
    Robert E. Hinchey, as Administrator of the Estate of John Venturini, Deceased, Respondent, v. Orville E. Sellers et al., Appellants. Regis J. Petell et al., as Administrators of the Estate of Douglass P. Petell, Deceased, Respondents, v. Orville E. Sellers et al., Appellants.
    Argued October 7, 1959;
    decided December 30, 1959.
    
      
      Sidney B. Coulter for appellants.
    I. The Appellate Division’s opinion improperly stated the problem here and as a result did not give proper effect to the doctrine of collateral estoppel. (Evergreens v. Commissioner of Internal Revenue, 141 F. 2d 927, 323 U. S. 720; Hyman v. Regenstein, 258 F. 2d 502.) II. The doctrine of collateral estoppel properly applies here to make the findings of fact in the New Hampshire action conclusive in these New York actions. (Partmar Corp. v. Paramount Cory., 347 U. S. 89; United States v. Silliman, 167 F. 2d 607, 335 U. S. 825; Israel v. Wood Dolson Co., 1 N Y 2d 116; Commissioners of State Ins. Fund. v. Low, 3 N Y 2d 590; King v. Chase. 15 N. H. 9; Montville v. Hamblin, 98 N. H. 356; Peoyle ex rel. McCanliss v. McCanliss, 255 N. Y. 456.) III. Under New Hampshire law, the ultimate facts as to permission determined in the first action would be conclusive in these second actions if they were in New Hampshire. (Morin v. Travelers Ins. Co., 85 N. H. 471; Emyloyers’ Liab. Assur. Corp. v. Tibbetts, 96 N. H. 296; Laconia Nat. Bank v. Lavallee, 99 N. H. 353.) IV. The doctrine of collateral estoppel, as applied in New York, makes the findings of the New Hampshire court conclusive here. (Parker v. Hoefer, 2 N Y 2d 612; Fox v. Employers’ Liab. Assur. Corp., 239 App. Div. 671, 243 App. Div. 325, 267 N. Y. 609; Israel v. Wood Dolson Co., 1 N Y 2d 116; Good Health Dairy Prods. Corp. v. Emery, 275 N. Y. 14; United Mut. Fire Ins. Co. v. Saeli, 272 App. Div. 951; Abrams v. Maryland Cas. Co., 278 App. Div. 951, 303 N. Y. 698; Thirty Pines v. Bersaw, 92 N. H. 69; Hosinger & Bode v. Eleven Franklin Place, 268 App. Div. 197, 294 N. Y. 790; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Statter v. Statter, 2 N Y 2d 668.) V. The New Hampshire findings cover all the facts concerning permission which could be again tried in the New York actions. (King v. Chase, 15 N. H. 9; Ripley v. Storer, 309 N. Y. 506.) VI. The facts, as already determined, establish as a matter of law that the use and operation of the car were not with Sellers’ permission within the meaning of the New York Vehicle and Traffic Law. (Psota v. Long Is. R. R. Co., 246 N. Y. 388; Arcara v. Moresse, 258 N. Y. 211; Billy v. Zajac, 7 A D 2d 729, 7 A D 2d 929.)
    
      Hilbert I. Greene for respondents.
    I. The New Hampshire court did not pass on the issues in these cases at bar. (Fox v. Employers’ Liab. Assur. Corp., 239 App. Div. 671, 243 App. Div. 325, 267 N. Y. 609.) II. Collateral estoppel does not apply to evidentiary facts in the case at bar. III. Plaintiffs should be heard on the merits of the case.
   Froessel, J.

Plaintiffs administrators brought two separate actions in the Supreme Court, Onondaga County, to recover damages for the wrongful deaths of their respective intestates, John Venturini and Douglass P. Petell. Petell and Venturini were passengers in an automobile driven by one Michael A. O’Rourke, a resident of New Hampshire, and were killed when the car went off the road near Sennett, New York, about 3:30 a.m. on the morning of September 7, 1951. It is conceded for purposes of this appeal that the car was jointly owned by defendants Orville E. Sellers, a resident of Pennsylvania, and his son, Donald E. Sellers, and neither defendant was in the car at the time of the accident. The father had given the car to his son to take with him to Sampson Air Force Base near Geneva, New York, where Donald was stationed as a member of the U. ¡3. Air Force. A public liability insurance policy covering the car had been issued in the State of Pennsylvania by National Surety Company, which policy contained the usual omnibus clause insuring, in addition to the named insured, any person using the automobile “ with his permission ”.

