlyfinding necessary to render a verdict in the federal court case againstthe plaintiff, D1, was that he was contributorily negligent. 44

Had the contest over the availability of collateral estoppel as a defenseterminated at this point, Cummings would stand for an affirmation ofestablished judicial interpretation of the doctrine. Since the parties-liti-gant were not identical in the state and federal cases, a symmetricalmutuality of estoppel was not present. 40 Even omitting from considera-tion the fact that the corporate defendant in the second action was anentirely new party, it still remains that D 1 sought to borrow the judgmentfor his passenger in the latter's individual action in federal court against02 and D2. D1 was not a party in the suit brought by his passenger.There was no privity or derivative liability.

Nevertheless, the separate actions of D1 and P1 were tried togetheragainst the same defendants before the same judge and jury. How ac-curately did, or could the jury follow the instructions to consider theevidence for each plaintiff independently? While, formally, it was un-necessary to a general verdict of no cause of action in Di's case to make

241. 43 Misc. 2d at 559, 251 N.Y.S.2d at 600.242. Cambria v. Jeffery, 307 Mass. 49, 29 N.E2d 555 (1940). The contention of the

defendants' attorney was that there was no evidence in the federal court case which wouldpermit a jury to find D2 negligent to P1 and not to Di. The plaintiffs' attorney emphasized,on the otherhand, that the verdict was general: "No Comment of the jury %as asked for andanything blurted out by Juror number 12, acting as Foreman was his own personal opin-ion ... 2' Record at 41. See Purpora v. Coney Island Dairy Prods. Corp., 262 App. Div.908, 28 N.Y.S.2d 1008 (2d Dep't 1941).

243. 24 App. Div. 2d 912, 913, 264 N.Y.S.2d 430, 431 (3d Dep't 1965), revd, 18 N.Y.2d105, 218 N.E.2d 688, 271 N.Y.S.2d 976 (1966).

244. Id. at 913, 264 N.Y.S.2d at 431-32.245. Id. See also text accompanying note 120 supra.

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a pronouncement of the other driver's negligence, and while the passengerand driver in one car may be dissimilarly affected by the negligent actof the driver of the other car, are these principles workable when the evi-dence draws no clear distinctions between the defendant's negligence vis-ii-vis the passenger and his negligence vis-At-vis the driver of the same car?

There is no problem in Cummings of an attempted affirmative use ofcollateral estoppel since D1 and 01 interposed it as a defense.2 40 Neitheris any question raised of adversarial posture in the prior litigation sincethe record revealed that the drivers were active opponents throughout thejoint trial. They were adversaries in federal court on the issues of negli-gence and contributory negligence.

In reversing the order denying the defendants' motion for summaryjudgment, Chief Judge Desmond relied squarely on identity of issues.241

The jury's finding in the federal case that D2 was guilty of negligenceis not treated as gratuitious or fortuitous surplusage but rather in thenature of a special finding to be accorded the significance which a formalspecial finding would have merited, had the court addressed the specificquestion to the jury. 48 The "same people were parties and all the sameissues tried and decided" in the prior adjudication.2 4 The actual litiga-tion and actual decision of the negligence of D2 was the focal point, andfurther refinements in terms of a "necessarily determined" issue were notadmitted as a restriction, by the court, upon the availability of estoppel.The "actual litigation" satisfied the due process requirement of a fullopportunity to contest liability. The "actual decision" was exhibited inthe jury's supplementation of its general verdict.280 The opinion con-cluded that in the interest of a "non-repetitious judicial system," thecourt should give binding effect to the actually decided issue.

Judge (now Chief Judge) Fuld, in a concurring opinion reached thesame result but on a strictly procedural ground. 2

51 In his view, 02 and D2

246. In the view of the appellate division, if collateral estoppel is to be invoked by onenot a party in the prior case on the theory that the issues are identical, the doctrine maybe used only as a shield.

247. 18 N.Y.2d 105, 108, 218 N.E.2d 688, 689, 271 N.Y.S.2d 976, 977 (1966). The courtcited Israel v. Wood Dolson, Co., 1 N.Y.2d 116, 119, 134 N.E.2d 97, 99, 151 N.Y.S.2d 1, 4(1956) and Commissioners of State Ins. Fund v. Low, 3 N.Y.2d 590, 595, 148 N.E.2d 136,138, 170 N.Y.S.2d 795, 798 (1957).

