HOLMAN, J.
Plaintiff brought an action for personal injuries resulting from a collision between a motor vehicle he was operating and a vehicle operated by a third party, Purdy, who is not now a party to this proceeding. Plaintiff claims defendants’ negligence caused the vehicle operated by Purdy to go out of control. Plaintiff also brought an action against the same defendants for his loss of consortium resulting from injuries to his wife in the same accident. The cases [432]*432were consolidated for trial and appeal. Judgment was entered for the defendants in each case upon the basis that plaintiff was collaterally estopped from litigating the issues of defendants’ negligence. Plaintiff appeals.
Plaintiff’s wife was incapacitated by her injuries. Plaintiff was appointed her guardian and, as, such, instituted a previous action against these same defendants and others to recover for her injuries and approximately $37,000 in medical bills. That action resulted in a verdict and judgment in favor of plaintiff’s wife against Purdy and in favor of all other defendants including the present defendants. These proceedings were affirmed upon appeal. Jones v. Mitchell Bros., 266 Or 513, 511 P2d 347, 514 P2d 350 (1973).
Because of the judgment entered against Purdy and in favor of the present defendants, it is apparent that in the action of plaintiff’s wife the jury found that she suffered injuries as a result of the accident but that the defendants were absolved from liability therefor either because they were not negligent or because, any negligence of which they may have been guilty was not a cause of the accident. The trial court in the instant case held that these determinations precluded plaintiff from contending that defendants were guilty of negligence which caused plaintiff’s injuries and damages.
Although plaintiff was a party to the prior suit, he contends he cannot be precluded from relitigating the issue of defendants’ negligence because he prosecuted his wife’s action in a representative capacity as her guardian, whereas he brought the present suit in his individual capacity to enforce his personal rights. He relies on Restatement of the Law of Judgments § 80(2), which provides:
“(2) Where a judgment is rendered for or [433]*433against a person who is a party to the action solely in a representative capacity or who is otherwise acting solely for the benefit of another, of which the other party to the action has notice, the rules of res judicata do not apply in a subsequent action in which he is a party and is acting solely on his own account, except where he takes a position in the subsequent action inconsistent with that which he took in the first action.”
The American Law Institute is in the process of compiling Restatement (Second) of the Law of Judgments to reflect changes in the law since the promulgation of the original Restatement. Section 80(2) of Tentative Draft No. 2, Restatement (Second) of the Law of Judgments (April 1975), substantially retains the rule of the original Section 80(2). It states at 16:
“(2) A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.”
The purpose of Section 80 is to safeguard the integrity of the actions of persons who are functioning in a representative capacity. In conducting an action or defense a representative should have regard only for the interests of the beneficiary and should not be hampered by being required to consider how his own interests might be affected in subsequent proceedings.②
[434]*434Plaintiff’s position comes within the literal terms of the provisions of Section 80(2) because he was serving in a representative capacity. For cases setting forth substantially the same rule, see Crow v. Abraham, 86 Or 99, 108-09, 167 P 590 (1917), and cases annotated under the heading, Judgment for or against person in fiduciary capacity as res judicata for or against him in his individual or a different fiduciary capacity, or vice versa, 170 ALE 1180 (1947). However, the rationale for the rule would seem to have no application to the present factual situation.
An examination of both the wife’s and the husband’s case discloses that the allegations of negligence in each are substantially identical and that plaintiff’s personal interests are not adverse in any respect to those of his wife’s. The trial judge, who was well aware of its significance, had the following colloquy with plaintiff’s attorney:
“THE COUET: Well, assiuning that may be so as a general proposition, is there any instance in this case where there’s a suggestion that the decision was made for the benefit of his wife’s claim and would be adverse in any way to his own claim?
“ME. JOHNSON: No. Other than the fact that he would presumably follow the attorney’s advice that he hired. * *
We find it difficult to conceive of reasons why plaintiff should not be estopped in accordance with generally accepted principles of collateral estoppel, though Section 80 of both the Eestatement and the Tentative Draft seem to prohibit it. In both the plaintiff’s case and his wife’s case it was necessary to prove that defendants were negligent and their negligence caused the accident in which plaintiff and his wife claimed to have been injured. If the wife’s action were tried first, as was the case, and the wife recovered, [435]*435plaintiff conld preclude defendants from litigating the issues of defendants’ negligence as a cause of the accident because those issues had already been decided against them in the wife’s case. Bahler v. Fletcher, 257 Or 1, 474 P2d 329 (1970). This benefit to plaintiff would force plaintiff to use every effort to win and thus alleviate any chance that he would make any choices which would be inimical to the wife’s interests. In addition, plaintiff, as guardian, has complete control of his incompetent wife’s case. With complete control in plaintiff, and with the benefit to him of the application of estoppel to defendants if the wife’s ease is won, there is no reason to fear he will not use his best efforts to win his wife’s ease, and therefore no reason for the application of the rule of Section 80 of the Restatement.
