Moultroup v. Gorham.

• Decision Date: 05 October 1943
• Docket Number: No. 466.,466.
• Citation: 34 A.2d 96
• Court: Vermont Supreme Court
• Parties: MOULTROUP v. GORHAM.

34 A.2d 96

MOULTROUP

v.GORHAM.

No. 466.

Supreme Court of Vermont.

Oct. 5, 1943.

Exceptions from Essex County Court; Henry F. Black, Presiding Judge.

Action by Annie Moultroup, administratrix of the estate of Henry Moultroup, deceased, for the benefit of the General Exchange Insurance Corporation, as subrogee, against Willis Gorham for damage to decedent's property from alleged negligence of defendant in operation of his automobile. From a judgment sustaining plaintiff's demurrer to defendant's plea in bar, defendant brings exceptions.

Reversed, plea in bar held sufficient and case dismissed.

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

Arthur L. Graves and R. Lawlor Cooper, both of St. Johnsbury, for plaintiff.

Clifton G. Parker, of Morrisville, and James B. Campbell, of St. Johnsbury, for defendant.

STURTEVANT, Justice.

This is a tort action brought by the plaintiff as administratrix of the estate of Henry Moultroup. The suit is for the benefit of the General Exchange Insurance Corporation as subrogee. Recovery is sought for damage to the intestate's property resulting from the alleged negligence of the defendant in the operation of his automobile. The defendant pleaded the general issue and also a prior judgment between the parties in bar of this action. The plaintiff joined issue as to the plea of the general issue and demurred to the plea in bar. Upon hearing the demurrer was sustained and the plea in bar adjudged insufficient. The defendant brings the case here, before final judgment under the provisions of P.L. 2072, upon exceptions saved to that ruling of the court below.

The following material facts appear from the record. On November 28, 1941, Henry Moultroup was riding in his automobile in the town of Glover and his car was in collision with an automobile then being operated by the defendant. Moultroup's automobile was damaged in that collision and he received personal injuries from which he died within a few hours. On December 5, 1941, the plaintiff, as administratrix of the decedent's estate, brought a suit against the defendant in Essex County Court seeking to recover for personal injuries to the decedent and also for the damage to his automobile. The declaration also contained a count for damages suffered by the decedent's next of kin. All of the damages mentioned were alleged to have resulted from the defendant's negligent operation of his automobile. The suit was tried at the April term, 1942. At the trial the plaintiff struck from her declaration the count alleging damage to decedent's automobile. With the declaration as thus amended, the suit proceeded and the plaintiff had a verdict and judgment which judgment was fully paid and satisfied by the defendant before the present case was instituted.

In her declaration in the case at bar, the plaintiff alleges that the issue of the defendant's liability here is identical with the issue of his liability in the former suit and that this question having there been determined in her favor, the defendant is thereby estopped from denying his liability in the present action. The declaration also contains the following allegations: “*** the plaintiff brings this action, for the use and benefit of General Exchange Insurance Corporation, of Portland, Maine, which is vested with all the rights and causes of action of the said plaintiff, Annie Moultroup, as administratrix of the estate of Henry Moultroup against the defendant Willis Gorham, for damages to said Pontiac sedan automobile, and the loss and destruction thereof, by virtue of a subrogation agreement entered into between the said plaintiff and the said General Exchange Insurance Corporation on the twenty-fourth day of December, 1941.”

The terms of the subrogation agreement are not stated in the record. However, when the case was argued the following additional facts appeared without question. At the time of the accident, the decedent held an insurance policy covering the damage to his car. This policy was issued by the General Exchange Insurance Corporation, hereinafter called the insurer. On or about December 24, 1941, the insurer settled with the plaintiff for the car damage thus bringing about its alleged rights of subrogation.

It is agreed that the same act of the defendant caused both the personal injury to the decedent and the damage to his car. It is an inflexible rule that all damages resulting from an entire and indivisible cause of action must be assessed in one proceeding, whether arising from contract or tort. A recovery for one part will bar a subsequent action for the whole, the residue, or another part. Louden Machinery Co. v. Day, 104 Vt. 520, 524, 162 A. 370, and cases cited. The reason for the rule lies in the necessity for preventing vexatious and oppressive litigation. Louden Machinery Co. v. Day, 104 Vt. at page 524, 162 A. 370. In case of torts, each trespass, or conversion, or fraud gives a right of action, and but a single one, however numerous the items of wrong or damage may be. Morey v. King, Fuller & Co., 51 Vt. 383, 387.

The plaintiff recognizes the general rule as above stated but contends that here an exception to the rule is justified because of the need for different judgments to protect the different rights of the parties interested. To dispose of this contention it is necessary to review the facts and to note how the rights of the parties interested are affected by them.

When the plaintiff brought her first suit, she was thereby seeking to recover for both personal injuries to the decedent and for damage to his automobile. In December, 1941, soon after that suit was brought, the insurer settled with the...