Mason v. Parker

                               NO. 5-97-0476

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

MARLON MASON,                      )  Appeal from the
                                   )  Circuit Court of
     Plaintiff-Appellee,           )  Madison County.
                                   )
v.                                 )  No. 96-L-688
                                   )
WILLIAM PARKER,                    )  Honorable
                                   )  Phillip J. Kardis,
     Defendant-Appellant.          )  Judge, presiding.
_________________________________________________________________

     JUSTICE MAAG delivered the opinion of the court:
     This is an interlocutory appeal from an order of the trial
court denying the defendant's motion to dismiss.
     The facts are as follows.  Marlon Mason and William Parker
were involved in a motor vehicle accident on January 2, 1996, in
Madison County.  Mason claims that Parker failed to keep his
vehicle within its proper lane of traffic, resulting in property
damage to Mason's vehicle and personal injury to Mason.  
     On February 5, 1996, Mason filed an action against Parker in
St. Clair County, where Parker resides, seeking a judgment for
property damage only.  On September 26, 1996, judgment for property
damage was awarded to Mason.  On October 23, 1996, Mason filed a
lawsuit against Parker in Madison County for personal injuries
arising out of the January 2, 1996, motor vehicle accident.  On
November 26, 1996, Parker filed a motion to dismiss the Madison
County action on the ground that it was barred by res judicata.  On
March 20, 1997, the trial court, relying on Clancey v. McBride, 338 Ill. 35, 169 N.E. 729 (1929), denied Parker's motion to dismiss. 
Parker filed a motion for interlocutory appeal by permission, which
was granted.
     The issue certified for review raises the question whether
Illinois law permits a claim to be split into separate actions for
personal injury and property damage.
     The doctrine of res judicata provides that a final judgment on
the merits rendered by a court of competent jurisdiction bars any
subsequent actions between the same parties or their privies on the
same cause of action.  Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334, 665 N.E.2d 1199, 1204 (1996).  This doctrine extends not
only to the issues actually decided in the original action but also
to those which could have been decided.  Rein, 172 Ill. 2d at 334-
35, 665 N.E.2d  at 1204.  A cause of action is defined by the facts
that give a plaintiff a right to relief.  Rein, 172 Ill. 2d  at 338,
665 N.E.2d  at 1206.
     In the present case, the facts which gave Mason a right to
relief are that he and Parker were operating motor vehicles on
January 2, 1996, in Madison County and that they were involved in
a collision.  This was the set of facts alleged both in the
complaint filed in February of 1996 in St. Clair County and the
complaint filed in October of 1996 in Madison County.  The two
complaints vary only as to the damage done and the recovery sought.
     There are three elements necessary to invoke the doctrine of
res judicata:  (1) a final judgment on the merits rendered by a
court of competent jurisdiction, (2) an identity of the cause of
action, and (3) an identity of the parties or their privies.  Rein,
172 Ill. 2d  at 335, 665 N.E.2d  at 1204, citing Downing v. Chicago
Transit Authority, 162 Ill. 2d 70, 73-74, 642 N.E.2d 456 (1994). 
"If the three elements necessary to invoke res judicata are
present, res judicata will bar not only every matter that was
actually determined in the first suit, but also every matter that
might have been raised and determined in that suit."  Rein, 172 Ill. 2d  at 338, 665 N.E.2d  at 1205-06, citing Torcasso v. Standard
Outdoor Sales, Inc., 157 Ill. 2d 484, 490, 626 N.E.2d 225 (1993).
     The St. Clair County circuit court was a court of competent
jurisdiction, capable of rendering a final judgment on the merits
in the original lawsuit filed by Mason.  Both the parties and the
cause of action were the same.  Therefore, all three elements
required for res judicata to apply are present.  It is of no
consequence that Mason did not seek to recover his personal injury
damages in the first action.  As stated above, res judicata will
bar every matter that could have been raised and determined in the
first lawsuit.
     Mason and the trial court rely on a 1929 Illinois Supreme
Court case to support Mason's position that he is allowed to file
separate actions for property damage and personal injury.  See
Clancey v. McBride, 338 Ill. 35, 169 N.E. 729 (1929).  Mason
asserts that property damage can be quickly ascertained in most
cases, but additional time is needed to discover the full magnitude
of personal injuries suffered in an accident.  He further asserts
that to require both actions to be brought together for the sake of
judicial economy sacrifices the rights of the plaintiff.  We
disagree.
     "[A]n entire claim arising from a single tort cannot be
divided and be the subject of several actions regardless of whether
or not the party suing has recovered all he might have recovered. 
This is true even as to prospective damages, as *** there cannot be
successive actions brought for a single tort as damages in the
future are suffered[,] but the one action must embrace prospective
as well as accrued damages."  Radosta v. Chrysler Corp., 110 Ill.
App. 3d 1066, 1068-69, 443 N.E.2d 670, 672 (1982), citing Melohn v.
Ganley, 344 Ill. App. 316, 100 N.E.2d 780 (1951); see Lake E. & W.
Ry. Co. v. Purcell, 75 Ill. App. 573 (1898).  In Clancey, the case
relied on by Mason, the court held that a judgment for property
damage does not bar a later suit for personal injury.  Clancey, 338 Ill.  at 40, 169 N.E.2d  at 731.  Although not expressly overruled by
the Illinois Supreme Court, Clancey has been overruled by
implication.  See Rein v. David A. Noyes & Co., 172 Ill. 2d 325,
665 N.E.2d 1199 (1996); Torcasso v. Standard Outdoor Sales, 157 Ill. 2d 484, 626 N.E.2d 225 (1993).  To recognize the holding in
Clancey would be to allow claim-splitting, leaving the courtroom
doors open to a possibility of never-ending legal battles between
the same parties based upon the same set of facts.  Litigation
should have an end.  No person should be harassed with a
multiplicity of lawsuits arising out of one cause of action. 
Radosta v. Chrysler Motors Corp., 110 Ill. App. 3d 1066, 1069, 443 N.E.2d 670, 672 (1982).
     For the foregoing reasons, the order of the circuit court of
Madison County denying Parker's motion to dismiss is reversed, and
pursuant to our authority under Supreme Court Rule 366(a)(5) (155
Ill. 2d R. 366(a)(5)), the motion to dismiss is allowed.  This
cause is dismissed with prejudice.

