Brennan v. Huber

• Decision Date: 03 March 1934
• Docket Number: 166,167-1933
• Citation: 112 Pa.Super. 299,171 A. 122
• Parties: Brennan et al. v. Huber, Appellant
• Court: Pennsylvania Superior Court

171 A. 122

112 Pa.Super. 299

Brennan et al. v. Huber, Appellant

Nos. 166, 167-1933

Superior Court of Pennsylvania

March 3, 1934

Argued October 2, 1933

Appeals by defendant from judgments of M. C., Philadelphia County-1930, No. 558, in the case of Edward Brennan, by his father and next friend Christopher J. Brennan and Christopher J. Brennan and Bertha M. Brennan, parents, in their own right, v. Wilhemina Vogel Huber.

Trespass to recover damages for personal injuries. Before Walsh, J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 2,000 and judgment thereon. Defendant appealed.

Errors assigned, were charge of the court, answers to points various rulings on evidence and refusal of defendant's motion for judgment non obstante veredicto.

Affirmed.

Oliver C. Reithmiller, for appellant. -- The plaintiff after having previously sued the servant or agent of this defendant for the same damages arising from the same negligence on which this action is based and having recovered a verdict against the servant or agent and entered judgment thereon cannot maintain this action against the defendant, the principal: Betcher v. McChesney, 255 Pa. 394; Zimmer v. Casey, 296 Pa. 529; Brobston v. Darby Borough, 290 Pa. 331; Goldman v. Mitchell Fletcher Co., 292 Pa. 354; Wright v. J. and S. Wilcox, 19 Wendell (N. Y.) 343; Parsons v. Wenchell et al., 59 Mass. (5 Cushing) 592.

James F. Masterson, for appellee. -- The uncollectible judgment against the agent was no bar to the subsequent action against the principal: Greenberg v. Palmieri, 71 N. J. L. 83; Steele-Smith Gro. Co. v. Potthast, 109 Iowa 413; Curtis v. Williamson, L. R. 10 Q. B. 57; Merrill v. Kenyon, 48 Conn. 314; Reid v. Miller, 205 Mass. 80; Floyd v. Brown, 1 Rawle 121; Beymer v. Bonsall, 79 Pa. 298; Horworth v. Simon, 95 Pa.Super. 410, 413; DesClazi v. N. A. Fruit Exch., 95 Pa.Super. 293, 296.

Before Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Parker, J.

The question involved in this appeal is whether a judgment for plaintiff in a suit in trespass against a servant is a bar to a second suit by the same plaintiff against the master. The facts with one exception were not in dispute, and as to that one fact the verdict of the jury was conclusive.

The plaintiff, Edward Brennan, a minor, was struck and injured by an automobile owned by Wilhemina V. Huber and driven by her brother, Joseph V. Huber, while engaged in the business of his sister and when she was not present. On December 24, 1929, the same persons who are plaintiffs in this action brought suit in trespass against the driver to recover damages resulting to the minor and his parents from the accident, and that action resulted in a verdict for the plaintiffs on which judgment was entered. On the trial of that action, Joseph swore that he was engaged in the business of his sister at the time of the accident. Not receiving actual satisfaction of the judgment, this action was begun against the owner and on the trial before a jury there was offered in evidence the complete record of the former action against the servant, or agent, including the verdict and judgment entered thereon and an affidavit of plaintiffs to hold for bail.

