Chesley v. Dunklee
| Decision Date | 05 May 1914 |
| Citation | 90 A. 965,77 N.H. 263 |
| Parties | CHESLEY v. DUNKLEE. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Merrimack County; Chamberlin, Judge.
Action by Frank Chesley against Norris Dunklee. Transferred without ruling. Case discharged.
Case, for negligence. The declaration alleges that the defendant, while constructing a garage, had the control and supervision of the plaintiff and other workmen, negligently failed to furnish the plaintiff a safe place to work, and negligently commanded the plaintiff to work in an unsafe place, whereby the plaintiff was injured. The defense set up is a judgment in the defendant's favor in a prior suit brought against him by the plaintiff to recover for the same injuries. The declaration in that suit alleged that the plaintiff was at work for the defendant for hire, and that the defendant negligently failed to instruct and warn the plaintiff, or to provide a suitable work place, instrumentalities, rules, and fellow servants, whereby the plaintiff was injured. Upon the trial of that suit the jury were specially inquired of whether the plaintiff was the defendant's servant, and were instructed that, if they found he was not, they should return a verdict for the defendant. The jury answered the question in the negative, and returned a general verdict for the defendant, upon which judgment was entered. The question whether that judgment, if properly pleaded, is a bar to the present suit was transferred without a ruling.
Niles & Upton, of Concord, for plaintiff. Martin & Howe, of Concord, for defendant.
The plaintiff seeks to maintain the present suit upon the ground that the issue tried in the former action and settled by the judgment therein was only that he was not the defendant's servant, and that a claim of negligence growing out of some other relation of the parties is still open to him.
One question presented by these contentions is whether, in an action on the case to recover damage for personal injuries caused by negligence, the matter in issue is the defendant's negligence in a broad and general sense, or some particular neglect which is specially alleged in the declaration. "The distinction is between facts which, being alleged in pleading, constitute a good cause of action or a good defense, and facts which are merely evidence—between facts which upon the face of the pleadings are essential to be established by one party or the other, and facts which upon the face of the pleadings are immaterial, and become material only by the course of the evidence." Metcalf v. Gilmore, 63 N. H. 174, 187. In this case the good cause of action is set up by an allegation that the defendant negligently caused a stone to fall upon the plaintiff, to his damage. This is all that it is essential to establish. The matters put in issue are the elements of negligence and damage.
In order to establish negligence, it is essential that the plaintiff show a relation between himself and the defendant. Garland v. Railroad, 76 N. H. 556, 86 Atl. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 924. The relation may be that of master and servant, or only that of two men working side by side. The particular relation was not the matter in issue in this case. It was merely the evidence by which the plaintiff sought to establish the fact that the conduct of one party was likely to affect the other. This aspect of the case involves the principle of King v. Chase, 15 N. H. 9, 41 Am. Dec. 675. There the suit was for the conversion of a lot of oats. This put in issue the plaintiff's title. The particular title relied upon was a mortgage, which was found to be fraudulent. This did not make the validity of the mortgage the matter in issue. The matter in issue which was settled by that suit was that the plaintiff did not have title to the oats—not that his mortgage was invalid. So here the matter in issue, and consequently settled by the judgment, was the defendant's relation to the plaintiff. The fact that by the course of the trial, or the admissions in the declaration, this was made to turn on whether they were master and servant, did not change the issue or narrow the scope of what was settled by that verdict and judgment. Metcalf v. Gilmore, 63 N. H. 174, 187; Winnipiseogee, etc., Co. v. Laconia, 74 N. H. 82, 65 Atl. 378.
"Matter in issue" means an essential element of a cause of action or a defense recognized by the law; things to be pleaded, as distinguished from those merely proved. In this instance it means the elements of an action on the case for negligence. Those elements are: (1) Relation of the parties; (2) the defendant's failure to use ordinary care; (3) the plaintiff's care; (4) resulting damage. In King v. Chase, 15 N. H. 9, 41 Am. Dec. 675, title was an essential element of the cause of action, but the particular title was not. Therefore it followed that the estoppel applied to the former, although only the latter was tried. The plaintiff tried as much of title as he saw fit to claim. Title was essential, but title by mortgage was not Likewise, in this suit for negligence, relation of the parties is an essential element, but relation as master and servant is not. As pointed out in King v. Chase, if this were not so, the plaintiff could have as many trials as there are relations of which he could find evidence. If the particular relation or the precise bit of negligence were the matter in issue, the plaintiff might continue to prosecute his claim indefinitely. The prevention of such a result is one object of the rule.
It is to be presumed, and such is the fact, that some essential element in a cause of this kind was litigated. That element was the relation of the parties. Instead of trying it generally, or upon an alternative theory, it was claimed that the relation arose in a single, defined way. This method of evidencing a relation having failed, the issue tried was decided against the plaintiff, and is is settled between these parties that there was no relation between them, not merely that the relation of master and servant did not exist. The plaintiff's right is to try his case once—not once on one theory, and again on another.
The plaintiff's claim, that "the issue as to whether the plaintiff was injured as a result of the breach by the defendant of any duty arising out of the relation of master and servant was not determined by the jury," involves a confusion of ideas. It is true they did not return an answer to this specific question, but th...
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