Ordway v. Boston & M. R. R.

• Decision Date: 17 March 1899
• Citation: 45 A. 243,69 N.H. 429
• Parties: ORDWAY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

45 A. 243

69 N.H. 429

ORDWAY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

March 17, 1899.

Case reserved from Merrimack county.

Action by Bert A. Ordway against the Boston & Maine Railroad. Case reserved, and judgment for defendant.

Case for negligence. The defendants pleaded (1) the general issue, and (2) a former judgment rendered in a suit between the parties for the same cause of action. Replication to the second plea: That the former judgment was not rendered upon a trial on the merits involved in that suit, but was a judgment upon a nonsuit. Facts found at the trial term. The present suit is for the same cause of action as the suit between the same parties tried at the October term, 1896. At that trial the plaintiff presented his case to the jury, and submitted it. Thereupon, upon motion of the defendants, the court ordered a nonsuit, to which the plaintiff excepted. At the June law term, 1897, the plaintiff's exception was overruled. At the October term, 1897, judgment was entered for the defendants. The plaintiff's counsel did not move for a rehearing of the question reserved in that case, because they understood a judgment in that action upon the order of nonsuit was not a bar to the prosecution of another action for the same cause. They claim to have discovered, since the former trial, additional evidence, tending to show knowledge by the defendants of the dangerous character of the freight-car drawbar by which the injury was caused, and of the defendant's negligence in allowing the drawbar to continue in that condition; also, evidence tending to show that the plaintiff did not know, and by the exercise of reasonable care could not have known, of the defect in the drawbar, or of the danger attendant upon its use. The questions arising upon the foregoing pleadings and findings were reserved.

Sargent, Hollis & Niles, for plaintiff.

Frank S. Streeter and John M. Mitchell, for defendant.

BLODGETT, C. J. The question in this case is whether an Involuntary nonsuit, ordered by the court for the insufficiency of the plaintiff's evidence to authorize the jury to find a verdict in his favor, is a bar to a subsequent suit upon the same cause of action between the same parties. It is familiar law that a former judgment by a court of competent jurisdiction over the parties and subject-matter is, while outstanding, an absolute bar to a subsequent action for the same cause between the same parties or their privies, if such judgment is final, and rendered upon the merits. In other words, the cause of action becomes res judicata, the doctrine of which amounts simply to this: that an issue once determined by a court of competent jurisdiction may be interposed as an effectual bar to any further litigation of the same matter by parties and privies. In the present case it is not questioned that all the requisites necessary to support the defendants' plea of res judicata exist if the former judgment was rendered upon the merits. As a technical legal term, "merits" has been defined in law dictionaries as "matter of substance in law, as distinguished from matters of form" (Black; Burrill); and as "the real or substantial grounds of action or defense, in contradistinction to some technical or collateral matter raised in the course of the suit" (Anderson; Abbott). "A judgment is 'upon the merits' when it amounts to a declaration of the law as to the respective rights and duties of the parties, based upon the ultimate fact or state of facts disclosed by the pleadings and evidence, and upon which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions." 2 Black, Judgm. § 694. In view of the issue between the parties in the former suit, it is impossible to hold that the judgment therein was not upon the merits as a matter of fact. The nonsuit was ordered on the ground that the plaintiff's own evidence so conclusively showed that he knew of the danger which caused his injury that only one conclusion could honestly be drawn from the evidence by reasonable men, and that, with such knowledge, he assumed the risk of that danger as matter of law. Taking this to be so, it is self-evident that there is no tenable ground for claiming that "the real or substantial grounds of action or defense" were not passed upon, or that "the very cause of action" was not decided, "Irrespective of formal, technical, or dilatory objections or contentions" not involving the essential merits of the controversy. On the contrary, it is demonstrated to a mathematical certainty that, upon the most' favorable construction that could be put upon the uncontroverted facts by reasonable men, it was ruled that the plaintiff had no cause of action against the defendants, and that the subsequent judgment affirming the ruling was necessarily a judicial determination that upon these facts no cause of action had been established. Indeed, the truth of these propositions is so apparent and certain that it may safely be affirmed that, if that judgment was not, in point of fact, a judgment upon the merits, no judgment of this or any other court ever fulfilled that requirement.