248. Is it not particularly appropriate in New York, where plaintiff has both burdens onthe negligence issue, to respect the jury's conclusions?

249. 18 N.Y.2d 105, 107, 218 N.E.2d 688, 689, 271 N.Y.S.2d 976, 977. The corporateowner of car 1 was not a party in the federal court case but his liability, if any, wasdependent upon the liability of his driver.

250. The inscrutability of the general verdict, the difficulty of determining the actualfinding on which it is based, has aroused the criticism of eminent jurists advocating a greateruse of the special verdict. See pp. 42-47 infra.

251. 18 N.Y.2d 105, 108-09, 218 N.E.2d 688, 690-91, 271 N.Y.S.2d 976, 978-79 (1964).

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as defendants in the former federal proceeding should have interposed acompulsory counterclaim pursuant to Federal Rule 13a. 2 - Having failedto do so, the same parties were precluded from bringing subsequent causesof action as plaintiffs on the subject matter of their counterclaim. This ap-proach raises the interesting possibility of permitting a wider applicationof collateral estoppel in cases involving a prior adjudication in federalcourt. It also provokes the question of whether the procedural rules ofNew York practice should adopt the federal compulsory counterclaimrule. Perhaps at least in this area of vehicle accident litigation, the NewYork legislature should consider this and other measures to channel allclaims arising from the same occurrence into one composite trial. Theunderlying theme of the liberalization of party practice and of pleadingsis the avoidance of repetitious litigation. The requirement that those whoare already parties-defendant interpose their claims arising from the sameaccident would do no violence to that theme. -"3

If a direct procedural approach such as a compulsory counterclaim isnot available and collateral estoppel is invoked on an "identity of issues"basis, there is yet the intricate problem of the relationship of partieswhich must be faced. Who may borrow the benefit of another's favorablejudgment? If the first adjudication in Cummings (actually two individualcauses of action) by D1 and PI is not treated as a composite (even thoughnot consolidated) action, and volunteered comments of the jury are si-lenced by the general verdict, then Dl is indeed interposing for his de-fense in the second action a prior judgment to which he was not a partyor privy. A general verdict for 02 and D2 in Dl's suit against them needmean only that Dl was contributorily negligent and 02 and D2 would beat liberty as plaintiffs to prove their freedom from contributory negligencein a second action.

In Daly v. Terpening,2-5 the court carefully differentiated the roles ofpassenger and driver.2 5 But there was nothing in the record before thecourt of appeals in Cummings to justify a division of D2's acts into twoSee also United States v. Eastport Steamship Corp., 255 F.2d 795 (2d Cir. 1958) ; Home v.Woolever, 170 Ohio St. 178, 163 N.E.2d 378 (1959).

252. This point was not raised by the parties in any of the proceedings in the state orfederal courts.

253. In view of the present delays in bringing a negligence case to trial, there willusually be sufficient time to include in the counterclaim personal injuries which do notappear immediately.

254. 261 App. Div. 423, 26 N.Y.S.2d 160 (4th Dep't), aff'd mem., 287 N.Y. 611, 39 N.E.2d260 (1941).

255. See text accompanying note 173 supra. Given the facts of the instant cas.e, a juryin the consolidated trial of P1's and Dl's claims could quite reasonably conclude that DZ, bythe same act or acts was negligent toward both. Is the technicality that the trial was jointrather than consolidated a sufficient justification for discarding the reasonable "finding" thatD2 was negligent?

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categories: those affecting D1 and those affecting P1. Chief Judge Des-mond's opinion does not state, in so many words, that the driver mayavail himself of the passenger's judgment, but such a conclusion may beimplicit in the following passage:

At the close of these Federal court proceedings it was completely clear that the juryhad found that driver Mary Cummings had been found guilty of negligence and that,therefore, she as driver and her husband as owner had to pay damages to passengerHenry Dresher. Equally clear was the Federal court jury's finding that driver BernardDresher had been guilty of contributory negligence and so, notwithstanding the foundnegligence of driver Mary Cummings, Bernard Dresher could not recover against thedefendants Cummings.256

Or does the opinion rest solely upon the jury's statement of the respectivenegligence of both drivers in Dl's action?27 In the future interpretationsof this decision, judges may write one of the most provocative chapters inthe tortuous history of collateral estoppel.

