Hubbard v. Gould

• Decision Date: 04 September 1906
• Citation: 74 N.H. 25,64 A. 668
• Parties: HUBBARD v. GOULD et al.
• Court: New Hampshire Supreme Court

64 A. 668

74 N.H. 25

HUBBARD

v. GOULD et al.

Supreme Court of New Hampshire. Rockingham.

Sept. 4, 1906.

Transferred from Superior Court.

Action by Joshua W. Hubbard (George H. Warren, plaintiff in interest) against Sylvester W. Gould and others. Judgment in favor of plaintiff, and cause transferred from the superior court. Judgment ordered set aside. Case discharged.

Case, for negligence, with counts in assumpsit, to recover the amount paid on a judgment recovered by one Rogers against the plaintiff and the expense of defending the suit in which the judgment was rendered. In 1898 the plaintiff Hubbard conveyed to the defendants a small tract of land adjoining his own. The habendum of the deed began as follows: "To have and to hold * * * so long as they make and maintain a line fence separating it from land of grantor and his heirs." The lands were separated by a barbed wire fence. In August, 1901, Rogers turned his horse to pasture on the plaintiff's land adjoining that of the defendants. At that time the wire fence between the lands of the parties was out of repair and in such a condition that Rogers' horse became entangled in the fence and was injured. July 4th the fence was in a suitable condition, and the defendants have no knowledge of any change in its condition. The place of the accident was about 200 feet from the railroad station where Hubbard was employed and about 50 feet from the bars where the horse was turned into pasture. Rogers brought suit against the plaintiff for the injury to his horse and recovered a judgment which was satisfied by levy upon the plaintiff's property. The defendants were duly notified of the pendency of the suit and requested to undertake its defense, but did not do so. The question tried in the suit was the negligence of one or both parties. Hubbard, the present plaintiff, paid counsel and witnesses and other expenses in defending the action brought by Rogers. On the foregoing facts it was ruled pro forma that the plaintiff was entitled to judgment for the damages and costs recovered by Rogers and the costs of the levy, but not for the expense of defending the suit, and both parties excepted. At the October term, 1902, the bankruptcy of Hubbard was suggested, and it was ordered that his trustee appear at the next term or there would be judgment for the plaintiff. The trustee did not appear.

Burnham, Brown, Jones & Warren, for plaintiff. G. K. & B. T. Bartlett, for defendants.

PARSONS, C. J. As the defendants had notice of and an opportunity to defend the suit Rogers v. Hubbard, they are now concluded by the determination therein made of all facts which are now in controversy. Boston & Maine R. R. v. Brackett, 71 N. H. 494, 53 Atl. 304. The ground upon which the plaintiff can now recover for the injury to him because of the accident to Rogers' horse is the same as it would be if the suit were for injury to his own horse under similar circumstances. The judgment in Rogers' action is material only as evidence. Its sole effect is to relieve the parties of the necessity of proving or disproving any facts therein determined. Gregg v. Company, 69 N. H. 247, 46 Atl. 26. The defendants are concluded as to all matters which were actually litigated and determined in the suit, and as to all matters of defense which they might have set up but did not. If the record does not disclose the matters actually litigated the same may be shown by competent evidence. Hearn v. Railroad, 67 N. H. 320, 29 Atl. 970.

It is found that the questions litigated in that suit were the negligence of both parties. The verdict and judgment establish therefore that Rogers was not guilty and the defendant Hubbard was. Hubbard's negligence for which he was held responsible in that action may have been his personal fault, or it may have been the fault of the defendants, for which, as the owner of the land and lessor of the pasturage, he was responsible to Rogers. The declaration in this suit alleges the negligence established by the verdict and judgment to have been the negligence of the defendants. To recover for the damage to him because of an injury to his own or another's animals, caused by the defendants' negligence in the performance of an assumed duty to maintain the fence, the plaintiff must show that the injury arose from the default of the defendants without the breach of any duty owed by him to them. The established fact that Hubbard is in fault, as between himself and Rogers, does not necessarily determine that he is also in fault as between himself and the defendants. Boston & Maine R. R. v. Sargent, 72 N. H. 455, 462, 463, 57 Atl. 688. The sole negligence charged against Hubbard may have been the unsafe condition of the fence for which the defendants may be solely responsible. He may have been considered negligent, as between himself and Rogers, for not ascertaining the condition of the fence. Or it may have been shown that he knew the danger before the horse came to the pasture. Reliance on the defendants to properly maintain the fence may not be negligence as between himself and them, and be of an entirely different character as between himself and Rogers. Some of these questions may have been determined by the prior litigation. All of them could not be. The facts are not found by the case. There is no verdict for the plaintiff which upon the evidence and allegations might be considered to include a finding upon the essential facts in Issue. The case is presented upon a pro forma ruling of law,...