John v. Fernandez, 1978

CourtUnited States State Supreme Court of Vermont
Citation124 Vt. 346,205 A.2d 552
Docket NumberNo. 1978,1978
PartiesNash JOHN v. A. Charles FERNANDEZ.
Decision Date01 December 1964

Davis, Martin & Free, Barre, for plaintiff.

Theriault & Joslin, Montpelier, for defendant.


SHANGRAW, Justice.

This is a suit for injuries alleged to have been sustained by the plaintiff on January 20, 1960, when, as a business visitor, he slipped and fell on restaurant premises owned by the defendant. At the time of the accident the premises were leased to Octave C. Loso and Almon Thorn and operated by them as a restaurant under the style name of Miss Montpelier Diner. A few days previous to the bringing of this action the plaintiff had brought a separate action against the lessees for the same alleged injuries. The allegations in the two actions were substantially the same. Generally, it was alleged that the defendants had failed to keep the entranceway and stairway to the premises in a reasonably safe condition for use by business visitors.

The two suits were entered in the Washington County Court. In this action against the defendant A. Charles Fernandez the plaintiff moved for permission to add the lessees, Octave Loso and Almon Thorn as parties defendant in that action, pursuant to the provisions of 12 V.S.A. §§ 1071a and 1071b. The plaintiff also asked leave to amend his complaint by substituting the word 'defendants' for the word 'defendant' in each and every place that the latter appeared in the complaint. The motions were denied.

Upon request of the plaintiff, the court in its discretion passed the cause to this Court under the provisions of 12 V.S.A. §§ 2386 for a determination of the questions of law sought to be reviewed. The questions set forth for review pursuant to the Rules of Practice in Supreme Court, Title 12 App. 1, Rule 2A, and before us for consideration are as follows:

'(1) Was the Washington County Court correct in denying the Plaintiff's Motion to add as party defendants in the case of Nash John vs. A. Charles Fernandez, Octave C. Loso and Almon Thorn, co-partners in trade and doing business under the firm name and style of Miss Montpelier Diner?

'(2) Was the Washington County Court correct in denying plaintiff's motion to amend his complaint in the case of Nash John vs. A. Charles Fernandez?'

12 V.S.A. § 1071a entitled 'Joinder of parties', insofar as here partinent provides:

'* * * All persons may be joined in one action as defendants against whom there is asserted jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and as to whom any question of law or fact common to all of them will arise in the action. * * *'

Section 1071b entitled 'Nonjoinder and misjoinder' provides as follows:

'Nonjoinder and misjoinder of parties are not grounds for dismissal of an action. Parties may be dropped or added at any stage of the action by the court on motion of any party or of the court's initiative upon such terms as are just. Any claim against a party may be severed and pursued separately.'

Section 1071a was derived from Rule 20(a) and section 1071b from Rule 21 of the Federal Rules of Civil Procedure. 28 U.S.C.A. A comparison of these Federal rules with the above quoted sections of our statutes reveals that in all material respects they are identical.

The above statutes were enacted in 1959 and this Court has had no opportunity to pass upon their interpretation. Therefore, we seek outside aid concerning their counterparts--that is Federal Rules 20(a) and 21. Barron & Holtzoff, Federal Practice and Procedure, Rules Edition, Vol. 2, § 531, at pages 177 and 178, in referring to Rule 20(a) states: 'The permissive joinder rule is procedural in nature, and is designed to remove the common law obstacles to joinder, without affecting the substantive rights of the parties. * * * The rule is also intended to promote trial convenience, prevent a multiplicity of suits, and expedite the final determination of litigation by inclusion in one suit of all parties directly interested in the controversy despite technical objections previously existing in many situations * * *. The rule should therefore be liberally construed and applied in practice when consistent with convenience in the disposition of actions.'

Again referring to Barron & Holtzoff, Federal Practice and Procedure, supra, § 543, at page 223, in referring to Federal Rule 21, states: 'The granting or denial of a motion to bring in additional parties, or to drop a party to the action, is not a matter of right, but rather one of discretion, and the order may not be disturbed unless abuse of discretion is shown.' Citing Curacao Trading Co. v. Federal Ins., 137 F.2d 911 (2d Cir.1943), cert. denied, 321 U.S. 765, 64 S.Ct. 521, 88 L.Ed. 1061. See 39 Am.Jur. Parties, § 85, pg. 956. A wide discretion is vested in a trial court relative to joinder of parties. Meyercheck v. Givens, 180 F.2d 221 (7th Cir.1950).

The controlling question here for determination is whether the trial court abused its discretion in denying plaintiff's motion to add the lessees as parties defendant in this action. This motion was addressed to the discretion of the trial court and its action thereon is not reviewable, unless it appears that it withheld or abused its discretion. In considering this question we are bound to indulge every reasonable presumption in favor of the ruling below. Towle v. St. Albans Publishing Co....

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13 cases
  • Pond v. Carter
    • United States
    • Vermont Supreme Court
    • April 4, 1967
    ...38, 50 A.2d 762. Unless it appears that the court withheld or abused its discretion, the question is not reviewable. John v. Fernandez, 124 Vt. 346, 348, 205 A.2d 552. No abuse of discretion has been demonstrated by the defendant. The exception is The defendant duly made ten written request......
  • State v. Morrill
    • United States
    • Vermont Supreme Court
    • April 1, 1969
    ...discretion must be shown. And this court is bound to indulge every reasonable presumption in favor of the ruling below. John v. Fernandez, 124 Vt. 346, 348, 205 A.2d 552. As shown by the record, the jury reached their verdict one-half hour after receiving the case from the court. The respon......
  • State v. Ovitt, 491
    • United States
    • Vermont Supreme Court
    • April 4, 1967
    ...with section 2386 of Title 12 V.S.A. The motion was denied. This was a discretionary ruling and no error appears. John v. Fernandez, 124 Vt. 346, 205 A.2d 552. The case proceeded to trial and following the conclusion of the evidence, the presiding judge in his charge made the following comm......
  • Bevins v. King
    • United States
    • Vermont Supreme Court
    • July 26, 1983
    ...that the court withheld or abused its discretion. In re Lunde Construction Co., 139 Vt. 376, 428 A.2d 1140 (1981); John v. Fernandez, 124 Vt. 346, 205 A.2d 552 (1964). When there is no prejudice to the objecting party, and when the proposed amendment is not obviously frivolous nor made as a......
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