Sibson v. Robert's Exp., Inc.

• Decision Date: 29 June 1962
• Citation: 182 A.2d 449,104 N.H. 192
• Parties: Howard W. SIBSON v. ROBERT'S EXPRESS, INC., et al.
• Court: New Hampshire Supreme Court

Page 449

182 A.2d 449

104 N.H. 192

Howard W. SIBSON v. ROBERT'S EXPRESS, INC., et al.

Supreme Court of New Hampshire.

Argued May 1, 1962.

Decided June 29, 1962.

Devine, Milliment & McDonough and Bartram C. Branch, Manchester, for defendant Robert's Express, Inc.

Boynton, Waldron & Dill, Portsmouth, and Jeremy Waldron, J., Portsmouth, for defendants Depew.

DUNCAN, Justice.

By the great weight of authority in this country, the plaintiff's causes of action arising out of the accident were single causes, even though he suffered both personal injury and property damage simultaneously as a result of the defendants' negligence. Annot. 62 A.L.R.2d 977, 982, and cases cited. 2 Freeman on Judgments (5th ed.) s. 613; Restatement, Judgments, s. 62, comment e, illustration 7; Dearden v. Hey, 304 Mass. 659, 24 N.E.2d 644, 127 A.L.R. 1077. Likewise by the weight of authority, such a cause of action may not be made the subject of more than one suit; and recovery of judgment for some elements of damage caused bars recovery for other elements of damage for which recovery might have been sought, but was not. Dearden v. Hey, supra; 2 Moore's Federal Practice (2d ed.) s. 2.06, p. 378.

This is the settled law of this jurisdiction. 'An attempt by stating only a part, and later bringing another suit upon another part, is an endeavor to split a single cause of action. As before stated, the rule in King v. Chase, supra, was adopted to prevent such procedure.' Chesley v. Dunklee, 77 N.H. 263, 267, 90 A. 965, 967. 'The former judgment 'concludes the parties, not only as to every matter which was offered and received to sustain or defeat the suit, but also as to any other matter which might have been offered for that purpose.' Metcalf v. Gilmore, 63 N.H. 174, 189.' Id., 267, 90 A. 967.

It is obvious that under this rule the plaintiff could not maintain actions to recover his property damage after judgment in his suits for damages for personal injuries. Such actions would be barred by the rule of res adjudicata.

The vital question is whether the plaintiff's collision insurer can now maintain its claim based upon assignment of and subrogation to the plaintiff's rights. In some jurisdictions which subscribe to the majority rule against splitting a cause of action, an exception is recognized when an insurer acquires a claim for property damage in this fashion. See Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656; Annot. 62 A.L.R.2d supra, 989. Cf. Hoosier Casualty Co. v. Davis, 172 Ohio St. 5, 173 N.E.2d 349. Other jurisdictions recognize no such exception. Moultrop v. Gorham, 113 Vt. 317, 34 A.2d 96; Coniglio v. Wyoming Valley Fire Insurance Co., 337 Mich. 38, 59 N.W.2d 74; General Accident Fire & Assur. Corp. v. Sircey, 354 Mich. 478, 93 N.W.2d 315; Farmers Ins. Exchange v. Arlt, N.D., 61 N.W.2d 429. We think that under the practice prevailing in this jurisdiction the view illustrated by the Moultrop case, supra, should be controlling, and that 'the insurer's right of recovery was limited to a right to intervene in the first suit * * *' brought by the insured. Moultrop v. Gorham, 113 Vt. 317, 319, 34 A.2d 96, 98.

We therefore hold that Travelers Fire Insurance Company is barred from prosecuting its claim. In reliance upon the rule of Chesley v. Dunklee, supra, the defendants were entitled to assume that any claim based upon the plaintiff's rights would be presented in his pending actions. Although they had notice through the pretrial order that 'his insurance carrier' had a claim for property damage, the defendants should not be charged with waiver of their right to object to a splitting of causes of action against them upon the ground that they did not seek to have the insurer made party to the pending actions. See Perkins v. Exeter Associates, 100 N.H. 247, 123 A.2d 825. On the contrary, responsibility for seasonable presentation of its claim ought to rest upon the insurer itself, since it had ample notice of the pending actions but chose to withhold its claim for later presentation. Kidd v. Hillman, 14 Cal.App.2d 507, 58 A.2d 662. On the record before us it could not be found that the...