Fitzhugh v. Grand Trunk Ry. Co.

• Decision Date: 01 November 1921
• Docket Number: No. 1778.,1778.
• Citation: 115 A. 803
• Parties: FITZHUGH v. GRAND TRUNK RY. CO. et al.
• Court: New Hampshire Supreme Court

115 A. 803

FITZHUGH

v. GRAND TRUNK RY. CO. et al.

No. 1778.

Supreme Court of New Hampshire. Merrimack.

Nov. 1, 1921.

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Action in case for conspiracy by Earl H. Fitzhugh against the Grand Trunk Railway Company and others, begun by trustee process in which demurrers were filed to the declaration, and motion made to dismiss for misjoinder of defendants. Plaintiff moved that defendants' appearances be treated as general. The demurrers were overruled, the motions to dismiss were denied, and plaintiff's motion was granted, and the defendants excepted, and the case was transferred. Demurrer overruled, and motion to dismiss denied.

Case, for interference with the plaintiff's rights by sundry acts and words, being the same action heretofore reported. 79 N. H. 371, 109 Atl. 562. The defendants are the Grand Trunk Railway Company, the Central Vermont Railway Company, Edson J. Chamberlin, Alfred W. Smithers, and Edward C. Smith. The individual defendants are nonresidents. After the former decision the trustees' disclosures were taken and showed large sums due. Orders of notice were issued, and upon the return day each individual defendant filed a special appearance, stated to be for the sole purpose of protecting the party's rights in the funds which had been attached. For the same purpose they each filed a demurrer to the declaration and a motion to dismiss the action for misjoinder of defendants. Thereupon the plaintiff moved that the appearances be treated as general. The demurrers were overruled, the motions to dismiss were denied, and the plaintiff's motion was granted. The defendants excepted, and the questions thus raised were transferred from the April term, 1921, of the superior court by Sawyer, J.

James W. Remick, Nathaniel E. Martin, and Murchie & Murchie, all of Concord, for plaintiff.

Henry F. Hurlburt, Francis P. Garland, and Hurlburt, Jones & Hall, all of Boston, Mass., and George F. Rich, of Berlin, specially, for defendants Smithers and Chamberlin.

J. W. Redmond, of Newport, Vt, and George F. Rich, of Berlin, specially, for defendant Smith.

George F. Rich, of Berlin, for defendants Grand Trunk and Central Vermont Railways.

PEASLEE, J. 1. The defendants' demurrers and motions to dismiss are based upon the same ground. The claim is that there is a misjoinder of defendants. Upon the defendants' motion, the declaration has been amplified by more particular statements of the acts relied upon by the plaintiff, and the demurrers relate to the declaration in its present form. The first of these statements charges that—

"On the 23d day of January, 1913, the said defendants Grand Trunk Railway Company of Canada, by its president, and the Central Vermont Railway Company, by its chairman of its board of directors, Edson J. Chamberlin, of St. Albans, Vt., at a meeting of officials of said companies, maliciously and falsely accused the plaintiff of manufacturing evidence and testifying falsely before the federal grand jury sitting at New York investigating the agreement between the Grand Trunk Railway Company, of Canada, the Central Vermont Railway Company and the New York, New Haven & Hartford Railroad Company, and thereby forced his retirement from the presidency of the Central Vermont Railway Company and all of its subsidiaries and subsidiaries of the Grand Trunk Railway Company."

This statement presents all the questions now involved, and for convenience the case is considered upon the basis of this part of the declaration only, and as touching the relations between the defendant Chamberlin and the Grand Trunk Railway.

At the outset counsel are at variance over the meaning of the language used in the amended declaration. The defendant contends that it charges certain instances of malicious conduct upon the part of one individual defendant only, and that it states a claim of liability therefor by the corporate defendant, upon the basis of responsibility for arts of an agent. The plaintiff claims that the language he has used has a broader meaning, and that it charges acts done, not only by the individual defendant, but by other agents or officers of the corporate defendant as well. Ordinarily, no time would be spent over such a controversy. The objection would be obviated by the plaintiff's amending his declaration so that it would unquestionably state what he claims it now alleges. Whether the plaintiff shall pursue this course, or shall persist in standing upon the declaration in its present form, at the risk of having certain evidence and grounds of liability excluded at the trial, is a matter for him to decide.

The substantial reason for not so amending at the present time appears to be that the parties are desirous of ascertaining in advance of the trial whether the principal and agent may be held liable in a suit against both for the malicious acts of this agent alone. As this question is practically certain to arise at the trial, and as the presiding justice deemed it wise that it should be determined in advance, argument has been heard which, though in form upon the unimportant question whether the plaintiff has sufficiently stated his case in his declaration, yet in substance concerns a material question in the cause.

Can the principal and the agent be joined as defendants in an action seeking to charge both for a tort committed by the agent in the course of the principal's business? In Page v. Parker, 40 N. H. 47, it was held that they cannot be so joined. The decision seems to be put upon two grounds: (1) That the form of action would not be the same as to both; and (2) that, as there can be no contribution between joint wrongdoers, the maintenance of such a suit, followed by verdict and judgment for the plaintiff against both defendants, would deprive the principal of any subsequent remedy over against the agent. The first ground for that decision is no longer tenable in this jurisdiction. The form of action is not now material, unless it in reality involves a question of substance.

So far as Page v. Parker, supra, stands upon the ground that, where judgment has been obtained against two in an action sounding in tort, one cannot recover against the other, it is overruled, though not in terms, by Boston & Maine Railroad v. Sargent, 72 N. H. 455, 57 Atl. 688. The flaw in the argument advanced in Page v. Parker, supra, is the assumption that the verdict and judgment in the first suit would establish the proposition that the principal was a tort-feasor as between him and the agent. That this is not the correct rule is clearly pointed out in Boston & Maine Railroad v. Sargent, supra, and nothing need be added to what is there said upon the subject. Under the present practice in this state, there is no obstacle, as matter of law, to joining the principal and agent as defendants in the manner here attempted.

The corporate defendant argues that one result of such a conclusion would be to subject it to undue hardship...