I am able to concur in the result in this case because I do not consider the judgment appealed from precludes the parties from trying the issue of whether Lorna Jenkins Boode was acting in the capacity of an employee of Jack Wolfe at the time of the accident, in any action or proceeding against Allied Mutual Insurance Company.
I think the general rule is as stated in 50 C.J.S. Judgments § 732, p. 223, to the effect that if a court assumes to pass judgment on a point or question not submitted to its decision by the parties, in their pleadings, or drawn into controversy by the course of the evidence, the judgment to that extent is not conclusive in a subsequent proceeding.
Appellant states the issues below were:
"(1) Was Mrs. Boode a guest in the automobile driven by Jack Wolfe at the time the wreck occurred which allegedly caused injuries to her?
"(2) If she was not a guest, was Mrs. Boode injured by reason of the ordinary negligence of Wolfe?
"(3) If she was injured, what was the amount of her damages?"
The complaint would seem to justify appellant's statement with respect to the issues below, since it was alleged only that she sustained injuries as a result of Wolfe's negligence while she was being transported by him "as a passenger for compensation and on a joint enterprise." The answer raises no further issue, and no pretrial order delineating issues appears in the record.
Appellant asserts the finding complained of was outside of the issue in the case regarding liability, which was only whether the plaintiff was a guest in Wolfe's car at the time she was injured. If that be in fact true, then the finding could not preclude an action or proceeding against the insurance company.
It is interesting to note from the record that the insurance company brought a separate action for a declaratory judgment to obtain a ruling to the effect that it did not need to defend Wolfe, and that it had no liability under its policy. Although there was a full trial, I fail to find judgment in that case. The appellant states that the court ruled against the insurance company in the declaratory judgment case. Also, the court first tried the question of Wolfe's liability and made its findings. Based on these findings, lawyers for the insurance company asked to be permitted to withdraw. Wolfe filed objections, and no determination of that matter was made by the court.
The insurance company was not a party to the action between Mrs. Boode and Wolfe. This is a further reason for saying the findings of fact and conclusions of law made in the action between Boode and Wolfe would not be res judicata or conclusive in any action or proceeding against the insurance company.
From a practical standpoint, it is understandable that parties, in the trial already had, were interested only in whether Mrs. Boode was or was not a guest. Perhaps they did not introduce all the evidence they might have introduced with respect to employment at the time, if they had known by what process of reasoning the judge was going to arrive at his conclusion that Mrs. Boode was not a guest. I doubt that this process of reasoning is conclusive or binding on any of the parties because it was not an issue, and especially it could not bind either of the parties in an action against the insurance company. *Page 335