Daniels v. Parker

• Decision Date: 02 October 1956
• Docket Number: No. 1066,1066
• Parties: , 59 A.L.R.2d 1060 Donald J. DANIELS v. George N. PARKER, James M. Harrison, Jr., and Vermont Marble Co.
• Court: Vermont Supreme Court

Page 85

126 A.2d 85

119 Vt. 348, 59 A.L.R.2d 1060

Donald J. DANIELS v. George N. PARKER, James M. Harrison, Jr., and Vermont Marble Co.

No. 1066.

Supreme Court of Vermont.

Oct. 2, 1956.

Silvio T. Valente and Frederic J. Delaney, Jr., Rutland, for plaintiff.

Clayton H. Kinney, Lawarence & O'Brien, Ryan, Smith & Carbine, Rutland, for defendant.

Before JEFFORDS, C. J., and CLEARY, ADAMS, CHASE and HULBURD, JJ.

HULBURD, Justice.

The defendant Vermont Marble Company's demurrer to the plaintiff's complaint raises the single question: can a plaintiff join the employer and the employee as parties-defendant in an action of tort where the employer's liability for the alleged negligent act of the employee is based solely on the doctrine of respondeat superior?

The plaintiff declares that he was a pedestrian lawfully using the public highway and that while so doing he was injured in a motor vehicle accident involving two automobiles, one of which, he says, was being negligently operated by the defendant George N. Parker, who was then and there engaged in the business of the defendant, Vermont Marble Company, and acting as its servant or agent. To this complaint the defendant, Vermont Marble Company, demurred on the ground that 'under the laws of Vermont, the plaintiff cannot maintain his aforesaid action against both the master and the servant, but rather must bring a severable action, it being maintained a joint action such as this does not lie against both the master and the servant.'

The trial court overruled the defendant's demurrer and the case is here on exceptions to the court's action.

The defendant, Vermont Marble Company, points out that there is no allegation that it authorized, ratified, or participated in the negligent acts of defendant Parker; that clearly the plaintiff's action is predicated on the doctrine of respondeat superior. This being so, the defendant-employer contends that the plaintiff may not maintain an action against both the employer and employee; he may sue one or the other, the defendant argues, but not both in the same action. In support of its position, the defendant cites a line of cases headed by Raymond v. Capobianco, 1935, 107 Vt. 295, 178 A. 896, 98 A.L.R. 1051, and followed by Eisler v. Wilder, 108 Vt. 37, 182 A. 204; Jones v. Valisi, 111 Vt. 481, 18 A.2d 179; Sears v. Laberge, 116 Vt. 168, 71 A.2d 687; and Gould v. Towslee, 117 Vt. 452, 94 A.2d 416. The defendant points out that in the Capobianco case, supra, 107 Vt. at page 303, 178 A. at page 899, this Court said: 'We think the rule that in such cases, the master and servant are not joint tort-feasors, and are only severally liable to an injured person, is based on sounder reasoning than the rule that they are joint tort-feasors, and therefore jointly and severally liable, and we adopt that rule.' Then again in Eisler v. Wilder, 108 Vt. 37, at page 38, 182 A. at page 204, this Court used the following language: 'In the recent case of Raymond v. Capobianco, 107 Vt. 295, 178 A. 896, this Court held that in tort actions where the wrongful act was committed by the servant alone, and the master did not participate in it or adopt it, the master is liable only under the doctrine of respondeat superior; that under such circumstances the liability of the master and the servant is several and not joint; and that a joint action cannot be maintained against them.' The same doctrine is reflected in the three other cases cited, namely, in Jones v. Valisi, 111 Vt. 481, 18 A.2d 179, Sears v. Laberge, 116 Vt. 168, 71 A.2d 687, and Gould v. Towslee, 117 Vt. 452, 465, 94 A.2d 416.

To meet the defendant's seemingly well-justified position, the plaintiff advances two main arguments. First, that the decisions on which the defendant relies are mere dicta, at least, so far as this case is concerned, and secondly, that the reasoning supporting them is tenuous and unsatisfactory and has been rejected by the vast majority of jurisdictions.

