Cleveland v. City of Bangor

• Decision Date: 01 March 1895
• Citation: 32 A. 892,87 Me. 259
• Parties: CLEVELAND v. CITY OF BANGOR.
• Court: Maine Supreme Court

32 A. 892

87 Me. 259

CLEVELAND

v. CITY OF BANGOR.

Supreme Judicial Court of Maine.

March 1, 1895.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

This was an action by Lena T. Cleveland against the city of Bangor to recover for personal injuries which the plaintiff received by reason of a trolley-wire pole erected and maintained on Exchange street, Bangor, which she claimed was an obstruction in the street, and such a defect as rendered the street unsafe for public travel.

The only question raised by the exceptions was to the ruling of the presiding justice upon the plea of defendant setting up, as a bar and defense to this action, that the plaintiff had recovered a judgment against the Bangor Street Railway, by which the pole was erected and maintained, for the same injuries, on which judgment and execution issued. There has been no satisfaction of that judgment. Judgment for plaintiff. Defendant excepts. Overruled.

C. P. Stetson and P. H. Gillin, for plaintiff.

H. L. Mitchell, City Sol., for defendant.

WHITEHOUSE, J. The plaintiff recovered a verdict for $1,100 against the city of Bangor for personal injuries received on Exchange street by reason of an obstruction which she claimed rendered the way defective and unsafe for public travel. The defect alleged was one of the poles erected and maintained by the Bangor Street Railway for the support of the trolley wire used in the operation of that company's road.

The pole in question was located on the westerly side of Exchange street, 27 feet northerly from the extension of Washington street it was set in the street, with its outer face 18 inches, and its inner face 9 inches, from the curbstone of the sidewalk; the pole being 9 inches in diameter at its base. At the time of the accident it "leaned over considerably" into the street. Exchange street is 46 feet wide between the curbstones, and the distance from the curb, near the location of the pole, to the westerly rail of the track, is 21 feet.

On Sunday, September 18, 1892, the plaintiff, with her husband and two others, was riding on Exchange street, in a two-seated covered carriage, drawn by one horse, the team being in the control of her husband, as driver. As they drew near Washington street, the horse became frightened at the appearance of one of the electric cars approaching around the corner, and suddenly shied to the right, and at the same time sprang forward, and brought the carriage in contact with the pole in question, throwing the plaintiff out, and causing the injury of which she complains.

The case comes to this court on exceptions and a motion to set aside the verdict as against evidence.

1. The exceptions.

Prior to the commencement of this action against the city of Bangor, the plaintiff had brought suit against the Bangor Street Railway for the same injuries described in the declaration in this case, and recovered judgment for the sum of $914.57, on which execution was duly issued; but there has been no satisfaction of that judgment, for want of property belonging to that company which the plaintiff could make available for the purpose.

That judgment was duly pleaded by the defendant's counsel in defense of this action; but the presiding judge ruled that the mere recovery of judgment against the street railway, without satisfaction, was no bar to a suit against the city. An exception was taken to this ruling, and it appears in the printed case, duly allowed by the presiding justice; but it is evidently not relied upon, as no allusion whatever is made to it in the elaborate argument submitted by the learned counsel for the defense.

The instruction upon this point was undoubtedly correct. As every wrongdoer is responsible for his own act, it is a general rule that, when two or more participate in the commission of a wrong, the injured party may proceed against them either jointly or severally; and, if severally, whether the separate actions are brought at the same time or successively, each may be prosecuted to final judgment. But the sufferer is obviously entitled to only one full indemnity for the same injury. If, however, the several judgments differ in amount, he may elect to take his satisfaction "de melioribus damnis"; or, if the defendants are not all solvent, he may elect to proceed against the solvent party. But, with respect to several judgments recovered at the same time, no such choice "of the better damages," or larger judgment, and no such election to proceed against a party supposed to be solvent, unless followed by actual satisfaction, will prevent the plaintiff from enforcing a judgment against another defendant. Nor will an unsuccessful attempt to enforce a judgment against one wrongdoer be a bar to a subsequent action against another who is liable for the same wrong. And it; is entirely immaterial whether execution was issued on the prior judgment or not An unsatisfied judgment against one tort feasor is no bar to a suit against a joint tort feasor. It is not the formal adjudication of a right or the legal precept for its enforcement, but the substantial fact of compensation, or its equivalent, which constitutes the bar.

