Jones v. Valisi

• Decision Date: 11 February 1941
• Parties: LORRAINE JONES v. OSWALDO VALISI
• Court: Vermont Supreme Court

18 A.2d 179

111 Vt. 481

LORRAINE JONES v. OSWALDO VALISI

Supreme Court of Vermont

February 11, 1941

January Term, 1941.

Negligence (Automobile).---1. Master and Servant Not Jointly and Severally Liable.---2. Liability of Master Does Not Conclude Action Against Servant.---3. Plaintiff's Right Against Principal or Agent Determined by Unsuccessful Action Against Either.---4. Failure of Action Against Master Bars Action Against Servant.

1. When a master is liable for the actions of his servant only under the doctrine of respondent superior, the master and servant are not joint tort-feasors and are not jointly and severally liable and an injured party may elect to recover from the master or from the servant, not both.

2. The determination of liability of a master to an injured party does not conclude the servant in an action brought by the master for reimbursement.

3. Although the general rule is that a person can not take the benefit of a judgment as an estoppel unless he would be prejudiced by a contrary decision, where the relations between two parties are analogous to that of principal and agent a defendant's judgment in favor of either rendered upon a ground equally applicable to both is conclusive of a plaintiff's right against the other.

4. Although a plaintiff, had he sued a servant, might have introduced admissions of liability which would not be admissible in an action brought against the master, he can not, upon failure of the latter action, bring suit against the servant.

CASE. Action to recover for injuries resulting from an accident between an automobile in which the plaintiff was riding and a truck owned by Gay's Express, Inc., and operated by the defendant. Defendant pleaded in bar a prior action brought by this plaintiff, through a next friend, against Gay's Express, Inc. (See Jones v. Gay's Express, Inc., 110 Vt. 531, 9 A.2d 121). Plaintiff demurred to the answer. At April Term, 1939, Franklin County Court, Blackmer, J presiding, demurrer overruled and plaintiff brings exceptions. The opinion states the case.

Judgment overruling the demurrer affirmed, and cause remanded.

Sylvester & Ready for plaintiff.

McFeeters & Kissane for defendant.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.

OPINION

SHERBURNE

This is an action for negligence, and results from a collision between the automobile in which the plaintiff was riding as a passenger and a truck owned by Gay's Express, Inc. and operated by the defendant. In his answer the defendant avers that the plaintiff, prior to the bringing of the suit brought a suit against Gay's Express, Inc., in which she sought to recover damages resulting from this same collision, and in which she alleged that the truck was negligently operated by its servant; that this defendant was the servant of the defendant in the former action and was acting within the scope of his employment; that the acts complained of in this suit are the same acts complained of in the former case; that the issues litigated and determined in the former action were whether the defendant in that case was negligent and, if so, whether such negligence was a proximate cause of the plaintiff's injuries; that judgment was rendered below in that action in favor of the plaintiff, but reversed in this Court, and judgment was here entered for the defendant to recover its costs; and that consequently the two causes of action are substantially identical, and that the judgment in the former case is a bar to the present action. The plaintiff demurred to this answer and gave as reasons that the former action is not a bar; that she made no election when she proceeded against the master in the former case; that the liability involved in this and the former suit is a several liability, and there being no recovery in the former suit she is not barred from pursuing her remedy against the servant; and that admission of negligence of the defendant having been held inadmissible against the master, the plaintiff is not now barred from maintaining her action against the defendant to determine his negligence. The demurrer was overruled, subject to plaintiff's exceptions, and the cause has been brought here before final judgment.

In the former case, Jones v. Gay's Express, Inc., 110 Vt. 531, 9 A.2d 121, all the elements necessary to a recovery were made out except the negligence of the defendant's servant. The only evidence offered to show his negligence consisted of his admissions which we held to be inadmissible in a suit against the master. As the defendant in that case, if liable at all, was liable under the rule of respondeat superior does a failure to prove that its servant was negligent in that case bar a suit against the servant upon the same charge of negligence under these circumstances?

In a case where the master is liable only under the rule of respondeat superior, the master is not the wrong doer, but the law gives to the injured party the right to elect to treat the master and servant as one and recover from the master, or to disregard their relation and recover from the servant. He can treat the servant's act as that of the master but not as that of the master and servant. They are not joint tort-feasors, and therefore jointly and severally liable. Raymond v. Capobianco, 107 Vt. 295, 303, 178 A. 896, 98 A.L.R. 1051.

Had the former case gone against the master the defendant as its servant would not have been concluded thereby in a suit against him by the master for reimbursement...