dissenting.
The basic issue presented for decision in this case is the question of how this court can properly reconcile two important considerations of public policy: (1) the need for a uniform and logical application of the rules of collateral estoppel, so as to prevent the needless relitigation of issues which have been previously tried and determined, with (2) the need to protect the interests of incompetent persons by the enforcement of a rule that will assure, insofar as is possible, the integrity of the fiduciary relationship between a guardian and his ward.
Defendant, in contending that the principles of collateral estoppel should be applied in this case, relies upon Restatement of Judgments § 84 (1942), among other authorities. Plaintiff, in contending that the public policy of protecting the interests of incompetent persons by assuring the integrity of the fiduciary relationship should be recognized to be of prevailing importance, relies upon Restatement of Judgments, supra, % 80(2), among other authorities.
The majority rejects the rule of Restatement of Judgments § 80(2) (1942), despite the fact that the rule as stated in § 80(2) is not only in accord with decisions by the majority of courts which have considered this question, but is also in accord with a previous decision of this court which the majority would overrule.
The majority would reject and apply the rule of collateral estoppel in this ease upon the grounds that plaintiff had control of Ms wife’s case; that he had the same incentive to win that case, and that there appeared under the facts of this case to be no possibility of diversity of interests. In my opiMon, these considerations do not provide proper or sufficient reasons to reject the rule as stated in § 80(2).
*438On the contrary, the importance, as a matter of public policy, of protecting the interests of incompetent persons and preserving the integrity of the fiduciary relationship between a guardian and his incompetent ward is so great, in my judgment, as to require the adoption of a rule that does not depend for its application upon a finding of actual abuse or actual conflict of interest under the facts of a particular case, but one which will protect the interests of all incompetent persons by removing temptations and possibilities of abuse by all guardians in the discharge of their fiduciary duty to protect the interest of those who are not competent to act for themselves.
The American Law Institute, in its Bestatement of Judgments § 80(2) (1942), has resolved the problem of balancing these interests by the adoption of such a rule, as follows:
“(2) Where a judgment is rendered for or against 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 fact 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.”①
Substantially, the same rule has been adopted not only by this, court in Crow v. Abraham, 86 Or 99, 108-09, 167 P 590 (1917), but also by the courts of most states in which this question has been considered, as set forth in Annot., 170 ALB 1180 (1947).
*439As recognized by the majority, the purpose of this rule is to safeguard the integrity of the actions of persons who are functioning in a representative capacity. Thus, the rationale for the rule is stated in Comment b to Í 80 of the Restatement as follows:
“* * * Whether or not a person having in charge the interests of another has a legally independent status, as in the case of an administrator, it is desirable that in conducting an action or defense he should have regard only for the interests of the beneficiary; he should not be hampered in this by being required to consider how his own interests or the interests of other beneficiaries might be affected in subsequent proceedings. * * *"②
This case is a good example of a difficult decision to be made by a guardian. That decision was one that should have been made uninfluenced by any consideration of his own interests. A guardian should feel free to follow the advice of competent counsel in his ward’s action without (because of collateral estoppel) relinquishing the right to be independent and follow a different theory in his own action later.
It may have been to the wife’s advantage to try her case first because the defense would not have prior notice of witnesses, strategy, exhibits, etc. But *440it could also have been to her advantage to try her case second when there would have been prior notice to her of defendant’s witnesses, strategy and exhibits. The fact that- in hindsight plaintiff’s attorney could not perceive any instance in which a choice made in the wife’s case was adverse to the husband’s case does not mean that some consideration of advantage or disadvantage did not influence any of the choices actually made.
Who is to say on which ground the guardian pursued his wife’s action first? Should the court rely on the assertions of the guardian’s attorney, who, no doubt, counseled the very action taken? The attorney’s clients were a guardian and a ward, both of whom had an interest in letting the other proceed first, but the ward could speak only through the guardian and his attorney. The decisions made by the guardian and his attorney were probably made with the purest of motives, i.e., winning her case. But rather than permit the attorney, whose only competent client is the guardian, to make the decision this court should retain the rule previously adopted in Crow v. Abraham, supra — a rule that will tend to induce a wholly objective decision by the guardian and his attorney.
In Brown v. Hilleary, 133 Or 26, 286 P 593 (1930), this court quoted (at 38) from 2 Pomeroy, Equity Jurisprudence § 961 (4th ed 1918) as follows:
“The equitable rules concerning dealings between guardian and ward are very stringent. The relation is so intimate, the dependence so complete, the influence so great, that any transactions between the two parties, or by the guardian alone, through which the guardian obtains a benefit, entered into while the relation exists, are in the highest degree suspicious; the presumption against them is so strong that it is hardly possible for them to be sustained. * *
*441As also stated by this court in Egr v. Egr., 170 Or 1, 33, 131 P2d 198 (1942):
“Wrongful influence is prompted by selfish motives and seeks to promote self-interest. It seeks to accomplish self-service under a pretense of unselfish devotion to the other’s welfare.”
In my judgment, the determination whether a guardian’s choices have been uninfluenced by personal consideration is an inquiry so difficult in its inherent nature that the court should adopt an objective rule which will preclude the availability of opportunities for “self-service under a pretense of unselfish devotion.” The best rule, in my opinion, to accomplish such a purpose is § 80(2) of the Restatement of Judgments and the rule previously adopted by this court in Crow v. Abraham, supra.
In addition to the foregoing reasons why this court should retain its. present rule and should not overrule Crow v. Abraham, supra, there is a further practical reason for doing so — if not a further consideration of public policy.
As pointed out by appellant on this appeal, the present law, both as written and practiced, has traditionally favored the appointment of family members as guardians of, or conservators for, minors and incapacitated persons.③ It is a fact of life that tragedies such as automobile accidents will continue to occur and that the services of guardians and conservators will be required. As a result of the majority decision *442in this case, no competent attorney in Oregon will permit the appointment of a parent or spouse of an injured or incapacitated person as guardian in the event of litigation arising from such an accident. Rather than have family members act as guardians and conservators, unrelated persons will be appointed.
Not only will this create economic and other hardships in many cases, but the appointment, of such unrelated persons will largely negate the goals of collateral estoppel, including the reduction of crowded dockets, because the same number of actions will still be filed and tried. Thus, the decision by the majority in this case will not only frustrate the declared policy of the legislature with respect to guardianships, but it will not substantially reduce the volume of litigation so as to malee effective the reasons for the rules of res judicata and collateral estoppel.
For all of these reasons, I most respectfully dissent.
The Restatement of Judgments 2d, Tentative Draft No. 2, would substantially maintain the same rule. Proposed § 80(2) is as follows:
“(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 Tentative Draft No. 2 of Restatement of Judgments 2d, n. 1, states the reason for the rule in slightly different terms in Comment a, as follows:
“* =s * The rule that a person appearing in litigation in one capacity is not, generally speaking, affected thereby in another legal capacity serves to safeguard the integrity of such representative functions. A person appearing on behalf of another is required to act with complete fidelity to the interests of the beneficiary, uninfluenced by consideration of his own interest or advantage. By the same token, in appearing as a representative of another a person should be free to take positions inconsistent with those he might assert in litigation on his own behalf or on behalf of others he represents in some other fiduciary capacity.”
Among other statutes, ORS 126.035 provides:
“* * * The parents of a minor, or either of them, if qualified and suitable, shall be preferred over all others for appointment as guardian for the minor.”
The same section further provides that with respect to the guardian of a minor or incapacitated person the court shall consider:
“* * * The relationship by blood or marriage of the proposed guardian to the proposed ward.”