Kimbrough

Thelma Kimbrough brought suit against Routh Trucking Company for damages for the death of her husband, Isom Kimbrough, who lost his life when a truck he was driving for J&S Disposal Company collided with a truck and trailer of defendant Routh. Harold Kimbrough, an adult son, was a plaintiff, but went out on a nonsuit.

In the present action Guarantee Insurance Company filed a complaint in intervention alleging it was the compensation insurance carrier for J&S, was liable for a death benefit in favor of the family of Kimbrough in the sum of $15,400 upon its policy of insurance, and seeking judgment against Routh in that amount. The case was tried to a jury; by verdict and judgment Guarantee was awarded $12,400 and Mrs. Kimbrough had judgment for $6,750; no appeal was taken from Mrs. Kimbrough’s portion of the judgment, but Routh appeals from the portion in favor of Guarantee. It is not questioned that the evidence was sufficient to prove that the negligence of Routh was a proximate cause of the accident.

As a special defense to the complaint in intervention Routh pleaded as res judicata a judgment of the superior court in an action brought by J&S Disposal against Routh to recover…