On the other hand, in case the wife’s action were lost on the basis of either negligence or causation, and if estoppel were applied to plaintiff and he thus would be precluded, plaintiff would have additional reason for taking every means to win his wife’s case because he suffers a detriment if he loses. Thus, it would appear that the application of estoppel to plaintiff will safeguard the wife’s position rather than place her in a situation of vulnerability, and the application of the rule of Section 80 is made even more inappropriate in view of this factor.
If the plaintiff’s own case is tried first, his wife has. no control of his case, and estoppel by judgment has no application to her.
Plaintiff had every reason and every opportunity to establish defendants’ negligence as a cause of the accident in his wife’s case. She was not subject to be defeated by the issue of contributory negligence as was he because she was a passenger in and not the operator of the vehicle in which she was riding.
Free access — add to your briefcase to read the full text and ask questions with AI
HOLMAN, J.
Plaintiff brought an action for personal injuries resulting from a collision between a motor vehicle he was operating and a vehicle operated by a third party, Purdy, who is not now a party to this proceeding. Plaintiff claims defendants’ negligence caused the vehicle operated by Purdy to go out of control. Plaintiff also brought an action against the same defendants for his loss of consortium resulting from injuries to his wife in the same accident. The cases [432]*432were consolidated for trial and appeal. Judgment was entered for the defendants in each case upon the basis that plaintiff was collaterally estopped from litigating the issues of defendants’ negligence. Plaintiff appeals.
Plaintiff’s wife was incapacitated by her injuries. Plaintiff was appointed her guardian and, as, such, instituted a previous action against these same defendants and others to recover for her injuries and approximately $37,000 in medical bills. That action resulted in a verdict and judgment in favor of plaintiff’s wife against Purdy and in favor of all other defendants including the present defendants. These proceedings were affirmed upon appeal. Jones v. Mitchell Bros., 266 Or 513, 511 P2d 347, 514 P2d 350 (1973).
Because of the judgment entered against Purdy and in favor of the present defendants, it is apparent that in the action of plaintiff’s wife the jury found that she suffered injuries as a result of the accident but that the defendants were absolved from liability therefor either because they were not negligent or because, any negligence of which they may have been guilty was not a cause of the accident. The trial court in the instant case held that these determinations precluded plaintiff from contending that defendants were guilty of negligence which caused plaintiff’s injuries and damages.
Although plaintiff was a party to the prior suit, he contends he cannot be precluded from relitigating the issue of defendants’ negligence because he prosecuted his wife’s action in a representative capacity as her guardian, whereas he brought the present suit in his individual capacity to enforce his personal rights. He relies on Restatement of the Law of Judgments § 80(2), which provides:
“(2) Where a judgment is rendered for or [433]*433against a person who is a party to the action solely in a representative capacity or who is otherwise acting solely for the benefit of another, of which the other party to the action has notice, the rules of res judicata do not apply in a subsequent action in which he is a party and is acting solely on his own account, except where he takes a position in the subsequent action inconsistent with that which he took in the first action.”
The American Law Institute is in the process of compiling Restatement (Second) of the Law of Judgments to reflect changes in the law since the promulgation of the original Restatement. Section 80(2) of Tentative Draft No. 2, Restatement (Second) of the Law of Judgments (April 1975), substantially retains the rule of the original Section 80(2). It states at 16:
“(2) A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.”
The purpose of Section 80 is to safeguard the integrity of the actions of persons who are functioning in a representative capacity. In conducting an action or defense a representative should have regard only for the interests of the beneficiary and should not be hampered by being required to consider how his own interests might be affected in subsequent proceedings.②
[434]*434Plaintiff’s position comes within the literal terms of the provisions of Section 80(2) because he was serving in a representative capacity. For cases setting forth substantially the same rule, see Crow v. Abraham, 86 Or 99, 108-09, 167 P 590 (1917), and cases annotated under the heading, Judgment for or against person in fiduciary capacity as res judicata for or against him in his individual or a different fiduciary capacity, or vice versa, 170 ALE 1180 (1947). However, the rationale for the rule would seem to have no application to the present factual situation.