III. RECOMMENDATIONS

Since the preclusionary effect of a judgment need not, according toDeWitt,21s be limited by considerations of mutuality, and assuming thatCummings2 59 does not eliminate the requirement of privity, the two chiefquestions affecting an expanded availability of collateral estoppel are:how may more individuals whose claims or liabilities arise out of thesame event be introduced to the first trial? How may more issues be con-clusively determined between those who are parties?

The present doctrine of collateral estoppel in New York appears topermit a prior adjudication to be used offensively or defensively, byparties, privies and derivatively liable persons, against a former partyor privy. DeWitt may logically be extended to include affirmative useby the primary actor (indemnitor) where the derivatively liable party(indemnitee) has obtained a judgment. There are precedents for this ex-tension, at least as a defensive plea,2 60 which with the abandonment ofthe shield-sword distinction, can justify such a development. Also, theinsurer should be able to assert against a former party, offensively ordefensively, a judgment for his insured or the insured's permittee wherethe basis of the insurer's non-liability has been determined."'

256. 18 N.Y.2d 105, 107, 218 N.E.2d 688, 689, 271 N.Y.S.2d 976, 977 (1964).257. The dissent analyzes both avenues by which D1 may assert collateral estoppel: via

the judgment for P1 and the jury's comment on D2's negligence in Dl's action. Id. at110-13, 218 N.E.2d at 691-93, 271 N.Y.S.2d at 980-82.

258. B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 225 N.E.2d 195, 278 N.Y.S.2d 596 (1967).259. Cummings v. Dresher, 18 N.Y.2d 105, 218 N.E.2d 688, 271 N.Y.S.2d 976 (1966).260. See note 126 supra.261. See pp. 44-46 infra.

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COLLATERAL ESTOPPEL

If the plaintiff chooses to sue only the driver, a procedure should beestablished whereby the owner can be made a party, thus implementingthe legislative policy expressed in the Vehicle and Traffic Law.-0- Presentpractice permits a defendant to "proceed against a person not a partywho is or may be liable to him for all or part of the plaintiff's claimagainst him.' 2 63 Thus, impleader is not available to the driver in thiscase, for the owner's liability, if any, is to the plaintiff.2C

How can the owner be converted into a party? It is suggested that apractice analogous procedurally, but not substantively,- 11 to "vouchingto warranty" be adopted.266 The procedural similarity lies only in noticeof the litigation 267 which the driver (or possibly the clerk of the court)would be required to communicate to the owner. The content of thenotice and manner of communication should be reduced to a prescribedform to insure that the owner will be promptly and adequately alerted.The owner will be advised of his right to come in and participate fullyin the defense. Finally, the notice should inform the owner that he willbe bound by the judgment whether or not he avails himself of the invita-tion. Upon appearing, the owner would be free to present, and the court toweigh, any argument that his interest wil be prejudiced. The court in itsdiscretion may choose to stay or to transfer the proceedings after con-sideration of the rights of all the parties involved.

It should be noted that compulsory joinder is in no sense part of theproposal here advanced. There is no merit in bringing back all of theformer problems attendant upon that rule, now that the practice statutehas substituted a flexible and equitable procedure.2 8 In view of the longhistory in this state of the policy of owner responsibility, a fair methodfor vouching in the owner, according him a choice to defend or not andforewarning him of the conclusiveness of the judgment, is worthy of con-sideration.

Where the absentee owner alone is sued, he has a right of indemnityagainst the driver and could implead the latter.,00 However, since thejudgment for the plaintiff will be satisfied out of the owner's liability in-

262. See pp. 4-11 supra.263. N.Y. C.PL.R. § 1007 (emphasis added).264. N.Y. Veh. & Traf. Law § 388.265. There is no accurate analogy between the owner of a vehicle and the manufacturer

of chattels or the vendor of real property.266. See 2 W.S. Holdsworth, A History of English Law 76, 112-14 (3d ed. 1923); Degnan

& Barton, Vouching to Quality Warranty: Case Law and Commercial Code, 51 Calif. L.Rev. 471 (1963).

267. See N.Y. U.C.C. § 2-607(5) (a).268. N.Y. C.P.L.R. § 1001.

269. But see note 125 supra.

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surance, the plaintiff's interest would not be advanced by this procedure.A judgment for or against the owner should be binding upon the driver,and for that reason, it may be necessary to bring him in. As a practicalmatter, however, the plaintiff will seek his full recovery in the suit againstthe owner. If DeWitt is extended, the driver could use the owner's favor-able judgment against the plaintiff since the plaintiff was a party to theprior adjudication.

