Worrie v. Boze

• Decision Date: 26 November 1956
• Docket Number: No. 4586,4586
• Citation: 95 S.E.2d 192,198 Va. 533
• Parties: , 63 A.L.R.2d 1315 ROSS WORRIE AND CHARLES E. BAILY, ETC. v. CHRISTINE BOZE AND LYNN J. BOZE, PARTNERS TRADING AND DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF ARTHUR MURRAY STUDIO. * Record
• Court: Virginia Supreme Court

Page 192

95 S.E.2d 192

198 Va. 533, 63 A.L.R.2d 1315

ROSS WORRIE AND CHARLES E. BAILY, ETC. v. CHRISTINE BOZE AND LYNN J. BOZE, PARTNERS TRADING AND DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF ARTHUR MURRAY STUDIO. *

Record No. 4586.

Supreme Court of Appeals of Virginia

November 26, 1956.

Emanuel Emroch (George E. Allen, on brief,) for the plaintiffs in error.

Francis V. Lowden, Jr. and Archibald G. Robertson (Hunton, Williams, Gay, Moore & Powell, on brief), for the defendants in error.

EGGLESTON, Justice.

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

This appeal is a sequel to that involved in Worrie v. Boze, 191 Va. 916, 62 S.E.2d 876. A statement of the factual background and recital of the proceedings in the first suit will point up the issues involved in the present appeal. The parties will be referred to as they appeared in the court below in the two suits.

In March, 1947, Christine Boze and Lynn J. Boze, as partners, opened a dancing school in the City of Richmond under the name of Arthur Murray Studio. Pursuant to separate written contracts the defendants, Ross Worrie and Charles E. Baily, were employed by the plaintiffs as dancing instructors. Each of these contracts contained covenants whereby each defendant agreed that upon the termination of his employment with the plaintiffs for any cause, and for a period of two years thereafter, he would not engage in teaching dancing within twenty-five miles of the plaintiffs' studio.

On December 4, 1948, each of the contracts of employment was terminated and shortly thereafter the two defendants opened a dancing school in Richmond under the name of Ross-Baily School of Dancing. Thereupon Christine Boze and Lynn J. Boze filed an equity suit in the court below against Worrie and Baily to restrain them from operating and conducting this school in violation of the terms of their respective contracts with the plaintiffs. There were prayers for injunctive and general relief, but no prayer for an assessment of damages. After full hearings a decree was entered enjoining the defendant, Worrie, from violating the terms of his contract with the plaintiffs for a period of two years from the date of the termination of his employment with them. On Baily's plea of infancy the bill was dismissed as to him.

On an appeal by Worrie we affirmed the decree against him. 191 Va. 916, 62 S.E.2d 876. No appeal was taken from the decree in so far as it dismissed the bill as to the defendant, Baily.

Shortly after the affirmance of the decree against Worrie the plaintiffs filed their petition in the lower court in the cause, which had been pending therein, praying for an assessment of damages against both Worrie and Baily for their operation of their dancing school in violation of Worrie's contract with the plaintiffs. The lower court sustained the defendants' motion to dismiss the petition, the order stating that such dismissal was 'without prejudice, upon the ground that this court is wholly without jurisdiction to act further in this proceeding.'

The plaintiffs filed their motion for judgment against Worrie and Baily in the present case claiming compensatory and punitive damages for the 'fraudulent, willful and malicious acts of the defendants and each of them' in that they had 'wrongfully and unlawfully conspired to breach,' and had induced the breach of, the contract which Worrie had entered into with the plaintiffs. The defendants filed a plea of the one-year statute of limitations and a plea of res judicata, both of which were overruled. After grounds of defense had been filed there was a trial by a jury which resulted in a verdict in favor of the plaintiffs against both defendants for compensatory damages of $10,000 and punitive damages of $5,000. A motion to set aside the verdict was overruled and to review the judgment entered thereon the present writ was allowed.

The first assignment of error is that the lower court erred in overruling the defendants' plea that the plaintiffs' claim was barred by the one-year statute of limitations. Code, § 8-24. The lower court upheld the plaintiffs' contention that the five-year limitation in the same section applied.