Prior to the commencement of the instant actions, the present plaintiffs had instituted actions against O’Rourke in New Hampshire, but the insurer refused to defend the actions on the ground that O’Rourke was not operating the car with the permission of the named insured. In accordance with New Hampshire procedure, plaintiffs then brought a declaratory judgment action against O’Rourke and National Surety Company, seeking a declaration that it was the duty of the insurer to defend the actions. After hearing testimony by defendant Donald Sellers and two other witnesses, and reading the deposition of O’Rourke, the New Hampshire Superior Court adopted elaborate formal findings of fact, setting forth the substance of the evidence and its conclusions therefrom in great detail. The court found that “ On the afternoon of September 6, 1951, Petell asked Donald Sellers if he could borrow his ear and upon Sellers inquiring who was going with him he informed him that O’Rourke was going, whereupon Sellers informed him he would not lend him the car if 0 ’Rourke was going with him in view of O’Rourke’s restriction. Some time later, Sellers and two other air force flight instructors, Philip B. Kennicutt and Robert M. Danek, were in the room of Kennicutt on the first floor of Barracks H43, where O’Rourke also had a room on the first floor and Sellers and Danek had a room on the second floor. The plaintiff decedent, John P. Venturini, came into the room bringing a note from Petell asking again for the loan of the car. Sellers refused the loan of the car again upon being told that O’Rourke was going with Petell. Shortly after that, Venturini returned again and informed Sellers that O’Rourke was not going but another man by the name of Tempo would accompany them in O’Rourke’s place. They had previously informed Sellers that they were going to the State Fair at Syracuse. Sellers gave the keys to Venturini to give to Petell thereby giving permission to Petell to take the car accompanied by Venturini and Tempo.” The court further found that O’Rourke, and not Tempo, accompanied Petell and Venturini in the Sellers automobile, and that at the time of the accident O’Rourke was driving the car.

After making its formal findings of fact, the Superior Court transferred the questions of law involved in the case to the Supreme Court of New Hampshire without ruling on them. In answer to the certified questions, the Supreme Court held, insofar as pertinent, that the question of coverage under the policy was governed by Pennsylvania and not New York law since the policy had been issued in Pennsylvania, and that the actual use of the automobile at the time of the accident was not with the insured’s permission “within the interpretation put upon that language by the laws of Pennsylvania ”. The ground for the latter holding was that “ The particular use to which the car was being put, insofar as it was being driven by 0 ’Rourke and used for his transportation, was neither actually nor impliedly within the limits of the permission granted by Sellers to Petell. Unlike the situation in Arcara v. Moresse, 258 N. Y. 211, where the thing forbidden related to the operation of the vehicle, the limitation upon the permission given in this case was that the car should not he used at all if O’Rourke was a passenger. ” (99 N. H. 378-379; emphasis supplied.)

A final judgment was accordingly granted, declaring that, since there was no permission within the meaning of the policy, the insurer was not obligated to defend the actions against O ’Rourke. The actions against 0 ’Rourke were then voluntarily discontinued. After the New Hampshire trial court made its findings of fact, plaintiffs commenced the instant actions in New York against Orville and Donald Sellers as co-owners of the automobile. The complaint in each action alleged that the automobile was being operated at the time of the accident “with the permission, express or implied”, of the defendants. The answer pleaded as an affirmative defense that the final judgment in the New Hampshire declaratory judgment action was a conclusive determination of the issue of permissive use, and a complete record of the New Hampshire proceedings was annexed to the answer. Defendants moved for summary judgment, and Special Term granted the motion on the ground “ that the judgments in New Hampshire are conclusive and bar recovery by plaintiffs in New York ”, Although the Appellate Division conceded'that “ In view of the relationship of indemnitor and indemnitee "between the insurance company and the defendants, the prior judgment in favor of the insurance company may be used defensively by the defendants (Israel v. Wood Dolson Co., 1 N Y 2d 116; Good Health Dairy Prods. Corp. v. Emery, 275 N. Y. 14) ” (5 A D 2d 446), it reversed on two grounds: (1) The issue of permission under the insurance policy — which was determined “asa matter of contract law in accordance with the intention of the parties to the contract under the law governing the contract ” — was different from the issue of permission under section 59 of the New York Vehicle and Traffic Law, which latter issue ‘ must be determined in accordance with the intent of the Legislature, taking into account the policy objectives which the Legislature sought to carry out (2) Under the law of New Hampshire, which was found to be the same as the law of New York, the doctrine of collateral estoppel ‘ ‘ is not applicable to evidentiary findings made in a prior action involving a different ultimate issue