Now assume that the plaintiff has joined both owner and driver as co-defendants. Although they are "joinable" tortfeasors, the liability, if any,of the driver rests on his own commissions or omissions; the owner's, isimposed by statute, even though he may be innocent of any fault. Theowner can, therefore, cross claim against the driver and avoid a separatelaw suit to enforce his right of indemnification. Cross-claiming wouldyield more practical results, however, where the defendants represent dif-ferent vehiclesY °0 In such a case, the co-defendants should be encouraged,if not compelled, to interpose any claims between them arising from thesame occurrence. New York's liberal cross claim provision embraces anyclaim between co-defendants.2 ' Why should it not require those alreadymade parties at the plaintiff's election to settle the issue of liability interse?

Whether or not compulsion is introduced into present cross claim pro-cedure, the courts can supply a strong incentive by allowing the first judg-ment against both defendants to be asserted in a subsequent suit betweenthem. The argument that defendants are not adversaries has a hollowsound. Protecting his inchoate right to contribution should be sufficientstimulus for any defendant to cast fault upon his co-party. The formalisticadversarial requirement of Glaser22 ought to be discarded so that a judg-ment may be conclusive between co-defendants.

Where the accident involves more than two vehicles, the possible com-binations of fault increase as does the complexity of the evidence. Ajudgment against some or all of the owners or drivers may not fairlyreflect the interrelationship of their liability. In such case, the judgmentshould not be used to cut off a claim where additional facts require con-sideration. A renunciation of the adversarial rule leaves the applicabilityof collateral estoppel open to the discretion of the court.

When the lawsuit is a contest between the owner or driver of onevehicle and the owner or driver of the other involved in the accident, acompulsory counterclaim rule would obviate re-trial of the same facts.While such a requirement would no longer permit the defendant the

270. E.g., P1 v. 01, 02 or 03 v. 01, 02.271. N.Y. C.P.L.R. § 3019(b).272. See text accompanying note 95 supra.

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COLLATERAL ESTOPPEL

free choice which he now has, to pursue his cause of action as an inde-pendent suit rather than as a counterclaim, 27 13 the pressing need toeconomize litigation in the accident field outweighs individual preferences.The philosophy of the liberalized party practice provisions in the CPLRis to encourage the joining of as many claims as due process and trialconvenience permit.

What expansion, consistent with due process, can be advocated in theclass of persons who may assert collateral estoppel? What of those whooccupy a "litigational or factual privity" relationship-such as the pas-sengers of the same vehicle, or the passengers and owner or driver ofthe same vehicle? It is suggested that a passenger should be able to availhimself of the judgment for a fellow passenger or for the owner or driverof his vehicle, and that the owner or driver should be able to assert ajudgment for his passenger, provided, the opposing owner or driver can-not demonstrate that his conduct toward one was distinguishable fromhis conduct toward the other. The burden of proof would be placed uponthe party resisting collateral estoppel. Since it is believed that most ac-cidents do not occur under circumstances permitting much in the way oflast clear chance, the culpable party will have been negligent both to theother driver and to the latter's passenger. The door is not closed to proofof the contrary; but in the absence of such proof, passenger and driver(or owner) should be able to take advantage of each other's judgment.Similarly, where the defendant's liability has been conclusively estab-lished to one passenger, the court should not assume that the defendant'sacts did not, in like manner, affect another passenger. Rather the de-fendant should be required to demonstrate the divisibility of his conduct.What has been said above does not reduce the necessity of the plaintiff'sproving his freedom from contributory negligence.

Turning now to the second question-how may the initial litigationconclude more issues? Assuming a case such as Hinchey v. Sellers,27 4

where the insurer is before the court in the first contest, the thoroughtrial of all the facts affecting the question of permission should have con-clusive effect as to the same evidentiary facts in a later suit involvingthe owner or driver. While the ultimate issues are different-permissionas a predicate for insurance coverage, versus permission as a basis forestablishing statutory liability-what the owner and his bailee said ordid can be adduced in testimony and reduced to findings by the courtor by the jury in answer to interrogatories. Similarly, if the owner ordriver is first sued, clearly established evidentiary facts underlying adetermination of permission under Vehicle and Traffic Law section 388

273. N.Y. C.P.L.R. § 3019(a).274. 7 N.Y.2d 287, 165 N.E.2d 156, 197 N.YS.2d 129 (1959).

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FORDIJAM LAW REVIEW

should not be re-heard in an action against the insurer. 27' The court's

findings or the jury's specific responses will thus constitute an essentialstep in reaching two decisions: the one based on construction of the in-surance contract, the other on construction of the statute. There is nopreclusion as between these distinct issues.

