The defendant Vermont Marble Company’s demurrer to the plaintiff’s complaint raises the single question: can a plaintiff join the employer and the employee as parties-defendant in an action of tort where the employer’s liability for the alleged negligent act of the employee is based solely on the doctrine of respondeat superior?
The plaintiff declares that he was a pedestrian lawfully using the public highway and that while so doing he was injured in a motor vehicle accident involving two automobiles, one of which, he says, was being negligently operated by the defendant George N. Parker, who was then and there engaged in the business of the defendant, Vermont Marble Company, and acting as its servant or agent. To this complaint the defendant, Vermont Marble Company, demurred on the ground that "under the laws of Vermont, the plaintiff cannot maintain his aforesaid action against both the master and the servant, but rather must bring a severable action, it being maintained a joint ac *349 tion such as this does not he against both the master and the servant.”
The trial court overruled the defendant’s demurrer and the case is here on exceptions to the court’s action.
The defendant, Vermont Marble Company, points out that there is no allegation that it authorized, ratified, or participated in the negligent acts of defendant Parker; that clearly the •plaintiff’s action is predicated on the doctrine of
respondeat superior.
This being so, the defendant-employer contends that the plaintiff may not maintain an action against both the employer and employee; he may sue one or the other, the defendant argues, but not both in the same action. In support of its position, the defendant cites a line of cases headed by
Raymond
v.
Capobianco,
107 Vt 295, (1935), 178 A 896,
To meet the defendant’s seemingly well-justified position, the plaintiff advances two main arguments. First, that the decisions on which the defendant relies are mere dicta, at least, *350 so far as this case is concerned, and secondly, that the reasoning supporting them is tenuous and unsatisfactory and has been rejected by the vast majority of jurisdictions.
It is, of course, generally recognized that there is a conflict of authority as to whether a master and a servant can be sued jointly in the circumstances under consideration. It is further generally recognized that by the Capobianco case Vermont subscribed to the negative view in this matter and, in so doing, aligned itself with the views of a very restricted minority. See 57 CJS, Master and Servant, §579; 35 Am Jur, Master and Servant, §592; Mechen Agency, §2011. Although we have an early dictum to the contrary in Brown v. Lent, 20 Vt 529, 532, our position in all our recent cases has consistently indicated an adherence to the doctrine spelled out in the Capobianco case, even though such doctrine may not have been necessary to its decision.
Without doubt the question is now presented to us more squarely than in any former case. Thus confronted, we think we should take advantage of the opportunity which has arisen and review our position, and consider how well taken our stand was when
Raymond
v.
Capobianco,
107 Vt 295, 178 A 896,
It must be confessed that the decision of the Capobianco case was not well received if the law reviews furnish any criterion. Nor has its experience been any better at the hands of those courts that subsequently have had the same question to-pass upon. None of them appears to have followed it. Its reasoning made no converts. Its logic, if comprehensible, failed to commend itself to others. As was said in 45 Yale Law Journal, 920 "the precise grounds for the decision are somewhat obscure.”
Apparently the Court proceeded from the premise assumed at page 298 where it says "No claim is made by the plaintiff that this action can be maintained against the defendant on any ground other than that the defendant and his servant were joint tort feasors and therefore jointly and severally liable.” With this introduction the Court proceeds to discuss the question of whether the master and servant may be sued jointly where the doctrine of respondeat superior is involved. The Court concluded that the vicarious liability of the master is only a substituted or alternative one which cannot exist concurrently with that of the servant, and by so doing according to the reviewer in the Yale Law Journal, supra, "The necessity of an election is thereby read into the doctrine of respondeat superior itself.”
In dealing with the problem, our Court recognized that the authorities were in conflict. Having cited some of them which were contrary to the course ultimately adopted, it came to the case of
Parsons
v.
Winchell
(1850) 5 Cush, Mass, 592. This it cited as a leading case; "Wher.e it was held that a master and a servant were not liable jointly in an action on the case for an injury caused by the negligence of the servant while driving the horses and carriage of the master in his absence.” When the Court turned to
Parsons
v.
Winchell, supra,
it turned backward to a case based on the outmoded "forms of action”. In so doing it adopted a fallacious approach to the problem which could lead only to a dead end. In the older procedure, the remedy against the master who did not command or participate in the wrong, but who, in the event of his servant’s negli
*352
gence, had the fault imputed to him, would be an action in case, while the action against the servant would be trespass, and these actions could not be joined. See Note in
Even at the time it was decided, this Massachusetts case is said not to have been supportable by reason or authority. See note in 21 Illinois Law Review (1927) 522, 523. We do not pursue this question further, however, since no matter how well decided Parsons v. Winchell may have been originally, the advent of the Practice Act made it vacuous as an authority in 1935, the date of the Capobianco case.
