liability to the plaintiff, stating that no useful purpose would be served by a re-trial of the issues of damages or of the causal negligence of the third-party defendant, Moore. Although the Amended Order sets aside the judgments in both claims, it states:
'The special verdict of the jury in the third-party claim shall remain in full force and effect.'
(See Document No. 48 in Civil Action No. 24142.)
A. Motion of Defendant Deal
Deal and Moore were adverse parties in the former action.
The third-party complaint in that action charged Moore with being the cause of the same accident involved in this suit and the Jury found that Moore's negligence was the proximate cause of the injuries to Miss Natoli which she sustained in that accident.
Rule 13(a) requires that a claim, arising out of the same occurrence which is the subject matter of the opposing party's claim and not requiring the presence of third parties over whom the court cannot acquire jurisdiction, be pleaded as a compulsory counterclaim. Rule 13 applies to third-party actions. See next-to-last sentence of F.R.Civ.P. 14(a). The third-party action in Civil Action No. 24142 was filed on February 20, 1958, and, at that time, there was no suit pending on the claim involved in this action.
In view of F.R.Civ.P. 13 and 14, this civil action against Deal could not be maintained if there has been no waiver of this defense because the claim on which it is based must be asserted as a counterclaim in Civil Action No. 24142.
The defense based on F.R.Civ.P. 13(a), which concerns compulsory counterclaims, was not raised until the spring of 1961 (see Document No. 26), at which time the period of limitations on this cause of action against Deal had expired. Furthermore, Deal's answer filed on July 15, 1959, in this case did not raise the issue of waiver of this defense specifically as apparently required by F.R.Civ.P. 8(c) (Document No. 4). See Union Paving Company v. Downer Corporation, 276 F.2d 468, 470 (9th Cir. 1960). Under these circumstances, it is not appropriate to dismiss this cause of action of this ground, at least until the judge handling Civil Action No. 24142 has had an opportunity to pass upon a motion to file the counterclaim in that action, which is the proper method of raising this cause of action under the rules.
B. Motion of Defendant Lucas
The instant Motion for Summary Judgment is also based on the claim that there has been prior determination of the factual issues on which plaintiff's suit is grounded. The jury in Civil Action No. 24142, in which action Deal was defendant and third-party plaintiff, found that Moore's negligence was the proximate cause of the injuries to his passenger, Miss Natoli. The occurrence (i.e., the accident) is the same in both cases and, even if this 'cause of action' were considered different because this case is based on personal injury and property damage allegedly incurred by Moore, whereas Civil Action No. 24142 involved personal injuries of Natoli, the doctrine of collateral estoppel could apply here.
This Circuit has defined collateral estoppel as the doctrine 'by which questions of fact and perhaps of law actually litigated in the action are conclusively determined in subsequent actions in which the same questions arise, even though the cause of action might be different.' Caterpillar Tractor Co. v. International Harvester Co., 120 F.2d 82, 84, 139 A.L.R. 1 (3rd Cir.1941).
If the action against Deal is barred for the reasons stated under B above, the motion of Lucas should also be granted. The action by Natoli against Deal was based on the alleged negligence of Deal's servant or employee, Lucas, acting in the scope of his employment, and Moore's answer to the third-party complaint in Civil Action No. 24142 alleged that Lucas, as the driver of Deal's truck, was negligent. Defendant Lucas is in privity with his employer, Deal, as to the issues here involved and is entitled to the benefit of the doctrine of res judicata or collateral estoppel. See Mooney v. Central Motor Lines, 222 F.2d 572, 573 (6th Cir.1955); Restatement, Judgments, § 83; cf. United States v. California Bridge & Construction Co., 245 U.S. 337, 341-344, 38 S. Ct. 91, 62 L. Ed. 332 (1917).
However, since there is at this time no 'final judgment' present in the third party action in Civil Action No. 24142, no order will be entered on the motion of defendant Lucas at the present time.
The findings against Moore do not estop him unless they were a determining factor in the judgment entered on December 14, 1960. See Restatement, Judgments, § 68. Since the judgment of December 14, 1960, in Civil Action No. 24142 could have been based solely on the finding in the answer to question 1b of Document No. 23 in Civil Action No. 24142, which was favorable to his position in that action, an appeal as to the findings adverse to him in answers to questions 2a and 2b would have been fruitless.
However, after the new trial which has been granted in the principal action in Civil Action No. 24142, a judgment may ultimately be entered which would support Deal's contention that summary judgment should be entered for him on the ground of res judicata or collateral estoppel.
When a final judgment has been entered in the third-party action in Civil Action No. 24142, defendants Deal and Lucas may notify the undersigned that the record makes their Motion for Summary Judgment in this action (Document No. 16) ready for decision.