As to negligence, the court of appeals in DeWitt has clearly statedthat a judgment for the plaintiff-indemnitor-driver is conclusive upon theissues of negligence and contributory negligence in a subsequent actionagainst the same defendant by the indemnitee-owner. The same shouldobtain where the indemnitee is the initial plaintiff. When the situationis reversed and the indemnitor is sued and wins, the judgment necessarilydetermines only the contributory negligence of the losing plaintiff.20

Thus, there are obstacles to the affirmative use of the judgment eitherby the indemnitor or indemnitee.

Absent a gratuitous observation of the jury or one which the courtchooses to recognize, the general verdict does not speak to the questionof the winning defendant's negligence. However, the matter may be clari-fied by instructions to the jury to make special findings on both points-negligence and contributory negligence. While this theoretically requiresthe jury to deliberate upon an additional and separate matter, the juryin most cases probably formulates a conclusion as to the negligence ofeach party. In New York, since the plaintiff bears the burden of proofon both scores, the matters are in issue, and the evidentiary basis shouldbe laid at the trial for determination of the negligence of each party.

The judge might be aided in this respect by the formulation of patterninterrogatories, similar to the pattern jury instructions prepared by jus-tices of New York's supreme court.77 Much has been said about the de-ficiencies of the general verdict.2 78 The availability and utilization of asimplified procedure for special findings can enlarge the preclusionaryscope of the first judgment.

While the strictures that the binding proposition be ultimate2 70 and

275. As a practical matter, counsel for the insurer will contest the issue of permissionin all three cases. The court ought, however, to apprise the attorneys representing theindividual parties, of the significance of the factual determinations relating to permissionand enlist their cooperation in achieving a full hearing.

276. Cambria v. Jeffery, 307 Mass. 49, 29 N.E.2d 555 (1940); see Cummings v.Dresher, 18 N.Y.2d 105, 109, 218 N.E.2d 688, 691, 271 N.Y.S.2d 976, 979 (1966) (Bergan, J.dissenting).

277. Committee on Pattern Jury Instructions of the Association of Supreme CourtJustices, New York Pattern Jury Instructions-Civil (1965).

278. See Skidmore v. Baltimore & O.R.R., 167 F.2d 54 (2d Cir. 1948); Sunderland,Verdicts, General and Special, 29 Yale L.J. 253 (1920).

279. See text accompanying notes 191-96, 219-24 supra.

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COLLATERAL ESTOPPEL

necessarily determined28° reflect a laudable and meticulous concern lesta party be bound on a matter he or the court treats collaterally, it doesseem that an adequate measure of protection flows from the requirementthat the conclusive proposition shall have been actually litigated.28 Addto this the requirement that the matter determined be an essential step inreaching the final result, and a liberal and adaptable rule for issue bindingemerges. It may appear too free-form but it is recommended for thetypical accident case. Its operation must always be stayed where theresisting party can demonstrate the unfairness or inadequacy of the hear-ing.

It is acknowledged that if the innovations suggested above were imple-mented, the format of the accident case would be less like an individu-alistic duel and more like a tri-partite engagement in which the publicinterest in efficient judicial administration would be omnipresent. That,however, is not a frivolous consideration. If the plaintiff no longer enjoysfree rein in managing his lawsuit, he may be rewarded by a speedier andmore comprehensive adjudication.

Judges in the past have not reposed sufficient confidence in themselvesto tolerate the operation of collateral estoppel without a network of strin-gent rules. The exceptions that have evolved, and the formalistic controlsthat have been abandoned, bear witness to the fact that there is nosubstitute for trained judicial judgment as the best means for safeguard-ing the right of due process.

