Stark v. Crowell

• Decision Date: 06 January 1953
• Docket Number: No. 1100,1100
• Citation: 117 Vt. 413,94 A.2d 585
• Parties: STARK v. CROWELL et al.
• Court: Vermont Supreme Court

Page 585

94 A.2d 585

117 Vt. 413

STARK v. CROWELL et al.

No. 1100.

Supreme Court of Vermont.

Jan. 6, 1953.

Barber & Barber, Brattleboro, for plaintiff.

Osmer C. Fitts and Paul N. Olson, Brattleboro, for defendants.

Before SHERBURNE, C. J., and JEFFORDS, ADAMS, CLEARY and CUSHING, JJ.

SHERBURNE, Chief Justice.

On May 8, 1951, the plaintiff brought an action of tort against Clifford Crowell, one of the defendants in this cause, for personal injuries alleged to have been received in an automobile accident on February 28, 1949. The complaint sets forth that the plaintiff was a passenger for hire in a certain taxi maintained by the defendant Crowell, doing business under the name and style of Paramount Cab, and that the taxi was then being operated by one Philip Bacon in the scope of his employment under the legal control of the defendant Crowell, and alleges that said Bacon negligently operated said taxi and thereby proximately caused the injuries to the plaintiff. The cause was duly entered in Windham county court, and Osmer C. Fitts, Esq., entered a general appearance for the defendant, and issue was joined. After being set for trial at the September Term, 1951, the cause was continued upon the motion of the defendant supported by the defendant's affidavit which set forth that said Bacon was a material witness and was unable to attend because absent in the military service. On February 6, 1952, the plaintiff by her attorney signed a written notice of discontinuance of this cause, and an attested copy thereof was served upon the defendant Crowell, another attested copy thereof was filed with the clerk of Windham county court and a further attested copy was left with such clerk for defendant's attorney, all by the sheriff on the same day. On the same day, but subsequent to the service of such notice of discontinuance, the plaintiff brought the action here in question. The declaration in this action is in all respects like that in the prior action except that here, instead of a master and servant relation between Crowell and Bacon, it sets forth that the plaintiff was a passenger for hire in a certain taxi maintained and operated under the name and style of Paramount Cab, that the Paramount Cab was represented in a public manner by the defendants as a partnership composed of Crowell and Bacon, d/b/a Paramount Cab, that the taxi was then registered to Crowell, that there had been issued a permit upon such vehicle to Crowell and Bacon d/b/a Paramount Cab for the transportation for hire pursuant to the provisions of V.S. 47, § 10,183, which certificate was in full force and effect on February 28, 1949, and that at the time of the accident the taxi was being operated by Bacon pursuant to the actual or apparent scope of the partnership business. The declaration also sets forth that on February 28, 1949, there was in force and effect a motor vehicle liability policy issued by the Peerless Casualty Company pursuant to V.S. 47, § 10,180, and related sections, that the named insured therein were Crowell and Bacon d/b/a Paramount Cab, and that the Peerless Casualty Company is made a defendant therein by virtue of the provisions of V.S. 47, § 10,181. This latter cause was duly entered in Windham county court, and the defendants each seasonably appeared specially, and filed separate pleas in abatement, setting forth that the prior action brought on May 8, 1951, remains upon the court docket at issue, not terminated by order of court, and so undetermined; that the party plaintiff and the defendant Crowell are the same and the cause of action is the same, and that the Peerless Casualty Company was joined as a defendant solely by reason of V.S. 47, § 10,181 and has no interest except as an insurer of Crowell, and is not a principal party ex delicto.

Subsequently to the filing of the pleas in abatement the cause came on for hearing and the court made findings setting forth the matters above mentioned, and that the first cause still remains on the docket, that no further entry has been made, and that no action has been taken relative to taxation of costs and neither party has made any motion in relation thereto. Thereafter the pleas in abatement of the two defendants were adjudged insufficient, and the plaintiffs' motion for judgment in chief was granted, all subject to the exceptions of both defendants, and the cause was passed to this Court before final judgment.

The questions raised by the briefs of the parties are: 1. Is the cause of action in the two actions the same? 2. Are the parties the same? 3. Is the first action still pending? 4. Was the court's order erroneous? These questions will be discussed in this order.