     Judgment reversed; cause dismissed.

     WELCH, P.J., concurs.

     JUSTICE CHAPMAN, dissenting:
     Although I agree that the doctrine of res judicata is alive
and well in Illinois (see Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 665 N.E.2d 1199 (1996)), the majority errs in incidentally
dismissing this case as one involving an identity of causes of
action.  Clancey v. McBride, 338 Ill. 35, 169 N.E. 729 (1929), is
still the law, and the majority errs in concluding that Rein
overruled Clancey by implication.  
     Rein dealt with alleged fraudulent misrepresentation in the
sale of securities.  The Rein court was concerned with the res
judicata effect of allowing a recession claim to proceed even
though common-law fraud, breach of fiduciary duty, and failure to
register securities counts had been dismissed.  Given the facts
there, it was easy to determine that there was:  (1) a final
judgment on the merits, (2) an identity of parties, and (3) an
identity of the cause of action.  In the case at bar, an auto
accident case where both personal injuries and property damages
were sustained, the supreme court has held that there is not an
identity of the cause of action.  
     As explained in Clancey:
     "If two persons are injured by the same tortious act, two
     grievances result and two actions are maintainable.  Likewise,
     if the same negligent act causes injury to a person and damage
     to the property of another in his custody, two causes of
     action arise--one in favor of the person injured and the other
     to the owner of the damaged property.  On the other hand, if
     a horse and vehicle owned by the same person are damaged by
     the wrongful act of another, the owner will have a single
     cause of action for the damage to both.  If, however, as the
     result of such an act, the owner is injured and his vehicle is
     damaged, two separate and distinct wrongs are inflicted upon
     him for two of his rights, first, the right to the
     uninterrupted enjoyment of his body and limbs, and second, the
     right to have his property kept free from damage, are invaded. 
     While both wrongs result from a single tortious act, yet the
     consequences of that act, it seems, give rise to a distinct
     cause of action for the vindication of each of the violated
     rights."  Clancey, 338 Ill.  at 38-39, 169 N.E.  at 730.  
     Clancey has been followed by several appellate court cases. 
See Stephen v. Yellow Cab Co., 30 Ill. App. 3d 996, 333 N.E.2d 223
(1975); Saunders v. Schultz, 22 Ill. App. 2d 402, 161 N.E.2d 129
(1959), aff'd on other grounds, 20 Ill. 2d 301, 170 N.E.2d 163
(1960).  I do not agree that Rein overrules Clancey.  We should
allow the supreme court to address this issue.  Given the supreme
court's holding in Clancey, I would affirm the trial court in this
case.