Petrus v. Robbins
| Decision Date | 08 September 1954 |
| Citation | 83 S.E.2d 408,196 Va. 322 |
| Parties | EDNA E. PETRUS v. CHARLES ROBBINS |
| Court | Virginia Supreme Court |
Louis Koutoulakos and Paul Varoutsos, for the plaintiff in error.
Boothe, Dudley, Koontz & Boothe, for the defendant in error.
UPON REHEARING
This litigation arose out of an accident that occurred when an automobile titled in the name of Michael Petrus and driven by his wife, Edna E. Petrus, was involved in a collision with an automobile owned and operated by Charles Robbins. Both vehicles were damaged, and Edna E. Petrus, the sole occupant of the car driven by her, alleged that she sustained personal injuries.
Charles Robbins, a non-resident of Virginia, sued Edna E. Petrus in the Civil and Police Court of the city of Alexandria for $252.90, alleged damages to his automobile. Process was served on Edna E. Petrus on June 9, 1952, and on June 18, 1952, her counsel entered an appearance, and the case was set for trial on July 3, 1952.
On July 2, 1952, Edna E. Petrus filed a written 'answer and counterclaim' in the action pending in the civil and police court. She denied that she had been negligent and asked judgment against Robbins for $307.70, 'for damages done to her vehicle and for loss of use.'
On June 30, 1952, Edna E. Petrus and her husband, Michael Petrus, instituted action against Charles Robbins in the Corporation Court of the city of Alexandria. Process was served on the Commissioner of Motor Vehicles on July 2, 1952, and on that date a copy of the motion for judgment was mailed to Robbins at his home in New Jersey. In this motion for judgment plaintiffs alleged that the collision was due to Robbins' negligence, and sought recovery of $20,000. Personal injuries to Edna E. Petrus and property damage were asserted, the property damage being set at $207.70.
On July 3, 1952, the action pending in the civil and police court was tried, and it does not appear that Robbins was then aware of the pendency of the suit that had been filed in the corporation court. Before any evidence was heard in the civil and police court, counsel stipulated and advised the court 'that the bills for automobile damages shall be the amount of the damages to the automobiles. ' After Robbins rested his case, Edna E. Petrus testified in her own behalf as to how the accident happened and as to who was the owner of the automobile that she was driving. Her testimony as to the ownership of the car was as follows:
* * *
When it was disclosed by her testimony that she did not own the automobile, and there being no testimony that she had suffered any pecuniary loss because of being deprived of its use, counsel for Robbins moved that her counterclaim be dismissed. No ruling was made on that motion, but the court thereafter heard the testimony of Lawrence W. Griffin, a witness to the accident called by Edna E. Petrus, who testified as to how the collision occurred. Edna E. Petrus was then recalled by her counsel, and the following examination by counsel and the court was had, and the following statement and ruling were made by the court:
'Q. In your conversation with the other driver after the accident, did you make any statement to him as to whether you saw him or not?
'A. Well, we didn't go into details but I said to him, 'You were on top of me before I saw you.' But he made that sound as if I didn't see him at all.
The counterclaim filed by Edna E. Petrus was thereupon endorsed by the judge 'Counterclaim denied,' and he entered judgment on Robbins' warrant in favor of Edna E. Petrus, the defendant, and the proceedings were terminated without recovery of damages by either party. No appeal was taken by either party, and the judgment has become final.
After Robbins' motion to dismiss was made, which was not acted upon, the court heard further evidence concerning how the accident happened and denied recovery to both parties for the reason stated. The court having so adjudicated on the merits of the claims, no bills for repair of the cars were filed nor any evidence offered as to the amount of damages sustained by either vehicle.
