Tate, Donald J.

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Louisiana Law ReviewVolume 14 | Number 4Concepts of Legislative Power: A SymposiumJune 1954Louisiana Practice - Res Judicata - Master andServantDonald J. TateThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationDonald J. Tate, Louisiana Practice - Res Judicata - Master and Servant, 14 La. L. Rev. (1954)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol14/iss4/14NOTESControl,8 the court, quoting from American Jurisprudence,9 said:"'The legislature has no power, under the guise of police regula-tions, arbitrarily to invade the personal rights and liberty of theindividual citizen, to interfere with private business, or imposeunusual and unnecessary restrictions upon lawful occupations,or to invade property rights'." If the court felt that fundamentalrights were being invaded under Article 74 as amended, as itseems they did feel, they should have invalidated the law onthose grounds.William J. DoranLOUISIANA PRAcTIcE-RES JUDICATA-MASTER AND SERVANTPlaintiff sued the state, after its waiver of immunity, to re-cover damages for the death of her husband. Her claim wasbased solely upon the alleged negligence of the state's employees.In a suit previously instituted against the employees on the samecause of action, the employees had been declared free of fault andjudgment had been rendered accordingly. In the present pro-ceedings, the state interposed the exception of res judicata, basedupon the judgment in favor of the employees rendered in theprior suit. Held, exception sustained. The Supreme Court hasmade an exception to the Civil Code requirement of identity ofparties for invoking res judicata, and this case falls within the ex-ception. McKnight v. State, 68 So.2d 652 (La. App. 1953).The Supreme Court decision relied on by the court of appealis Muntz v. Algiers.' In that case, plaintiff had sued defendantrailway company's lessee for the death of his child, and the lesseehad been found innocent of fault. In a contemporaneous actionin a different court against defendant railway company as thevicariously liable lessor, plaintiff relied entirely on the allegednegligence of defendant's lessee. Defendant's exception of resjudicata, founded on the judgment exonerating the lessee ren-dered while the suit against the defendant lessor was pending,was sustained. Article 2286 of the Civil Code, from which theLouisiana principles of res judicata emanate, was not mentionedin the court's opinion.8. 216 La. 148, 172, 43 So.2d 248, 256 (1949).9. 11 AM. JUR. 1078, § 303 (1937).1. Muntz v. Algiers & G. St. Ry., 116 La. 236, 40 So. 688 (1906).1954]LOUISIANA LAW REVIEWArticle 2286 provides: "The authority of the thing adjudgedtakes place only with respect to what was the object of the judg-ment. The thing demanded must be the same; the demand mustbe founded on the same cause of action; the demand must bebetween the same parties, and formed by them against each otherin the same quality." (Italics supplied.) Certainly the languageof the article is clear and seems to admit of no exception. Onthe basis of the same requirement of identity of parties in theFrench archetype of Article 2286, French commentators who haveconsidered the question presented in the instant case and Muntzv. Algiers believe that the authority of the thing adjudged wouldnot avail the defendant in the second suit under French law.2It is therefore submitted that the decisions in the present caseand Muntz v. Algiers cannot be supported by the basic Code pro-vision. Assuming arguendo that the courts were authorized tomake an exception to the requirements of the article, is the ruleso established sound? This discussion contemplates a fact situa-tion involving the completely vicarious liability of one party forthe alleged fault of another who is also liable. For convenience,these parties will be designated "master" and "servant," indicat-ing the context to which the discussion is most pertinent.The rule of the present case is the rule at common law.8Commenting on its formulation in the Restatement of Judg-ments,4 the American Law Institute presents and attempts toanswer some of the questions raised by its application. Moststriking is the apparent unfairness of making an adverse judg-ment in a suit against the servant a complete bar to a suit againstthe master without, conversely, making a favorable judgment inthe first suit binding on the master as well as the servant. TheInstitute dismisses this absence of mutuality as unimportantwhen the plaintiff has had his day in court with an opportunityto present his full case. There hardly seems to be the force in thecircumstance of plaintiff's having had a day in court that wouldvindicate the partiality of the rule. In practice, it gives the mastertwo opportunities to escape liability, one by assisting in theservant's defense and another by conducting his own. On the2. LALOU, TRAITI§ PRATIQUE DE LA RESPONSAILITt ClmE 623, no 1084 (4th ed.1949); 2 SOURDAT, TRAITA GftNARAL DE LA RESPONSABILITA OU DE L'AcTIoN EN DoM-MAGES-INT]RETS EN DEHORS DES CONTRATS 37, no 798 (6th ed. 1911). Diligentsearch disclosed no instance of the presentation of this question to a Frenchcourt.3. RESTATEMENT, JUDGMENTS §§ 96, 99 (1942).4. Id. at 473.[VOL. XIVNOTESother hand, the plaintiff who loses his suit against the servantloses all. If he is successful, the common law does accord hisjudgment against the servant the force of a rebuttable presump-tion in his suit against the master;5 but the fact remains that themaster is not bound. Plaintiff ordinarily can protect himself byjoining master and servant as parties defendant. But in caseslike the present one, where an attempt to make the state a partydefendant prior to its waiver of immunity would be a vaingesture, plaintiff is powerless to avoid the effects of the rule.Nor can he sidestep it in cases like Muntz v. Algiers, where theparties defendant are not amenable to suit in the same court.Interests other than the plaintiff's are to be considered, how-ever. "If the State has afforded an opportunity to the parties tolitigate their claims and a final judgment has been rendered, it isto the public interest that they should not be permitted to reliti-gate the same matters."6 At the root of this interest is what oneFrench writer has called the dogma of the judge's infallibility.7Successive contrary judgments on the same questions of law andfact would tend to lower the station of the courts in the publicmind. This danger appears in bold relief in fact situations like theones in question. The master may recover from the servant thatwhich he has been condemned to pay a third party who hassuffered damage as a consequence of the servant's fault." Supposethat, in a suit against the servant alone, he has been declaredfree from blame; and, in a subsequent suit against the master,the master has been held liable to the injured plaintiff on thebasis of the servant's fault. This would be possible under the ruleproposed by plaintiff in the instant case. The fallibility of thecourts would be dramatically displayed in the master's suitagainst the servant for indemnification. The servant would havea judgment pronouncing him innocent of any fault and the masterwould have a pronouncement of equal dignity to the contrary.The effect of this anomaly on the layman's respect for the lawand the courts is not difficult to imagine. Moreover, judgment infavor of the servant in the master's suit would be unfair to themaster; and judgment for the master would in effect permit5. Id. at 481.6. Id. at 9.7. 