Antoinette Poulin v. Fred Graham

• Decision Date: 13 November 1929
• Citation: 147 A. 698,102 Vt. 307
• Parties: ANTOINETTE POULIN v. FRED GRAHAM
• Court: Vermont Supreme Court

147 A. 698

102 Vt. 307

ANTOINETTE POULIN v. FRED GRAHAM

Supreme Court of Vermont

November 13, 1929

October Term, 1929.

Fact Treated as Established by Parties at Trial---Construction of Record on Defendant's Motion for Directed Verdict---Master and Servant---Right of One Injured by Servant's Negligence To Proceed against Master---Right of Action by Married Woman Injured by Husband's Negligence While Latter in Business of Employer.

1. In

ACTION OF TORT for negligence, where plaintiff was injured while riding in defendant's truck with his consent and as guest of driver thereof, who was then in employ of defendant and acting within his employment, relationship between driver and plaintiff as husband and wife at such time held established in that transcript plainly showed that throughout trial everybody connected with it understood that such relation existed at time mentioned.

2. On defendant's motion for directed verdict in his favor, while Supreme Court is required to construe record against defendant, record must also be construed reasonably.

3. Right of one injured by servant's negligence to proceed against master under doctrine of respondeat superior is in no sense subordinate or secondary to right against servant, but is primary and independent, and is not affected by plaintiff's inability to sue servant nor dependent on right of master to sue him.

4. Married woman, injured by negligence of husband in operation of truck belonging to employer and in employer's business, in which she was riding as guest with latter's consent, held to have right of action, against husband's employer, even though she could not sue her husband therefor.

ACTION OF TORT for negligence. Plea, general issue. Trial by jury at the June Term, 1929, Addison County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

J. A. McNamara for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

POWERS

The plaintiff was injured while riding with her husband in a truck which he was driving for the defendant who employed him. The negligence of the husband, the fact that he was acting within his employment at the time, that the plaintiff was riding by permission of the defendant, and was free from contributory negligence, were established by a verdict in her favor. By a motion for a verdict seasonably filed, the defendant questioned the right of the plaintiff to recover in an action predicated upon the personal negligence of her husband, though he was then acting as the defendant's servant. This motion was overruled and the defendant excepted.

The plaintiff argues that there is nothing in the record to show that the Poulins were husband and wife at the time of the accident. We take no time with this claim as the transcript plainly shows that throughout the trial everybody connected with it understood that that relation existed at the time mentioned; and while we are to construe this record against the defendant, Higgins, Admr. v. Metzger, 101 Vt. 285, 298, 143 A. 394, we must construe it reasonably, Hanley v. Poultney, 100 Vt. 172, 174, 135 A. 713, 54 A.L.R. 371. It would be doing violence to its plain meaning to sustain this claim of the plaintiff.

In support of the exception to the ruling on his motion for a verdict, the defendant insists that a wife cannot sue her husband in a tort action for negligence, and that it logically follows that she cannot sue his employer for her husband's negligence, since the employer would have an action over against the husband, and thus the allowance of an action like this one would be, in effect, an indirect action by her against her husband.

This claim of the defendant finds support in Maine v. Maine & Sons Co., 198 Iowa 1278, 201 N.W. 20, 37 A.L.R. 161; Riser v. Riser, 240 Mich. 402, 215 N.W. 290; and Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297, 56 A.L.R. 327. However, we are unwilling to adopt the rule contended for.

For the purposes of this review, we will assume that a wife cannot sue her husband for negligence, as the cases cited and others, hold. But we cannot admit that her right to sue her husband's master is, for that reason, foreclosed. It is true, as argued, that a master may recover from an offending servant such damages as he is compelled to pay on account of the latter's negligence. But the doctrine of respondeat superior is not affected by the plaintiff's inability to sue the servant; nor does it all depend upon the right of the master to sue him. Star Brewery Co. v. Hauck, 222 Ill. 348, 78 N.E. 827, 113 Am. St. Rep. 420, 424. Evidence bearing upon either of these questions would be irrelevant to the issue raised in a case like this. The right to proceed against the master is in no sense...