It is, of course, generally recognized that there is a conflict of authority as to whether a master and a servant can be sued jointly in the circumstances under consideration. It is further generally recognized that by the Capobianco case Vermont subscribed to the negative view in this matter and, in so doing, aligned itself with the views of a very restricted minority. See 57 C.J.S., Master and Servant, § 579; 35 Am.Jur., Master and Servant, § 592; Mechem, Agency, § 2011. Although we have an early dictum to the contrary in Brown v. Lent, 20 Vt. 529, 532, our position in all our recent cases has consistently indicated an adherence to the doctrine spelled out in the Capobianco case, even though such doctrine may not have been necessary to its decision.

Without doubt the question is now presented to us more squarely than in any former case. Thus confronted, we think we should take advantage of the opportunity which has arisen and review our position, and consider how well taken our stand was when Raymond v. Capobianco, 107 Vt. 295, 178 A. 896, 98 A.L.R. 1051, was decided; for it was with that case that we first announced the rule which in subsequent cases has come to be regarded as an established doctrine in this State. Inasmuch as all our later cases on the subject owe their provenience to the Capobianco case, an examination of the reasoning underlying it would seem to be called for. The situation in that case was as follows: the plaintiff sued one Costa, and obtained a judgment which remained unsatisfied; thereafter the plaintiff brought a second suit against Costa's employer under the rule of respondeat superior. The defendant's third plea alleged the fact of the former trial, verdict, and judgment, and that the cause of action was concerned with the identical accident first sued on and based solely on the doctrine of respondeat superior, whereby the defendant alleged that the plaintiff was barred from maintaining his second action because he exercised an election in the bringing of the first suit against Costa. On demurrer by the plaintiff, the plea was held good by the lower court. This ruling was affirmed by this Court on the ground that when the plaintiff elected to sue the servant, Costa, the judgment in the suit against Costa barred the plaintiff from maintaining the second suit against the master.

It must be confessed that the decision of the Capobianco case was not well received if the law reviews furnish any criterion. Nor has its experience been any better at the hands of those courts that subsequently have had the same question to pass upon. None of them appeared to have followed it. Its reasoning made no converts. Its logic, if comprehensible, failed to commend itself to others. As was said in 45 Yale Law Journal 920 'the precise grounds for the decision are somewhat obscure.'

Apparently the Court proceeded from the premise assumed, 107 Vt. at page 298, 178 A. at page 897, where it says 'No claim is made by the plaintiff that this action can be maintained against the defendant on any ground other than that the defendant and his servant were joint tort-feasors and therefore jointly and severally liable.' With this introduction the Court proceeds to discuss the question of whether the master and servant may be sued jointly where the doctrine of respondeat superior is involved. The Court concluded that the vicarious liability of the master is only a substituted or alternative one which cannot exist concurrently with that of the servant, and by so doing according to the reviewer in the Yale Law Journal, supra, 'The necessity of an election is thereby read into the doctrine of respondeat superior itself.'

In dealing with the problem, our Court recognized that the authorities were in conflict. Having cited some of them which were contrary to the course ultimately adopted, it came to the case of Parsons v. Winchell, 1850, 5 Cush., Mass., 592. This it cited as a leading case; 'where it was held that a master and a servant were not liable jointly in an action on the case for an injury caused by the negligence of the servant while driving the horses and carriage of the master in his absence'. When the Court turned to Parsons v. Winchell, supra, it turned backward to a case based on the outmoded 'forms of action'. In so doing, it adopted a fallacious approach to the problem which could lead only to a dead end. In the older procedure, the remedy against the master who did not command or participate in the wrong, but who, in the event of his servant's negligence, had the fault imputed to him, would be an action in case, while the action against the servant would be trespass, and these actions could not be joined. See Note in 98 A.L.R. 1058. The Court apparently failed to take into account the effect of the abolition of common law forms of action by our Practice Act. Under it, whether a master and his servant were joint tort feasors in a technical sense was no longer meaningful and should not have been of controlling importance. As an authority Parsons v. Winchell was absolescent.

Even at the time it was decided, this Massachusetts case is said not to have been supportable by reason or authority. See note in 21 Illinois Law Review (1927) 522, 523. We do not pursue this question further, however, since no matter how well decided Parsons v. Winchell may have been originally, the advent of the Practice Act made it vacuous as an authority in 1935, the date of the Capobianco case.

The other cases cited by the Court in support of its position were largely decisions which had derived from Parsons v. Winchell, sup...