2 MAZEAUD, TRAITi§ THEORIQUE ET PRATIQUE DE LA RESPONSABILITh CIVILEDLICTUELLE ET CONTRACTUELLE 603, no 1730 (4th ed. 1949).8. Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539(1922); Sutton v. Champagne, 141 La. 469, 75 So. 209 (1917); Costa v. Yochim,104 La. 170, 28 So. 992 (1900); American Employers' Ins. Co. v. Gulf StatesUtilities Co., 4 So.2d 628 (La. App. 1941).1954]LOUISIANA LAW REVIEWthe plaintiff to recover from the servant indirectly, via the master,that which a court had decided he could not recover directly.It is upon this latter consideration that the decision in Muntz v.Algiers was based. These bizarre results are avoided by theapplication of the rule of both the common law and the presentcase, that a judgment in favor of the servant on the merits is abar to a subsequent action against the master. But then theinjustice to the plaintiff previously discussed is encountered.It is submitted that Article 2286 does not represent the legis-lature's choice of horns in this dilemma. It is unlikely that thepioblem was foreseen at all by the redactors. Article 2320 indi-cates that the redactors expected the master's responsibility forhis servant's torts to arise only when some fault was imputableto him." If this effect were given the article, the problem of theinstant case would never arise, for the suit against the masterwould be predicated on the master's fault, which would not havebeen adjudicated in a suit against the servant based upon theservant's fault. For this reason, Article 2286 tannot realisticallybe said to apply to the problem at hand. The court in Muntz v.Algiers did not expressly attempt to make an exception to Article2286 in arriving at its decision. Although the case was presentedby way of an exception of res judicata, the article was not men-tioned in the court's opinion proper. The decision was based uponthe court's assumption that a judgment against the lessor wouldentitle him to indemnification from the lessee, despite the lessee'sacquittal of fault in the previous suit, and that it would be grosslyunfair to let the plaintiff collect from the lessee indirectly whata court had finally decided the lessee did not owe him. It couldhave been based as well on the contrary assumption that thelessor would not have been entitled to recoupment from thelessee, who had been absolved of responsibility to the plaintiff,and that judgment against the master would have been, forthat reason, an injustice to him. If this had been the basis of thedecision in Muntz v. Algiers, authority to support it would seemto be available. Article 3061, in the title of the Civil Code on sure-tyship, provides that "The surety is discharged when by the actof the creditor, the subrogation to his rights, mortgages andprivileges can no longer be operated in favor of the surety."9. Art. 2320, LA. CVIL. CODI of 1870: "Masters and employers are answer-able for the damage occasioned by their servants and overseers, in the exer-cise of the functions in which they are employed. . . . In the above cases,responsibility only attaches, when the masters or employers . . . might haveprevented the act which caused the damage, and have not done it."[VOL. XIVNOTESThe analogical application of this provision would have beennothing unusual in a civilian jurisdiction, where, traditionally,code provisions are held in high regard and applied generously tofactual contexts not within the strict purview of their terms.'0Such an application of Article 3061 in the instant case and Muntzv. Algiers would have led to the result which the court thoughtdesirable without exposing the court to suspicion that it disre-garded the plain letter of the law.It is therefore submitted that the instant case and the enig-matic decision in Muntz v. Algiers do not reach wrong results.Both can be justified, not as making an exception to Article 2286,which admits of no exception and is of doubtful application, butas reaching the result which the legislature dictated in theanalogous situation contemplated by Article 3061. Although therule they established is, as suggested above, unfair to plaintiffs,this unfairness can be offset by according a judgment obtainedagainst the servant considerable weight as evidence of the serv-ant's fault in the subsequent suit against the master." If thiswere done, the added risk to which the master would be exposed,that the plaintiff would seek to obtain a judgment against theservant collusively, should serve to deprive plaintiffs of cause tocomplain of the rule.Donald J. TateLOUISIANA PRACTICF,-SPLITTING CAUSES OF ACTIONPlaintiff filed suit to recover for property damage sustainedin an automobile collision and, prior to trial, filed a second suitagainst the same defendants for personal injuries arising fromthe same accident. Trial of the property damage suit resulted ina judgment for plaintiff, which was paid by defendants within afew days. At that time a release was executed, signed only byplaintiff, which recited:"[T]his release shall in no way affect [plaintiff's] claim forinjuries . . . asserted against [defendants] in a second suitnow pending in the [same court]. The release herein granted10. See Franklin, Equity in Louisiana: The Role o Article 21, 9 TULANEL. REV. 485, 501 (1935); Morrow, Louisiana Blueprint: Civilian Codificationand Legal Method for State and Nation, 17 TULANE L. REV. 351, 390 (1943).11. RESTATEMENT, JUDGMENTS 481 (1942).1954]

Louisiana Practice - Res Judicata - Master and Servant

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Louisiana Practice - Res Judicata - Master and Servant

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