This doctrine not only rests upon principles of sound reason and manifest justice, but is supported by an overwhelming weight of authority. It prevails in a great majority of the American states, and has received the unqualified approval of the supreme court of the United States In Lovejoy v. Murray, 3 Wall. 1, it was held that judgment in a former suit, with part payment, constituted no bar to the action against the defendant. In the opinion, by Miller, J., it is said: "But, in all such cases, what has the defendant in such second suit done to discharge himself from the obligations which the law imposes upon him to make compensation? His liability must remain, in morals and on principle, until he does this. The judgment against his cotrespassers does not affect him so as to release him on any equitable consideration." "But when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected, in equity and good conscience, that the law will not permit him to recover again for the same damages. But it is not easy to see how he is so affected until he has received full satisfaction, or what the law must consider as such.

"We are, therefore, of the opinion that nothing short of satisfaction, or its equivalent, can make good a plea of former judgment in trespass, offered as a bar in an action against another joint trespasser, who was not party to the first judgment" In Sheldon v. Kibbe, 3 Conn. 214, there had been judgment against a cotrespasser, who was committed to jail by force of an execution which issued thereon, but the court held these facts to be no bar to the suit against the defendant. In the opinion, Hosmer, C. J., says: "The common law, founded as it is upon reason, and allowing nothing that is nugatory, much less that is pernicious, will sanction no inutility or absurdity. Now, what can be more absurd than to authorize the pendency and proceeding of twenty separate actions against persons concerned in a joint trespass, and, after the accumulation of vast expense, to hold that the first judgment bars the other suits." See, also Ayer v. Ashmead, 31 Conn. 447; Osterhout v. Roberts, 8 Cow. 43; Elliott v. Hayden, 104 Mass. 180; Knight v. Nelson, 117 Mass. 458; Savage v. Stevens, 128 Mass. 254; Sanderson v. Caldwell, 2 Aikens, 195; Elliot v. Porter, 5 Dana, 299; Society v. Underwood, 11 Bush. 265; Wyman v. Bowman, 71 Me. 123; Bigelow, Estop. 57, 128; Cooley, Torts, (2d Ed.) 158. In Freem. Judgm. § 236, the author says: "A few cases * * * decide that the mere issuing of an execution is. a conclusive election to consider the defendant as exclusively responsible. But a majority of the American cases discountenances this manifest absurdity. * * * How vain and delusive that law must be which declares the right of an injured party to proceed severally against every person concerned in committing an in jury; which sustains him until the liability of every wrongdoer is severally determined, and evidenced by a final judgment; and which, after thus 'holding the word of promise to his ear, breaks it to his hope' by forbidding him to attempt the execution of either judgment, upon penalty of releasing all the others."

White v. Philbrick, 5 Me. 147, is one of the "few cases" that may be cited in support of the doctrine thus characterized by Mr. Freeman as a "manifest absurdity." It appears to have been decided on the authority of the early case of Broome v. Wooton, Yel. 67j, and a qualified dictum in Livingstone v. Bishop, 1 Johns. 290; but it stands upon indefensible ground. As stated by the court in Murray v. Lovejoy, 2 Cliff. 191, Fed. Cas. No. 9,963, "it does not seem to rest upon any substantial basis," and should no longer be followed. In the later case of Hopkins v. Hersey, 20 Me. 449, it is held that a collateral concurrent remedy against one not a joint trespasser is not barred by anything short of actual satisfaction, and the case of White v. Philbrick, supra, is distinguished as a "decision limited to cotrespassers." This technical refinement was obviously suggested to prevent a conflict and avoid the necessity of overruling White v. Philbrick. But, with regard to the point under consideration, no sound reason has been given, and it is believed that none can be assigned, for such a distinction between the case of wrongdoers who are jointly and severally liable and of those who are only severally liable for the same injury. In either case the sufferer is entitled to but one compensation for the same injury, and full satisfaction from one will operate as a discharge of the others. In neither case will anything short of satisfaction from one bar a suit against another. A master, for instance, is liable for the tort of his servant, and a satisfaction...