The rule seems to be that one may be guilty of negligence which is a proximate cause of injuries to a passenger in a motor vehicle accident and that the same negligence is not necessarily the proximate cause of injuries to the driver of the other vehicle. Daly v. Terpending, 261 A.D. 423, 26 N.Y.S.2d 160. In the decision in the Terpening case, at pages 426 and 427, 26 N .Y.S.2d at pages 163 and 164, the Court said, 'Then we have the situation which arises on account of the differences between a driver and passenger in an automobile which comes to accident.
It seems to me reasonably clear that New York is committed to applying the exception along broad lines to accord the defensive protection of estoppel of a former judgment to those whose liability must be founded, if at all, upon just the same issue as has been previously litigated. Cf., e.g., Romeo v. Western Express Co., Sup., 45 N.Y.S.2d 297; Heller v. Schwarz, 179 Misc. 911, 40 N.Y.S.2d 314; and Daly v. Terpening, 261 App. Div. 423, 26 N.Y.S.2d 160, affirmed 287 N.Y. 611, 39 N.E.2d 260. In general, see Patterson, J., in American Surety Co. of New York v. Singer Sewing Mach. Co., D.C.S.D.N.Y., 18 F. Supp. 750; Jones v. Zurich General Accident Liability Ins. Co., 2 Cir., 121 F.2d 761; Caterpillar Tractor Co. v. International Harvester Co., 3 Cir., 120 F.2d 82, 85, 139 A.L.R. 1, affirming on this point, D.C.N.J., 32 F. Supp. 304, 306, where Clark, J., quotes Jeremy Bentham that, if the mutuality rule itself "is a curious one, the reason given for it is still more so: — `Nobody can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary': a maxim which one would suppose to have found its way from the gaming-table to the bench."
But the defendant lost and is arguing not that its own due care to plaintiff, but plaintiff's lack of due care to it, has been proved. Cf. ABC Fireproof Warehouse Co. v. Atchison T. S. F. Ry. Co., 8 Cir., 122 F.2d 657 with Daly v. Terpening, 261 App. Div. 423, 26 N.Y.S.2d 160, 163; annotations in 101 A.L.R. 104 and 142 A.L.R. 727. The doctrine of res judicata admittedly precludes parties from demonstrating what is or may be the truth.
We have held on a number of occasions that issues determined by verdict or judgment in a prior action are conclusive only as to parties to such action and their privies, Halloran v. Knoph, 243 Minn. 120, 66 N.W.2d 551, and that, before estoppel against a party may arise under such circumstances, it must appear that such party appears in the second action in the same capacity that he appeared in the prior action. Schmitt v. Emery, 215 Minn. 288, 9 N.W.2d 777; Bamka v. Chicago, St. P. M. O. R. Co. 61 Minn. 549, 63 N.W. 1116; 10 Dunnell, Dig. (3 ed.) § 5178; see, also, Adamson v. Dougherty, 248 Minn. 535, 81 N.W.2d 110; Daly v. Terpening, 261 App. Div. 423, 26 N.Y.S.2d 160, affirmed, 287 N.Y. 611, 39 N.E.2d 260. The basis for the rule expressed is that any qualified person is authorized to act as trustee under § 573.02 and in such capacity represents not only the surviving spouse and next of kin but likewise those having demands for funeral expenses or for reimbursements for decedent's support.
The prior successful action by the passenger, Henry Dresher, cannot be used by the defendants here as a defense. The factors which are required for a successive action by a passenger in one car against the driver of another are not the same as those required by the driver of his car (see Daly v. Terpening, 261 App. Div. 423, 426-427, affd. 287 N.Y. 611). Therefore, the finding of negligence by the jury on the part of Mary Cummings in Henry's action cannot be asserted in this action by Bernard (Restatement, Judgments, §§ 96, 97; 7 Carmody-Wait, New York Practice, pp. 490-503).
John Carpenter's negligence would not be imputable to the corporate owner. ( Gochee v. Wagner, 257 N.Y. 344. See, also, Restatement, Judgments, § 96, Illustrations 4, 5; Daly v. Terpening, 261 App. Div. 423, affd. 287 N.Y. 611.) There is neither privity of parties nor identity of the subject matter and consequently, the prior judgments may not be asserted affirmatively by the plaintiff corporation in its first cause of action against the defendant Saeli. It follows that its subrogee, the plaintiff insurance company, may not do so either.
This rule was laid down by the Court of Appeals of this State in 1931 in the Glaser case, it was reiterated by that court in 1941 in the Daly case and it has been invoked and followed in several decisions of lower courts. ( Glaser v. Huctte, 232 App. Div. 119, affd. 256 N.Y. 686; Daly v. Terpening, 261 App. Div. 423, affd. 287 N.Y. 611; Friedman v. Salvati, 11 A.D.2d 104; Singer v. Banzer, 8 Misc.2d 3; Corey v. Central Taxi, 199 Misc. 403; Boyne v. Samac Motors, 22 Misc.2d 686.) It is noted that there are several recent decisions of courts of original jurisdiction which have reached the opposite conclusion on almost identical facts. ( Moyle v. Cronin, 18 Misc.2d 465; Light v. Quinn, 17 Misc.2d 1083; James v. Saul, 17 Misc.2d 371; Moran v. Lehman, 7 Misc.2d 994; Bennett v. Mitchell, 2 Misc.2d 116.)