Thirty Pines, Inc. v. Bersaw

Decision Date03 February 1942
Citation24 A.2d 500
PartiesTHIRTY PINES, Inc. v. BERSAW.
CourtNew Hampshire Supreme Court

Transferred from Superior Court, Merrimack County; Connor, Judge.

Action on the case by Thirty Pines, Inc., against Fred Bersaw for negligence. Transferred to Supreme Court without ruling.

Judgment for the defendant.

Case for Negligence. Defendant was an employee of the Nashua Baking Company. January 31 or February 3, 1938, while approaching plaintiff's place of business to either deliver or collect bread, he so drove his truck as to collide with plaintiff's building. Plaintiff brought a suit against the employer, which was tried by the Court and a verdict returned for the defendant. Now plaintiff brings suit against the defendant for the same cause of action, and defendant enters a plea in bar, claiming the matter is res judicata.

Transferred without ruling by Connor, J.

W. A. Colby, of Concord, for plaintiff.

James L. Sullivan, of Nashua, for defendant.

BURQUE, Justice.

The principle of law governing this case is enunciated in McNamara v. Chapman, 81 N.H. 169, 123 A. 229, 31 A.L.R. 188. It having been admitted in the original case that defendant was an employee of the Baking Company, and was acting within the scope of his authority, plaintiff, having elected to sue the employer in the first place, cannot now maintain a second suit for the same cause of action against the employee. The matter in issue was fully tried in the original case, and cannot now be retried. Plaintiff having seen fit to elect bringing its suit against the employer instead of against the employee, or both, as it might well have, is bound by its election. This is too well recognized as an established principle of law, not only in this state, but in other jurisdictions, to merit further elucidation. The McNamara case is reported as authority therefor in 31 A.L.R. 188. The annotation thereto (page 194) headed: "Judgment for or against master in action for servant's tort as bar to action against servant" reviews the authorities, and in so far as the facts are comparable to the present ones, they agree with the McNamara case. See, also, 116 A.L.R. 604 where the McNamara case and others are cited. With slight variation in the statement of facts pertaining to this case, the McNamara decision could be written as the opinion in the instant case.

It cannot be doubted that if the original action had been against the employee, and a verdict in his favor had been rendered and...

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8 cases
  • deLeon v. Slear
    • United States
    • Maryland Court of Appeals
    • September 1, 1990
    ...Giedrewicz v. Donovan, 277 Mass. 563, 179 N.E. 246 (1932); Myhra v. Park, 193 Minn. 290, 258 N.W. 515 (1935); Thirty Pines, Inc. v. Bersaw, 92 N.H. 69, 24 A.2d 500 (1942); Melchion v. Burkart, 54 Ohio Law Abs. 287, 87 N.E.2d 373, 374 (Ohio Ct. of App.1948); Jenkins v. Atlantic Coast Line R.......
  • Lober v. Moore
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 18, 1969
    ...Giedrewicz v. Donovan, 277 Mass. 563, 179 N.E. 246 (1932); Myhra v. Park, 193 Minn. 290, 258 N.W. 515 (1935); Thirty Pines, Inc. v. Bersaw, 92 N.H. 69, 24 A.2d 500 (1942); Mackey v. Frazier, 234 S.C. 81, 106 S.E.2d 895 (1959). 31 If it were possible that the employer's exoneration by the Vi......
  • Davis v. Perryman
    • United States
    • Arkansas Supreme Court
    • February 13, 1956
    ...79 N.E.2d 859; Overstreet v. Thomas, Ky.1951, 239 S.W.2d 939; Silva v. Brown, 1946, 319 Mass. 466, 66 N.E.2d 349; Thirty Pines, Inc., v. Bersaw, 1942, 92 N.H. 69, 24 A.2d 500; Canin v. Kesse, 1942, 28 A.2d 68, 20 N.J.Misc. 371; Jones v. Valisi, 1941, 111 Vt. 481, 18 A.2d 179; Laffoon v. Wat......
  • Fiumara v. Fireman's Fund Ins. Companies, s. 84-1270-1271
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 11, 1984
    ...at 11; Bricker v. Crane, 118 N.H. at 253, 387 A.2d at 323; Scheele, 122 N.H. at 1019, 453 A.2d at 1284. Cf. Thirty Pines, Inc. v. Bersaw, 92 N.H. 69, 69-70, 24 A.2d 500, 501 (1942). Finally, Fiumara urges that extenuating circumstances--i.e., the fact that he did not smoke out the defendant......
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