280. See text accompanying notes 192-94 supra.281. See text accompanying note 250 supra.

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APPENDIX

In the diagrammatic representations employed, all parties owning, driving,occupying as passengers or insuring the first car will be represented by thepostscript "1"; those associated with the second car will bear the postscript "2,"etc. The alphabetical designations will be "0" for owner, "D" for driver, "P"for passenger and "Ir" for insurer. The symbol "J/" represents "judgment for."The Roman numerals "I" and "II" will indicate the first action and the secondaction respectively. Thus:

I. 01 v. 02 - J/01

means that in the first action the owner of the first car sued the owner of thesecond car and judgment was rendered for the former.

HAVERHILL v. INTERNATIONAL RY., 217 App. Div. 521, 217 N.Y.S.522 (4th Dep't 1926), aff'd mem., 244 N.Y. 582, 155 N.E. 905 (1927),overruded, B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 225 N.E.2d 195, 278N.Y.S.2d 596 (1967).

I. D1 v. 02 - J/D1

II. 01 v. 02 - 01 may not useJ/D 1

NEENAN v. WOODSIDE ASTORIA TRANSPORTATION CO., 261 N.Y.

159, 184 N.E. 744 (1933).

I. ODI v. 02 - J/OD 1

II. P2 v. OD1, 02 - ODI may not useJ/OD1

GOOD HEALTH DAIRY PRODUCTS CORP. v. EMERY, 275 N.Y. 14, 9

N.E.2d 758 (1937).

I. D1 v. 02, D2 - J/D1

II. 02, D2 v. 01, D1 - D1 may use J/D1

- 01 may use J/D1

ELDER v. NEW YORK & PENNSYLVANIA MOTOR EXPRESS, INC.,284 N.Y. 350, 31 N.E.2d 188 (1940).

I. 101 v. 02

02 V. 01 - 5/01II. D1 v. 02 - D1 may not use

J/01

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DALY v. TERPENING, 261 App. Div. 423, 26 N.Y.S.2d 160 (4th Dep't1941), aff'd mere., 287 N.Y. 611, 39 N.E.2d 260 (1941).

I. D1

II. P1 (byDl)

III. D2

V. D2

V. D2

v. Dl

- J/D2

-J/P 1

- D I may not useJ/P 1

KINNEY v. STATE, 191 Misc. 128, 75 N.Y.S.2d 784 (Ct. Cl. 1947).

v. State

v. State

- J/PI

- P2 may use J/PI

UNITED MUTUAL FIRE INS. CO. v. SAELI, 272 App. Div. 951, 71N.Y.S.2d 696 (4th Dep't), affd mere., 297 N.Y. 611, 75 N.E.2d 626 (1947).

I. A

II. A

V. 01, D1

V. D2

V. X

V. Y

HINCHEY v. SELLERS, 7 N.Y.2d 287,(1959).

I. P1

II. PI

V. Irl

V. 01

- J/01, D1

- J/D1

- Irl, 01 may useJ/O1, DI andJ/D 1

N.Y.2d 116, 134 N.E.2d 97, 151

- J/X

- Y may use J/X

165 N.E.2d 156, 197 N.Y.S.2d 129

- J/Irl

- 01 may use evi-dentiary basis ofJ/Irl

QUATROCHE v. CONSOLIDATED EDISON CO., 11 App. Div. 2d 665,201 N.Y.S.2d 520 (1st Dep't 1960).

I. 01, D1 V. 02

II. P1 V. 02

- J/O1, D1

- P1 may not useJ/01, Dl

I. P1

II. P2

I. jD2I. DI

Il. Irl, 01 v. D2

ISRAEL v. WOOD DOLSON CO., IN.Y.S.2d 1 (1956).

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MINKOFF v. BRENNER, 10 N.Y.2d 1030, 180 N.E.2d 434, 225 N.Y.S.2d47 (1962).

v. Dl, 02, D2 - J/03

v. 02, D2 -- 02, D2 may not useJ/03

CUMMINGS v. DRESHER, 18 N.Y.2d 105, 218 N.E.2d 688, 271 N.Y.S.2d976 (1966).

III. 02, D2

V. 02, D2

v. 02, D2

V. 01,Dl

- J/P1

- J/02, D2

- O1, D1 may useJ/P1

B.R. DE WITT, INC. v. HALL, 19 N.Y.2d 141, 225 N.E.2d 195, 278 N.Y.S.2d596 (1967).

I. D I v. 02 - J/D I

I. 03

II. DI

II. 01 v. 02 - 01 may use J/D1