On July 18, 1952, Charles Robbins filed a motion for a bill of particulars in the action pending in the corporation court, in which both Michael Petrus and Edna E. Petrus were then plaintiffs. He asked that their claims be respectively identified so that an intelligent answer to each might be given. On August 7, 1952, Michael Petrus and Edna E. Petrus filed a bill of particulars in which it is stated that the claim of Michael Petrus was for 'damages to his automobile' in the sum of $207.70, and that the claim of Edna E. Petrus was damages for personal injuries in the amount of $19,700. In the bill of particulars it is also asserted that 'Michael Petrus was the owner of the automobile at the time of the accident,' and that 'There was a gratuitous bailment.' It is thus definitely asserted that the car was owned by Michael Petrus but Edna E. Petrus was operating it as a gratuitous bailee when it was damaged.
On October 12, 1952, Charles Robbins filed a plea of res adjudicata and estoppel of record in the action in the corporation court. The plea set up the judgment rendered July 3, 1952, in the civil and police court, and asserted that the finding and judgment of that court on the respective claims of the parties necessarily decided that both litigants were guilty of negligence which contributed to the collision. The plea then asserted that such finding and judgment precluded Edna E. Petrus from maintaining her action for personal injuries and estopped Michael Petrus from asserting ownership of the vehicle that she was driving, and thus precluded both plaintiffs from maintaining their actions against Charles Robbins.
On September 15, 1952, an amended motion for judgment was filed by Edna E. Petrus, which dropped Michael Petrus as a party plaintiff and sought recovery for personal injuries only. No order was entered by the court formally filing this amended motion for judgment, yet it was treated by the parties as regularly filed and the cause was therefore proceeded in with Edna E. Petrus as the sole party plaintiff.
On December 10, 1952, the court sustained the plea of res adjudicata and estoppel of record and entered a final order dismissing the motion for judgment.
At the instance of Edna E. Petrus we reversed that judgment on March 15, 1954, and awarded her a new trial, 195 Va. 861, 80 S.E. (2d) 543. Robbins thereupon filed a petition for rehearing, which was granted, and the case is now before us for the second time.
Edna E. Petrus contends that the judgment of the civil and police court does not preclude her from maintaining this action because the judgment of the civil and police court, a court of limited jurisdiction and not a court of record, cannot be invoked as a bar to her claim; that the amount of damages asserted for personal injuries exceeds the jurisdictional limit of that court; that her present claim of damages for personal injuries is a separate cause of action other than that asserted in her counterclaim; and that she was not the owner of the automobile, and thus had no cause of action for its damage.
No contention was made by either party in the briefs that Edna E. Petrus was a bailee of the car, nor did counsel make that contention in argument. Nowhere in the briefs are the words bailee, bailor or bailment to be found. Nor was our attention otherwise directed to that phase of the record, and therefore it was not considered or adverted to in the original opinion. However, upon examination of the bill of particulars, which is a part of the printed record, it is disclosed that both Edna E. Petrus and Michael Petrus asserted that the car was in the possession of Edna E. Petrus as bailee.
That statement in the pleading, if sustained by proof, goes to the merits of plaintiff's present claim and strikes at her right to maintain this action. If the evidence sustains the admission and assertion, and if the fact that Edna E. Petrus was a bailee of the car prevents and estops her from maintaining this action, then the rights of the parties in that respect should be so adjudicated and determined on this rehearing. Trust Co. of Norfolk, Va., et al. v. Commonwealth, 151 Va. 883, at 901, 141 S.E. 825; 3 Am. Jur., Appeal and Error, § 810, p. 352.
From the statements made by Edna E. Petrus and Michael Petrus in the bill of particulars, and from the testimony given by the former at the trial in the civil and police court, it is conclusively established that though Michael Petrus was the owner of the automobile, his wife had possession of the vehicle as a gratuitous bailee at the time of the accident. The stipulation of counsel also shows that the only property damage sustained was that inflicted upon the car, and no pecuniary loss was shown to have resulted to Edna E. Petrus because of loss of use of the vehicle.
These facts being true, the dominant questions are: Was she entitled to maintain the action in the civil and police court for the damages to the car that she was operating as a bailee, and if so, does the judgment of that court, finding her guilty of negligence that efficiently contributed to the accident, bar her recovery in this action?
It is now settled law that a bailee in possession may sue for and recover judgment for the wrongful damage or destruction...
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