Waynesboro v. Wiseman

• Decision Date: 15 November 1934
• Citation: 163 Va. 778
• Parties: TOWN OF WAYNESBORO v. ANNIE C. WISEMAN.
• Court: Virginia Supreme Court

Page 778

163 Va. 778

TOWN OF WAYNESBORO v. ANNIE C. WISEMAN.

Supreme Court of Virginia, Richmond.

November 15, 1934.

Present, Campbell, C.J., and Holt, Hudgins, Gregory and Chinn, JJ.

1. ESTOPPEL — Estoppel by Judgment — Exoneration of One Co-Defendant Whose Negligence Is Basis of Another's Liability. — An exception to the general rule requiring mutuality in an estoppel by judgment exists where the liability of defendant is wholly dependent upon the negligence of one exonerated in the same, or in a prior action by the same plaintiff.

2. AUTOMOBILES — Collision with Unlighted Truck on City Street — Release — Plaintiff Estopped by Release of Truck Owner from Prosecuting Action against Municipality — Case at Bar. — In the instant case, an action to recover for injuries sustained when the automobile in which plaintiff was riding ran into the rear end of a truck, parked without lights on the main highway within the corporate limits of the town, plaintiff amended her original notice of motion, in which she had made the truck owner sole defendant, so as to include the town as co-defendant, and subsequently filed a written statement acknowledging that there was no liability on the part of truck owner and, on plaintiff's motion, the suit was dismissed as to him without the right on plaintiff's part to reinstitute the same. A verdict was rendered in favor of plaintiff against the town, although the latter contended that the release as to the truck owner, as a matter of law, discharged it from liability.

Held: That plaintiff was, by her statement and by the judgment dismissing the action as to the truck owner, estopped from prosecuting her action against the municipality. The negligence of the municipality, if any, was wholly derivative and based on constructive knowledge of a dangerous obstruction in the street, left there by the truck owner.

Error to a judgment of the Circuit Court of Augusta county in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

W. E. Moore, for the plaintiff in error.

G. H. Branaman and Charles Curry, for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

This writ of error brings under review the proceedings in an action in which Annie C. Wiseman, plaintiff in the trial court, obtained a verdict and judgment for $2,000 against the town of Waynesboro, for personal injuries.

Plaintiff was injured on the night of March 4, 1932, when an automobile, in which she was riding, was driven by her son into the rear end of a truck, loaded with lumber, which had been left parked on the main artery of travel, just within the corporate limits of the town. In her original notice of motion, she made J. P. Boward, the owner of the truck, the sole defendant. This notice alleged: That on the afternoon of March 3, 1932, while the truck was being driven in an easterly direction along the Jefferson highway, and just as it entered the corporate limits from the west, it broke down, was pulled to the right side, and parked on the paved portion of the street, and there left, unattended, unguarded, and without adequate warning signals, or lights for more than forty hours; that the ends of pieces of lumber extended unevenly over the rear of the truck some four or five feet; that approximately thirty-six feet west of the rear of the truck, and outside the corporate limits of the town, the paved surface of the highway is thirty feet wide, divided by white lines into three driveways; that at the point where the truck was parked the paved surface of the street is only sixteen feet wide; and that the parked truck under these conditions seriously obstructed the free movement of traffic, and was the source of potential danger to users of the street.

The owner of the truck filed a written statement of defense, in which he denied the material allegations set forth in the notice of motion, and entered a plea of contributory negligence. At a later term of the court, pursuant to the provision of Code, section 6102, plaintiff made the town of Waynesboro a co-defendant. It appears from this amended notice that plaintiff relied upon the same alleged facts, set forth in her original notice against the owner of the truck, to charge the town with liability for her injuries. To the amended notice, J. P. Boward filed the same pleas which he had filed to the original notice of motion. The municipality filed a demurrer, pled the general issue and contributory negligence.

Before trial on the issues thus joined, plaintiff filed a written statement, signed by her attorneys, reading thus:

"ACKNOWLEDGMENT OF COUNSEL FOR PLAINTIFF

"The plaintiff, by her attorneys, acknowledging that there is no liability against the defendant, J. P. Boward, now comes and moves the court to dismiss this action as to the said Boward, without any right on the part of the plaintiff to hereafter reinstitute the same."

Thereupon the court entered the following order: "This day came the parties by their attorneys and the plaintiff by her attorneys acknowledging that there is no liability against the defendant, J. P. Boward, now comes and moves the court to dismiss this action as to the said Boward without the right on the part of the plaintiff to hereafter reinstitute the same.

"It is, therefore, considered by the court that this action be dismissed as to the defendant, J. P. Boward, without the right on the part of the plaintiff to reinstitute the same. And on motion of the defendant, the town of Waynesboro, it is ordered that this suit be continued until the next term, but at the cost of the said defendant, the town of Waynesboro."

Thereafter, a jury was empanelled to try the issues between plaintiff and the town. Before these issues were submitted to the jury, the town moved the court to strike all the evidence, on the ground, among others, that "the written release as to Boward, filed in the suit (action) by the plaintiff and signed by plaintiff's counsel, admits that there was no liability upon Boward for creating an obstruction; and this release as to Boward, as a matter of law, discharges the town of Waynesboro from any liability through permitting a lawful obstruction to remain. The release of one joint tort-feasor operating as a release of all of the joint tort-feasors." This motion was overruled. After verdict, the town made a motion to set it aside and included the above as...