Before beginning any action, Christopher J. Brennan, the father of the minor testified that he had a conversation with the owner and driver of the car while together. He further said: "I asked who owned the car and she said she did, and I asked her if her brother was driving for her at the time and she said no, he was on his own pleasure and I asked him in her presence and he said, 'No, I was on my own pleasure, my sister had nothing to do with the car, although she owns it.' The sister said, 'I don't have a license but I bought it for the purpose of using it, for our family's use.'" On cross examination he also stated that he explained to them that he wished to know whether Joseph, the driver, was the agent of the owner and to whom he would look for damages. Both sides having conceded that the judgment in the first case was conclusive as to the negligence and amount of damages in the second case and that the driver was the agent of the owner, the trial court submitted one question to the jury. They were instructed that if the plaintiffs were deceived by the defendant as to the agency of the driver and when the first suit was brought they did not know that the driver at the time of the accident was engaged in the owner's business, the verdict should be for plaintiffs; otherwise for defendant. The verdict for the plaintiffs has determined the facts submitted in plaintiffs' favor.

The defendant then urged, as she now does, that the second action could not be maintained, that the plaintiffs were required to elect against which of the two they would proceed, and that when judgment was entered, such judgment was a bar to further proceedings against the other. The diligence of counsel and our own efforts have not disclosed a case in Pennsylvania precisely in point unless it may be that of Betcher v. McChesney, 255 Pa. 394, 100 A. 124. There are at least dicta in that case which lend support to the position of appellant. As we shall endeavor to show later, we are convinced, however, that that case is not decisive of the question involved, and it becomes necessary to make an examination of cases in this and other jurisdictions to arrive at a correct solution of the question involved.

The appellant more specifically urges that as the driver and owner were not joint tort feasors, the second suit could not be maintained, thereby tacitly admitting that if this were a case of a joint tort the second suit could be maintained. As is pointed out by Judge Cooley: "Where, however, the servant is the only active wrongdoer, and the master is liable also only because of the application of the doctrine of respondeat superior, because the act was done by the servant in the course of employment, there is a difference of opinion as to whether the master and the servant may be held jointly liable": 1 Cooley on Torts, (4th Ed.) § 87. The dicta in Betcher v. McChesney, supra, would seem to indicate that in Pennsylvania master and servant, where the master is not an active wrongdoer, are not joint tort feasors. If they were jointly liable then under the authorities to which we will refer that would be an end to the appeal. We prefer, however, to assume, for the sake of argument at least, that here the master and servant were not joint tort feasors as we are of the opinion that the result is not affected by that situation.

It is apparent that there was in the early cases both in England and in the United States considerable confusion as to the effect of a verdict against one affected by a joint liability upon the right to prosecute another or others in the cases both of joint contracts and joint torts. The weight of authority in England favored the position that in tort but one action could be maintained, but the English doctrine has not been followed in the United States.

As to joint contracts and contracts involving the acts of master and servant and principal and agent, the law is well settled in Pennsylvania. The leading case of Beymer v. Bonsall, 79 Pa. 298, although it involved an action on a contract, dealt with a relationship which has a striking analogy to the situation we are here considering. There certain brokers entered into a contract with the plaintiff for the sale of a quantity of oil. The brokers having failed to comply with their contract, the buyer brought suit and recovered a judgment against the broker for his loss. Subsequently the brokers advised plaintiff that they were undisclosed agents for one Bonsall. Thereupon a second suit was brought against the undisclosed principal and judgment was recovered, notwithstanding the plea of the former judgment. The Supreme Court there said (p. 300): "Undoubtedly an agent who makes a contract in his own name without disclosing his agency is liable to the other party. The latter acts upon his credit and is not bound to yield up his right to hold the former personally, merely because he discloses a principal who is also liable. The principal is liable because the contract was for his benefit, and the agent is benefited by his being presumedly the creditor, for there can be but one satisfaction. But it does not follow that the agent can afterwards discharge himself by putting the creditor to his election. Being already liable by his contract, he can be discharged only by satisfaction of it, by himself or another. So the principal has no right to compel the creditor to elect his action, or to discharge either himself or his agent, but can defend his agent only by making satisfaction for him."

In the case of Lovejoy v. Murray, 3 Wall. 1, 18 L.Ed. 129 the United States Supreme Court repudiated the English doctrine and gave its unqualified approval to the principle that successive actions might be maintained against...