Now, in the present action involving the same factual and legal issues, Makariw's administratrix is suing Rinard for damages.
The issue presented is whether or not a prior determination that an employee (Makariw) was negligent and that the owner (Rinard) was not negligent estops the personal representative of the employee (Makariw) from claiming in a later suit that Rinard was negligent and that Makariw was not negligent.
The verdict and judgment against Y.B.H. in the prior action was predicated on principles of respondeat superior. There was no independent act of negligence on the part of Y.B.H. alleged in the prior suit.
Whether or not an action is barred by prior litigation is determined in diversity cases by the law of the state in which the Federal Court is sitting. See Hartmann v. Time, Inc., 166 F.2d 127, 138 (3 Cir., 1947); Kimmel v. Yankee Lines, 224 F.2d 644, 647 (3 Cir., 1955); Angel v. Bullington, 330 U.S. 183, 67 S. Ct. 657, 91 L. Ed. 832 (1947).
Under Pennsylvania law, the rule of res judicata is that when a Court of competent jurisdiction has determined a litigated cause on its merits, the judgment entered, until reversed,
is, forever and under all circumstances, final and conclusive as between the parties to the suit and their privies, in every factual and legal issue judicially determined which relate directly to the case then before the Court. Helmig v. Rockwell Mfg. Co., 389 Pa. 21, 29, 131 A.2d 622 (1957).
Our colleague, Judge Van Dusen, has held that where an employer is subjected to suit under the principle of respondeat superior, for the acts of his employee, all issues judicially determined therein bind the employee who is in privity with his employer. Moore v. Deal and Lucas, 203 F.Supp. 66 (E.D.Pa.1962); Waynik v. Suhyda, 22 Pa.Dist. & Co.R.2d 208 (Cambria Co. 1960).
Therefore, we hold that Makariw was in privity with his employer Y.B.H. and is concluded by the prior adjudication of his negligence and Rinard's freedom from culpability.
This presents the problem of deciding whether Makariw's personal representative, who was not a party to the prior litigation, is also bound under principles of res judicata.
The strict technical rule of res judicata requires that four conditions be present: (1) identity of the subject matter; (2) identity of the causes of action; (3) identity of persons and of parties to the action; and (4) identity of the quality in the persons for or against whom the claim is made. 20 P.L.E. Judgment, Ch. 8, §§ 251-347; Helmig v. Rockwell Mfg. Co., supra, 389 Pa. at p. 29, 131 A.2d at p. 626.
In the instant survival action the administratrix succeeds to the decedent's right of action for his estate and in the wrongful death action the right vests in the widow or personal representative. 'Each is designated by law to serve as the alter ego of the deceased, and both trace their rights to this common source.' Kannel v. Kennedy, 94 F.2d 487, 488 (3 Cir., 1937). Also, for all practical purposes the administratrix in this action occupies the same antagonistic relation toward Rinard as did her decedent in the earlier action.
Res judicata may be invoked to bar an action on the policy of the law to end litigation rather than on technical rules of privity.
For the plaintiff to recover in this action she will have to prove Rinard was negligent when this issue has already been resolved in his favor. To allow this matter to be relitigated would render the prior trial and verdict a useless exercise in futility.
No case has been found which is directly in point on this problem where the issues are similar and one of the identities is missing between the first and second actions. However, there are cases which state that a former judgment operates as a collateral estoppel to bar a relitigation of issues previously litigated, regardless of whether it was based upon the same cause of action as the second suit.
A fortiori, where the second suit arises out of the same cause of action, the doctrine of collateral estoppel operates as an absolute bar. The spirit and intent of the doctrine of res judicata and collateral estoppel warrant the granting of this motion to dismiss.