The other cases cited by the Court in support of its position were largely decisions which had derived from
Parsons
v.
Winchell, supra,
in other jurisdictions. It will serve no good purpose to deal with them individually. Perhaps we can do no better than again quote from the Yale Law Review, Vol. 45 at page 924, footnote 27: "It is interesting to note that among the cases cited in support by the Vermont Court, three were dicta, two have apparently been overruled and one
[Williams
v.
Ferrell,
(1895)
In this connection it is to be noted that the Court, in enumerating authorities
pro
and
con,
strangely enough, made no mention of the case of
Putnam Memorial Hospital
v.
Allen,
(1929) 34 F2d 927 which had been decided only five or six years before the Capobianco case and was directly in point on the doctrine announced. We quote from Judge Swan’s opinion beginning at page 929: "The motion of the defendants that the plaintiff be required to elect between them was based upon the theory that master and servant may not be sued jointly in an action of tort founded on the negligence of the servant, where the master’s responsibility results solely from the doctrine of
respond-eat superior
and without his personal participation in the servant’s tort. Upon this subject there is a split in the authorities, a
*353
minority of the jurisdictions holding as the defendants contend. See 39 CJ 1314;
Parsons
v.
Winchell,
5 Cush., Mass, 592, 52 Am Dec 745;
French
v.
Construction Co.,
It is perhaps not without significance that the doctrine of
Parsons
v.
Winchell
has been done away with by statute in Massachusetts. (See General Laws, C. 231, §4a as amended by St. 1947, C. 408, §1). Thus it would appear that, in its practical operation, the rule proved unsatisfactory in the state where its impetus for the most part originated. See
Kabatchnick
v.
Hanover-Elm Bldg. Corp.,
331 Mass 366,
When one asks the broad, ultimate question, what does the old rule contribute to the administration of justice which justifies its retention, no good reason is apparent. On the other hand, its disadvantages have been pointed out in every quarter. Aside from, - and in addition to, - the matter of saving time and expense, common sense and common justice would seem to permit
*354
but one answer. As was pointed out in 36 Columbia Law Review (1936) 324, 326, "One may question the expediency of a rule which makes just compensation dependent upon the often blind guess of the plaintiff’s attorney as to the financial responsibility of the defendants and their susceptibility to service.” To these two hazards might be added a third, namely, possible evidentiary difficulties such as thwarted the plaintiff in
Jones
v.
Valisi,
111 Vt 481,
Again, as is pointed out in 45 Yale Law Journal (1936) 920, 921, "The servant is liable for his own negligence at all times, irrespective of whether his agency position is recognized or not; and the master, as soon as it is established that he is such, is liable without reference to his own fault, because the law has imposed an absolute obligation upon him as a matter of social policy. Accordingly, there is no inherent contradiction in the insistence that both are under an obligation to the plaintiff.” So, too, in 26 Minnesota Law Review 739, 743 we find the following: "The policy underlying respondeat superior is that of requiring the master, who normally profits by the act of his servant, to stand as surety for damages to innocent third parties caused by the servant in the course of his employment. Clearly this policy points toward coincidental rather than alternative liability. And if it be granted that this is the nature of the relationship between the co-existing liabilities of master and servant it follows that joinder should be permitted and that election of remedies has no application.”
When we turn from the law reviews to the recently decided cases we find that the reasoning of
Parsons
v.
Winchett, supra,
has received no more favorable treatment. As most of the major grounds of criticism have already been set forth, we will not attempt further quotations from the decisions. An enumeration, however, of a few of the more important and recent cases may be desirable. These are all contrary to the Capobianco case. They include:
Sherwood
v.
Huber & H. Motors Exp. Co.,
286 Ky 775,
*355 In the face of all this, we can not bring ourselves to accord final confirmation to a doctrine which was out-moded at the time of its acceptance and which experience has shown is increasingly ill-adapted to the needs of modern practice. For this reason we hold that a joint action against a master and his servant may be maintained for injuries resulting from the negligence of the servant for which the master is liable under the doctrine of respondeat superior. Anything appearing to the contrary in our cases is hereby overruled.
Order overruling the defendant Marble Company’s demurrer to the plaintiff’s declaration is affirmed and the cause is remanded.
Note: When this case was argued at the Special November Term, 1955, it was assigned to Mr. Justice Chase. At the May' Term, 1956, it was reassigned to Mr. Justice Hulburd.