Is the cause of action the same? As we have noted, except that in one action the liability of defendant Crowell is predicated upon a master and servant relation between him and Bacon, while in the other liability is predicated upon a partnership relation between them by estoppel, the two declarations are in all respects alike. There are like narratives of the accident, and the same allegations of duty and breach of duty upon the part of defendant Crowell, and the same statements of damages.

In her brief the plaintiff states that in the second action liability is predicated upon the Uniform Partnership Act, V.S. 47, § 6077, which provides for liability by estoppel, and §§ 6074 and 6076, providing that partners are jointly and severally liable for torts within the scope of the partnership venture. She claims that the causes of action in the two suits are different, because in the first there is a severable liability calling for an election of remedies between master and servant, which is unlike the joint and severable liability in the second suit.

Since the plaintiff has elected to hold Crowell severally liable there is no merit to this claim of distinction. We need not decide what the result would have been had she sued Crowell and Bacon jointly.

The causes of action are the same where the relief sought in the second section may be fully obtained in the prior action. 1 C.J.S. Abatement and Revival, § 43. The parties to a judgment are concluded thereby, not only upon all issues which were actually tried, but upon all issues which might have been tried; so that a new suit for the same cause of action cannot be maintained or defended on grounds which might have been tried and determined in the former suit. Johnson v. Wells-Lamson Quarry Co., Inc., 103 Vt. 475, 479, 480, 156 A. 681, 77 A.L.R. 492. Our rule as to the way in which a declaration may be amended without introducing a new cause of action affords a test for determining what issues may be so tried. As long as the plaintiff adheres to the contract or injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The true test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully and differently laid. Powers v. Bellows Falls Hydro-Elec. Corp., 115 Vt. 243, 245, 57 A.2d 114; Daley v. Gates, 65 Vt. 591, 592, 27 A. 193; Parker v. Bowen, 98 Vt. 115, 118, 126 A. 522; Johnson v. Hardware Mutual Casualty Co., 109 Vt. 481, 489, 490, 1 A.2d 817; McCutcheon v. Leonard, 114 Vt. 368, 370, 39 A.2d 348. Burleson v. Fox, 101 Vt. 225, 143 A. 298, affords an illustration of an amendment to a declaration in some respects similar to what might be made to the declaration in the first suit to make it conform to what is alleged in the declaration in the second suit. There the defendant was sued for the conversion of certain articles of personal property. An amendment was permitted setting forth that the defendant was a member of a partnership which converted the property, and that the other partner having deceased she was sued as surviving partner.

Here the cause of action was the negligent operation of an automobile resulting in injuries to the plaintiff. If amendment is necessary to make the declaration in the first action conform to the declaration in the second, it is clearly permissible. Had the plaintiff gone to trial in her first suit and been cast she could not thereafter have maintained another action like the second one. The two suits are for the same cause of action.

Are the parties the same? The plaintiff claims that because of the addition in the second suit of the Peerless Casualty Company as a party defendant the parties are not the same. The Casualty Company can only be liable in the event a judgment is obtained against Crowell. In other words, it can only be secondarily liable. In this respect the procedure in making the Casualty Company a party defendant resembles trustee process, where there can be no judgment against the trustee unless judgment is first obtained against the defendant. When the prior action does not include all of the parties joined in the second action, a plea in abatement on the ground of the pendency of the prior action may be sustained, when the liability of the new parties is merely secondary, and dependent on the primary liability of the original defendant. 1 C.J.S. Abatement and Revival, § 56, p. 91. The addition of the Casualty Company as a party defendant did not make it a true party. The parties in the two actions are the same.

Is the first suit still pending? Under the common law the plaintiff could become nonsuited as of right at any time before verdict and thereby reserve to himself the power to bring a new action for the same subject matter. 17 Am.Jur., Dismissal and Discontinuance, § 14. This rule is recognized in Lyon v. Adams, 24 Vt. 268, where the opinion states: 'The general rule of practice in regard to actions, triable by jury, is to allow the party, as a matter of right, to enter a nonsuit, at any time, before the verdict.' This case states that this rule does not apply to the action of book account after judgment to...