An examination of both the wife’s and the husband’s case discloses that the allegations of negligence in each are substantially identical and that plaintiff’s personal interests are not adverse in any respect to those of his wife’s. The trial judge, who was well aware of its significance, had the following colloquy with plaintiff’s attorney:
“THE COUET: Well, assiuning that may be so as a general proposition, is there any instance in this case where there’s a suggestion that the decision was made for the benefit of his wife’s claim and would be adverse in any way to his own claim?
“ME. JOHNSON: No. Other than the fact that he would presumably follow the attorney’s advice that he hired. * *
We find it difficult to conceive of reasons why plaintiff should not be estopped in accordance with generally accepted principles of collateral estoppel, though Section 80 of both the Eestatement and the Tentative Draft seem to prohibit it. In both the plaintiff’s case and his wife’s case it was necessary to prove that defendants were negligent and their negligence caused the accident in which plaintiff and his wife claimed to have been injured. If the wife’s action were tried first, as was the case, and the wife recovered, [435]*435plaintiff conld preclude defendants from litigating the issues of defendants’ negligence as a cause of the accident because those issues had already been decided against them in the wife’s case. Bahler v. Fletcher, 257 Or 1, 474 P2d 329 (1970). This benefit to plaintiff would force plaintiff to use every effort to win and thus alleviate any chance that he would make any choices which would be inimical to the wife’s interests. In addition, plaintiff, as guardian, has complete control of his incompetent wife’s case. With complete control in plaintiff, and with the benefit to him of the application of estoppel to defendants if the wife’s ease is won, there is no reason to fear he will not use his best efforts to win his wife’s ease, and therefore no reason for the application of the rule of Section 80 of the Restatement.
On the other hand, in case the wife’s action were lost on the basis of either negligence or causation, and if estoppel were applied to plaintiff and he thus would be precluded, plaintiff would have additional reason for taking every means to win his wife’s case because he suffers a detriment if he loses. Thus, it would appear that the application of estoppel to plaintiff will safeguard the wife’s position rather than place her in a situation of vulnerability, and the application of the rule of Section 80 is made even more inappropriate in view of this factor.
If the plaintiff’s own case is tried first, his wife has. no control of his case, and estoppel by judgment has no application to her.
Plaintiff had every reason and every opportunity to establish defendants’ negligence as a cause of the accident in his wife’s case. She was not subject to be defeated by the issue of contributory negligence as was he because she was a passenger in and not the operator of the vehicle in which she was riding. She was an object of pity in that she was rendered an in[436]*436competent as a result of the accident. Recognizing that Section 80 is for the representative’s protection as well as his ward’s, plaintiff, when given the opportunity, could point to no diversity of interest between his case and that of his wife’s which was adverse to the subsequent prosecution of his claim. He had a completely fair opportunity to establish the issues which were necessary to the favorable conclusion of both eases. Every reason for the application of estoppel exists with no risk to either his wife’s case or his own.③
Plaintiff contends that the policy expressed in ORS 126.035 prohibits his being collaterally estopped. This statute favors the appointment as guardian of close relatives by marriage or by blood. He argues that if collateral estoppel is a potentiality in a situation like the present, no relative could ever take the chance of acting as guardian because by so acting he might prejudice his own case and, thus, the objective of the statute would be defeated. The policy expressed in the statute is merely one of the considerations of which cognizance must be taken in determining whether preclusion should be applied to the facts of this ease. Where the guardian has a personal interest and the incentive to litigate fully, where the interests of the ward and the guardian are not divergent m any respect, and where control by the guardian is complete, all resulting in a full and fair opportunity to litigate the issues, we believe the public’s interest in judicial economy and the other bases for issue preclusion should predominate.
The judgments of the trial court are affirmed.
The phrase “bound by and entitled to the benefits of the rules of res judicata” refers to the rules of issue preclusion as well as to the rules of claim preclusion. Comment a., § 78, Tentative Draft No. 2, Restatement (Second) of the Law of Judgments.