While we agree with the Appellate Division that the ultimate legal issue involved in the instant case is not the same as the ultimate legal issue involved in the New Hampshire action, we disagree with its application of the collateral estoppel doctrine. It was found as the fact in the New Hampshire action that “ the limitation upon the permission given in this cage was that the car should not be used at all if O’Rourke was a passenger ”. This was not a fragmentary finding of an evidentiary fact, as the Appellate Division implied, but was a finding essential to the judgment, from which the resolution of the ultimate legal issue necessarily followed. It is perfectly clear from the record of the New Hampshire proceedings that the quoted factual finding was a necessary step in arriving at the final judgment, and, as Judge Learned Hand noted in Evergreens v. Nuna (141 F. 2d 927, 928, cert, denied 323 U. S. 720), “ It is of course well settled law that a fact, once decided in an earlier suit, is conclusively established between the parties [or their privies] in any later suit, provided it was necessary to the result in the first suit.” (See, also, People ex rel. McCanliss v. McCanliss, 255 N. Y. 456, 459-460.)

The resolution of the ultimate legal issue in the instant actions also necessarily follows from the quoted factual finding of the New Hampshire courts since, if the limitation upon the permission given was that the car should not be used at all if 0 ’Rourke was a passenger, there can be no recovery by plaintiffs under section 59 of the Vehicle and Traffic Law (Arcara v. Moresse, 258 N. Y. 211; Psota v. Long Is. R. R. Co., 246 N. Y. 388). In other words, in order to succeed in these actions, plaintiffs would have to prove that the scope of the permission granted included the presence of O’Rourke as a passenger. They had a full opportunity to prove ” that fact “ in a court of competent jurisdiction ”, and, since the court found otherwise, plaintiffs “ may not relitigate that issue ” (Israel v. Wood Dolson Co., 1 N Y 2d 116, 120). The operative facts relating to permission ” are exactly the same in these actions as they were in the New Hampshire action and, since plaintiffs had a full and complete opportunity to be heard on these facts in New Hampshire, they should not be permitted to relitigate them in New York simply because the legal issue of permission here appears in the context of a New York statute rather than in a Pennsylvania insurance policy. The doctrine of collateral estoppel ‘ ‘ is essentially a rule of justice and fairness ”, and the essence of the rule is ‘ ‘ that a question once tried out should not be relitigated between the same parties or their privies ” (Commissioners of State Ins. Fund v. Low, 3 N Y 2d 590, 595).

While the decision in Fox v. Employers’ Liab. Assur. Corp. (239 App. Div.,671) (the only one of three related cases involving the same subject matter which was not appealed to this court) seems to support the position adopted by the Appellate Division here, we feel that that case was wrongly decided. In the first Fox case (231 App. Div. 273, affd. 258 N. Y. 550), the situation was the reverse of that presented here, i.e., the first action was against the owner of the car under section 59 and the second action against the' insurance company under the policy. Plaintiffs recovered a judgment in the trial court against the City of Syracuse and one Green, a city employee, for injuries received •in the negligent operation of a city automobilé by Green. On appeal by the city, whose defense had been conducted by counsel for its insurance company, the judgment against it was reversed on the ground that Green was using the car for his own purposes at the time of the accident, and not on city business, and that the city, a municipal corporation, was legally incapable of consenting to the use of the ear for pleasure purposes so as to subject it to liability under section 59.