But it is contended that it is a settled and inflexible rule of law that a judgment of nonsuit is not a judgment upon the merits, and therefore it is no bar to another suit upon the same cause of action. It must be conceded that such is the doctrine of the authorities. 1 Freem. Judgm. § 261; 2 Black, Judgm. § 699; '1 Van Fleet, Former Adj. 102, 193; 16 Am. & Eng. Enc. Law, 747; Homer v. Brown, 16 How. 354,14 L. Ed. 970; Insurance Co. v. Broughton, 109 U. S. 121, 124, 3 Sup. Ct. 99, 27 L. Ed. 878; Pendergrass v. Manufacturing Co., 76 Me. 509; Gummer v. Omro, 50 Wis. 247, 252, 6 N. W. 885; National Waterworks Co. v. School Dist. of Kansas City, 23 Mo. App. 227, 235; Wood v. Ramond, 42 Cal. 644. How the rule originated it may be impossible definitely to determine, but it seems likely to have had its origin in the failure to distinguish between voluntary and involuntary nonsuits, as to which there is nothing in common but their general name. At common law an involuntary nonsuit was unknown, and the power to order it does not even now exist in the mother country. Watkins v. Towers, 2 Term R. 275, 281; Proff. Jury, § 107; 2 Thomp. Trials, § 2227; 2 Broom & H. Comm. (Am. Ed.) 266; Grah. Prnc. 270. In the language of counsel: "The English nonsuit was purely voluntary. It was merely 'a judgment against the plaintiffs for not appearing on a day when they are demandable.' Paxton v. Popham, 10 East, 366, 308; Co. Litt. 138b; 3 Bl. Comm. 376. At the time of the American Revolution, however, a practice had grown up in the English courts, which, in its practical operation, was very similar to our peremptory order. When the plaintiff had introduced his evidence, if the court was of opinion that it was insufficient to sustain his case, it would inform him of that opinion, and advise him to become nonsuit. The court could not compel a nonsuit if the plaintiff insisted on his right to appear when called, and could only enforce its opinion through the medium of its charge to the jury (see, e. g. Macbeath v. Haldimand, 1 Term R. 172, 176); but, as the influence of the court was very great, and as the advice was practically an intimation that, even if a verdict should be returned in the plaintiff's favor it would probably be set aside, he usually consented to take a nonsuit, in order to save additional costs and preserve his right of action in case he should obtain new evidence later." See Proff. Jury, § 107, and 2 Thomp. Trials, § 2227, before cited. The English practice has been followed to some extent in this country. The question arose at an early period in the federal courts, and it was held that "a nonsuit may not be ordered by the court in any case without the consent and acquiescence of the plaintiff" (De Wolf v. Ramond, 1 Pet. 476, 7 L. Ed. 227; Elmore v. Grymes, 1 Pet. 469, 7 L. Ed. 224); and in Crane v. Morris, 6 Pet. 598, 8 L. Ed. 514, it was said that "the question is not now open to controversy." And such is the doctrine of subsequent decisions. Silsby v. Poote, 14 How. 218, 14 L. Ed. 394; Castle v. Bullard, 23 How. 172, 16 L. Ed. 424. The same practice was also adopted, and is still maintained, in some of the state courts. French v. Smith, 4 Vt. 363; Smith v. Crane, 12 Vt. 487; Kettlewill v. Peters, 23 Md. 312; Clark v. Railway Co., 36 Mo. 202; Williams v. Port, 9 Ind. 551; Winston v. Miller, 12 Smedes & M. 550; Hill v. Rucker, 14 Ark. 706; Morgan v. Bliss, 2 Mass. Ill; Mitchell v. Insurance Co., 6 Pick. 117. "In the majority of the United States, however, the granting of a nonsuit on motion of the defendant against the assent of the plaintiff is the recognized practice, either grown out of statutory reforms, or out of judicial decisions founded on reason and the advisability of some shorter method of objecting to the plaintiff's case made on the trial than by the cumbersome demurrer to evidence" (note to French v. Smith, 24 Am. Dec. 620); and this, it is believed, has always been the practice in New Hampshire. While in form and in theory the nonsuit taken under the advice of the court was a voluntary discontinuance, and hence not a bar to a new action, in its practical operation it was manifestly compulsory, and so the English practice came to be spoken of "as directing a nonsuit" (Sadler v. Robins, 1 Camp. 253; 1 Starkie, Ev. 440), and "nonsuiting the plaintiff" (1 Saund. 195d, note f; 1 Starkie, Ev. 439; French v. Smith, supra); the same as our peremptory order is now spoken of. In the light of these facts, "when," as is said by counsel, "we find that the present peremptory nonsuit was in use in several of the American states at an early period, without legislation, and without apparent consciousness that a legal novelty was being introduced, it seems clear that the new proceeding came into use through a misapprehension of the...