Raymond v. Capobianco
| Decision Date | 07 May 1935 |
| Citation | 178 A. 896 |
| Parties | RAYMOND v. CAPOBIANCO. |
| Court | Vermont Supreme Court |
Exceptions from Windsor County Court; Alfred L. Sherman, Judge.
Action by George W. Raymond against Salvatore Capobianco, wherein plaintiff filed demurrers to defendant's pleas. Rulings overruling demurrers and judgment for defendant, and plaintiff brings exceptions.
Judgment affirmed.
Argued before POWERS, C. J., MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Superior Judge.
Stickney, Sargent & Chase, of Ludlow, for plaintiff.
Fenton, Wing & Morse, of Rutland, for defendant.
On September 8, 1932, the plaintiff brought an action of tort against Salvatore Costa, returnable before Windsor county court, alleging therein that on the date of the writ the defendant therein operated a certain Autocar truck over the public highway leading from Ludlow to the city of Rutland, that at Mount Holly the plaintiff owned and operated a certain Packard sedan, and at that time and place said Costa negligently, etc., operated said Autocar so that the same ran into and against plaintiff's car, whereby he was injured and his car was damaged.
Said cause was tried by jury at the June term, 1933, of Windsor county court. A verdict was rendered for the plaintiff for $2,100 for damages to his car, and for $230 for personal injuries suffered by him. Final judgment was rendered on the verdict, and the judgment is in full force.
On November 28, 1933, the plaintiff brought an action of tort, the case before us, against the defendant on the same state of facts involved in the case against Costa, except that in this suit it is alleged that the defendant owned the Autocar and that it was operated by said Costa, agent and servant of the defendant, and, in substance, that due to the negligence, etc., of said agent and servant the accident in question occurred. The same elements of damage are alleged in this suit as were alleged in the prior suit.
The defendant was not present at the time of the accident, and he is liable, if liable at all, under the rule of respondeat superior.
The defendant has filed three pleas in bar. The first plea sets forth, in substance, the fact of the former trial and the verdict and judgment thereon, and it is alleged that the same was then and now is in full force and effect, and not reversed, annulled, nor set aside; that no claim is asserted in the complaint that defendant was present or participated in the accident, or was in any wise negligent in respect thereof except by reason of the negligence of his said servant or agent; and that said defendant is in privity with said Costa.
In the second plea it is alleged, in sub stance, that the controlling facts and issues in this suit were tried and adjudicated in the former suit against Costa; that the accident described in both and each of the complaints is the same and the identical accident; that no claim is made in the complaint that the defendant herein was present at the time and place of the alleged accident, or that he participated therein, or was in any wise negligent in respect thereto except by reason of his said servant and agent; that the defendant's liability is predicated solely on the doctrine of respondeat superior, and not otherwise; that, the extent and value in money of the damage to plaintiff's car and of his personal injuries having been determined, fixed, and liquidated by the verdict and judgment in the prior suit, and as such verdict and judgment are now in full force and effect, the plaintiff herein is estopped from further litigating said facts and issues.
In the third plea the same facts concerning the accident, etc., are alleged, and it is further alleged therein that the plaintiff is now debarred from maintaining this action because he has exercised an election, and has elected to and has maintained and enforced an action identical with the one herein against said Costa, the defendant's agent or servant.
The plaintiff filed a demurrer to each of the pleas. The grounds of the demurrer to the first plea are: "That this suit is an action of tort to recover damages by the plaintiff sustained by and through the negligent acts of the defendant, and that the facts by the defendant in his plea set forth, show and only show that both and each the defendant and his servant and agent, Salvatore Costa, are answerable to the plaintiff for the damages by him suffered on the 8th day of September, 1932, from the injuries by him then and there received by the acts of the defendant through and by the servant and agent, done and performed, as in the plaintiff's declaration is alleged, and in such case the liability of the defendant and of the said Salvatore Costa is both joint and several and the plaintiff has a right of action against each of the two until his damages are satisfied by either or both."
The grounds of the demurrers to the second and third pleas are identical with those set forth in the demurrer to the first plea, except that in the demurrer to the third plea the following words are added: "and that the said plaintiff by bringing his said suit against the said Salvatore Costa made no election and is not now barred from maintaining this action for the reasons aforesaid."
The court overruled each demurrer and adjudged each of the defendant's three pleas in bar sufficient and thereupon rendered judgment for the defendant. The plaintiff took and was allowed an exception to each of the several rulings of the court and to the judgment.
No claim is made by the plaintiff that this action can be maintained against the defendant on any ground other than that the defendant and his servant were joint tortfeasors and therefore jointly and severally liable. If they were joint tort-feasors, the action can be maintained under the rule that joint tort-feasors are jointly and severally liable to the injured party. If they were not joint tort-feasors, they are only liable severally, and, in that event, the third plea in bar sets forth a good defense, namely, that the plaintiff elected to proceed against the servant and is therefore barred from maintaining this action against the defendant The only question presented by the demurrers is whether a master, who is made liable for the negligent or wrongful act of his servant solely upon the ground of their relationship, under the doctrine of respondeat superior, and not by reason of any personal participation in the negligent or wrongful act by his presence or personal direction, is a joint tortfeasor so that he may be sued jointly with the servant, or severally for the negligent or wrongful act of the servant.
While a joint action has been maintained in our courts against a master and his servant for injuries caused by the negligent or wrongful act of the servant while acting within the scope of his employment, and the master was liable solely under the doctrine of respondeat superior (see Jewett v, Pudlo, 106 Vt. 249, 172 A. 423; Ronan v. J. G. Turnbull Co., 99 Vt. 280, 131 A. 788), the right of a plaintiff to maintain such an action has not before been properly raised in this court.
In Burnett v. Larrow, 91 Vt. 190, 99 A. 729 the defendants attempted to raise the question in the court below by an exception to the overruling of their motions for a verdict, to dismiss, and for a nonsuit, based upon the alleged misjoinder. This court held that the exception did not bring the question before it; but it was said in the opinion that the defendants could have saved the question by moving that the plaintiff be required to elect which defendant she would proceed against.
This question has been passed upon in many jurisdictions, but the decisions are in direct conflict. In some jurisdictions it is held that, although the master does not participate in the negligent or wrongful act of the servant, and he is liable only under the doctrine of respondeat superior, the action may be joint against the master and his servant or may be separate against either. Southern Ry. Co. v. Grizzle, 124 Ga. 735, 53 S. E. 244, 110 Am. St. Rep. 191; Wright v. Compton, 53 Ind. 337; Indiana Nitroglycerin, etc., Co. v. Lippincott Glass Co. (Ind. App.) 72 N. E. 183; Chesapeake, etc., R. R. Co. v. Dixon's Adm'x, 104 Ky. 608, 47 S. W. 615; Whalen v. Pennsylvania R. R. Co., 73 N. J. Law, 192, 63 A. 993; Phelps v. Wait, 30 N. Y. 78; Schumpert v. Southern Ry. Co., 65 S. C. 332, 43 S. E. 813, 95 Am. St. Rep. 802; Howe v. Northern Pacific R. R. Co., 30 Wash. 569, 70 P. 1100, 60 L. R. A. 949; Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293; Mayberry v. Northern Pacific R. R. Co., 100 Minn. 79, 110 N. W. 356, 12 L. R. A. (N. S.) 675, 10 Ann. Cas. 754.
The doctrine of these decisions is stated in ...
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