After an execution issued against Green was returned wholly unsatisfied, plaintiffs commenced an action against the city’s insurance company to recover under the policy, and the latter pleaded the prior judgment as res judicata. This defense was sustained by the trial court but overruled by the Appellate Division on the ground that the issue of ‘ ‘ permission ’ ’ under section 59 was not the same as the issue of “ permission ” under the policy. While we agree with this conclusion as to the non-identity of the ultimate legal issues, the Appellate Division erroneously noted: “ Nor was there privity or any other relationship there which estops plaintiffs here ” (239 App. Div., supra, p. 675).

On the subsequent trial of the action, plaintiffs recovered judgments against the company, but these were reversed on appeal on the ground that plaintiffs had failed to prove that Green was legally operating the car in the business of the city, with its express or implied consent — a prerequisite to recovery under the policy (243 App. Div. 325,-affd. 267 N. Y. 609).

In the instant case, the Appellate Division correctly held that by virtue of the indemnitor-indemnitee relationship existing between an insurer and an insured, defendant here (the insured) was in privity with the defendant in the New Hampshire action (the insurer) for purposes of the collateral estoppel doctrine. The Appellate Division erred in the Fox case in not according collateral estoppel effect to the finding that Green was using the car for purposes to which the city could not, in law, consent. The finding that the city employee was using the car for pleasure purposes at the time of the accident was essential to the judgment exonerating the city from liability under section 59 and, if the named insured was incapable of consenting to the use of the car for these purposes, the insurer could not be liable under the policy. We recognized this, in effect, in affirming the subsequent judgment for the insurance company, and hence we do not regard the Fox case as authority for denying collateral estoppel effect to the necessary factual finding made in the New Hampshire proceeding.

As to the conflict-of-laws question involved in this case, the Appellate Division, citing Johnson v. Muelberger (340 U. S. 581), held that the law of New Hampshire, rather than the laiv of New York, is controlling as to the effect to be given the evidentiary findings underlying the New Hampshire judgment ’ Since the issue of permission under the insurance policy, as determined under Pennsylvania law, is not the same as the issue of permission under section 59 of the Vehicle and Traffic Law, no adjudication by the courts of New York on the latter issue could impair the force of the New Hampshire judgment on thé former issue. Hence a choice of New Hampshire law would not appear to be mandated by the Pull Faith and Credit Clause of the Federal Constitution. It should also be noted that the accident occurred in New York, and since the liability of the insurer is, by force of our statute (Vehicle and Traffic Law, § 59), deemed coextensive with the liability of the insured owner to third persons for injuries caused by those operating the vehicle with the said insured’s permission, the ultimate liability of the insurer depends upon a construction of New York law.

In any event, the relevant New Hampshire cases seem to be in accord with the general rule that where an issue of fact essential to the judgment is actually litigated and determined by a valid final judgment, the determination is conclusive between the parties and their privies (King v. Chase, 15 N. H. 9; Laconia Nat. Bank v. Lavallee, 96 N. H. 353; see, also, Morin v. Travelers Ins. Co., 85 N. H. 471; Employers’ Liab. Assur. Corp. v. Tibbetts, 96 N. H. 296).

The orders appealed from should be reversed, and the judgments of Special Term reinstated, with costs. The question certified in each case should be answered in the affirmative.

Dye, J.

(dissenting). I find myself unablé to agree with the decision about to be made.

These actions for wrongful death grow out of an automobile accident which occurred in New York, allegedly due to the negligence of one O’Rourke in driving the automobile owned by defendants, neither of whom was in the car. The answers set forth the defense of collateral estoppel, inter alia, because of a final judgment rendered in New Hampshire.

Plaintiffs had brought suit in New Hampshire against O’Rourke and National Surety Corporation, the present defendants’ insurer, seeking a declaration (in accordance with that State’s procedure) that O’Rourke was driving the car with the owner’s permission and that the insurer was obligated to defend O’Rourke and stand responsible for any judgment obtained against Mm, on account of the public liability policy, containing the usual omnibus clause, which had been issued to the defendants in Pennsylvania. The New Hampshire court, in a hearing conducted for that purpose, held that under the controlling law there was no “ permission ” within the meaning of the policy, and thus the insurer was not required to defend the action.