A determination of the matter turns upon the proper interpretation of Code, §§ 8-24 and 64-135.

Code, § 8-24, reads: 'Of actions not before specified. -- Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued.'

Code, § 64-135, reads: 'For goods carried away, waste, or damage to estate of or by decedent. -- An action of trespass or trespass on the case may be maintained by or against a personal representative for the taking or carrying away any goods or for the waste or destruction of, or damage to, any estate of or by his decedent.'

"Whether the five-year or one-year limitation provided for in section 8-24 applies depends upon whether the cause of action be of such nature that it would survive. If the action would survive the limitation is five years, but if it would not survive the limitation is one year.' Progressive Realty Corp. v. Meador, 197 Va. 807, 809, 91 S.E.2d 645, 646, 647.

In Winston v. Gordon, 115 Va. 899, 915, 916, 80 S.E. 756, 763, we quoted with approval the rule in Graves on Pleading, page 16, that those actions which survive are "Those for wrong to property, real or personal, or which grow out of breach of contract, but not for wrongs done to the person or reputation, or any purely personal wrong, apart from property or contract.' ' See also, Trust Company of Norfolk v. Fletcher, 152 Va. 868, 877, 878, 148 S.E. 785, 73 A.L.R. 1111; Westover Court Corp. v. Eley, 185 Va. 718, 722, 40 S.E.2d 177, 179; Progressive Realty Corp. v. Meador, supra, 197 Va., at page 809, 91 S.E.2d, at page 647.

In the present case the defendants insist that the plaintiffs' action is not for direct damage to their property or estate, but is merely a claim for damages for being deprived of additional profits. Hence, they say, the plaintiffs' claim would not survive. We do not agree with this contention.

It is well settled that the right to performance of a contract and the right to reap profits therefrom are property rights which are entitled to protection in the courts. Consequently, suits for procuring breach of contract proceed on this basis. 15 C.J.S., Conspiracy, § 13, pp. 1020, 1021; Annotation, 84 A.L.R. 46.

The plaintiffs' claim here is of this nature. Their claim is that their business or estate, their property in their contract with Worrie, was destroyed by reason of the acts of the defendants done in pursuance of their conspiracy. Moreover, they allege that pursuant to their conspiracy the defendants solicited the plaintiffs' customers and thus deprived the plaintiffs of some of their business. Clearly, under these allegations, the wrong done and damage done are directed to the estate or property of the plaintiffs and not to them personally. See Progressive Realty Corp. v. Meador, supra; Barnes Coal Corp. v. Retail Coal Merchants Ass'n., 4th Cir.,128 F.2d 645.

The plaintiffs' claim for punitive damages is incidental to and of the same nature as their claim for compensatory damages. Their claim for punitive damages is no more personal to the plaintiffs than their claim for compensatory damages. Both were claimed for direct damage to the plaintiffs' property by the wrongful acts of the defendants. Hence the claim for punitive damages is of such nature that it, too, would survive.

Accordingly, we hold that the defendants' plea of the statute of limitations was properly overruled.

The defendants next insist that the lower court erred in rejecting their plea of res judicata. The argument is that the plaintiffs' case here is based on the identical cause of action which was litigated in the former equity suit and between the same parties; that the plaintiffs could and should have litigated their claim for damages in that suit; and that having failed to do so they are barred by the principle of res judicata from maintaining the present action.

In Kemp v. Miller, 166 Va. 661, 674, 186 S.E. 99, 103, the general rule is stated thus:

''When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings, or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties.' 15 R.C.L., § 438, p. 962.'

See also, Winborne v. Doyle, 190 Va. 867, 871, 59 S.E.2d 90, 92, 93.

The plaintiffs insist that even if the cause of action in the former equity suit be the same as that in the present action, which they deny, the former suit is not a bar to the present action because, they say, there was no prayer in their bill for an assessment of damages and hence that matter was not within the issues made or tendered by the pleadings in that suit. On the other hand, the defendants contend that the matter of damages was put in issue by the plaintiffs' prayer for general relief, or that the bill could and should have been amended so as to adjudicate that matter, and hence the former suit is a bar to the present action. The precise question does not seem to have been decided by this court and it is not necessary that we decide it here. We are convinced that while the causes of...