The New Hampshire actions against O’Rourke were voluntarily discontinued, and the present actions subsequently were tried on the theory of imputed negligence, pursuant to section 59 of the Vehicle and Traffic Law. Thus, permission, express or implied ” is in issue here.

On the issue of permission, the testimony establishes that defendants are father and son, the former a resident of Johns-town, Pennsylvania, and the latter at the time in question a serviceman stationed at Sampson Air Force Base, Geneva, New York. The son had refused to lend his automobile to a fellow airman because O’Rourke, who was to ride in the car, was restricted to base, and the defendant son wanted nothing to do with a deliberate violation of restriction. After twice refusing to lend the car, he finally consented on the assurance that O’Rourke would be left behind. The accident occurred while the car was out on loan, and when O’Rourke, who was not left behind, was not only in the car but behind the wheel..

In these actions the defendant owners contend that the plaintiffs are concluded by the New Hampshire judgment on two main grounds — the first being that the issues in the two actions are the same, thus giving rise to collateral estoppel.

Although each action depends on “ permission, express or implied ”, the issues are not the same. In New Hampshire, the insurance company’s responsibility for any judgment obtained against O’Rourke, the driver, hinged on the issue of owner-consent within the meaning of the insurance contract, which was ascertained by resort to a reading of the contract in the light of Pennsylvania law. In New York, on the other hand, every owner of a motor vehicle operated upon a public highway is made liable by statute for injury to person or damage to property of another resulting from negligence in the operation of such motor vehicle in the business of the owner or otherwise by any person legally using or operating the same “ with the permission, express or implied, of such owner” (Vehicle and Traffic Law, § 59). Thus, in New York the meaning of permission ” imputing the driver’s negligence to the owner is a matter of legislative intent.

The doctrine of collateral estoppel then, in its traditional sense, has no application to this controversy, since it would not here serve the policy against relitigating’ issues already adjudicated (Jewtraw v. Hartford Acc. & Ind. Co., 2 N Y 2d 788; Fox v. Employers’ Liab. Assur. Corp., 239 App. Div. 671).

The second point to consider is the argument that, since the operative facts essential to decision in both actions are identical, the application of collateral estoppel is justified, owing to the increased probability that the issues here to be decided were conclusively determined by the first judgment.

The ultimate fact which had to be pleaded in New Hampshire was the existence of permission under the insurance contract. The ultimate fact which needs to be proved in the New York action is the existence of permission under section 59 of the Vehicle and Traffic Law. The two are not the same, for the one is determined by the parties ’ intent as manifested by the terms of the contract, while the other depends on legislative intention. The difference is apparent even though the results in both actions might be the same because neither kind of permission may have been given.

In short, the New Hampshire courts did not find as a fact that O’Rourke was driving without the sort of permission which, if found, would have rendered the owner liable under section 59.

Appellants thus ask us to give res judicata effect to the evidentiary findings made in the prior action, by accepting the facts found as binding on us and then applying different legal principles to them to determine that the fact of permission under section 59 has been concluded. But to fashion a rule that requires us to examine a set of operative facts from which the ultimate fact has already been drawn by a legitimate trier of the facts, and then attempt to determine whether or not as a matter of law another ultimate fact ought to be drawn from those facts, is to sacrifice our notion of fact-determination for an uncertain rule of unpredictable application.

Nor am I able to find that the two kinds of permission herein involved enjoy the same legal meaning because of the public policy underlying their use, there being no basis for saying that our concept of owner-liability under section 59 equates with another State’s concept of insurer-liability under the standard omnibus clause.

Since the law of New Hampshire is in agreement with my view of the limits of the collateral estoppel doctrine (King v. Chase, 15 N. H. 9; Laconia Nat. Bank v. Lavallee, 96 N. H. 353) the conflict-of-laws point does not give me concern.

For these reasons I vote to affirm the orders of the Appellate Division, with costs, and to answer the questions certified in the negative.

Chief Judge Conway and Judges Desmond, Fuld, Van Voorhis and Burke concur with Judge Froessel; Judge Dye dissents in an opinion.

In each action: Order of the Appellate Division reversed, with costs in this court and in the Appellate Division, and the judgment of Special Term reinstated. Question certified answered in the affirmative.  