18 A.2d 179 | Vt. | 1941
This is an action for negligence, and results from a collision between the automobile in which the plaintiff was riding as a passenger and a truck owned by Gay's Express, Inc. and operated by the defendant. In his answer the defendant avers that the plaintiff, prior to the bringing of the suit, brought a suit against Gay's Express, Inc., in which she sought to recover damages resulting from this same collision, and in which she alleged that the truck was negligently operated by its servant; that this defendant was the servant of the defendant in the former action and was acting within the scope of his employment; *483 that the acts complained of in this suit are the same acts complained of in the former case; that the issues litigated and determined in the former action were whether the defendant in that case was negligent and, if so, whether such negligence was a proximate cause of the plaintiff's injuries; that judgment was rendered below in that action in favor of the plaintiff, but reversed in this Court, and judgment was here entered for the defendant to recover its costs; and that consequently the two causes of action are substantially identical, and that the judgment in the former case is a bar to the present action. The plaintiff demurred to this answer and gave as reasons that the former action is not a bar; that she made no election when she proceeded against the master in the former case; that the liability involved in this and the former suit is a several liability, and there being no recovery in the former suit she is not barred from pursuing her remedy against the servant; and that admission of negligence of the defendant having been held inadmissible against the master, the plaintiff is not now barred from maintaining her action against the defendant to determine his negligence. The demurrer was overruled, subject to plaintiff's exceptions, and the cause has been brought here before final judgment.
In the former case, Jones v. Gay's Express, Inc.,
In a case where the master is liable only under the rule ofrespondeat superior, the master is not the wrong doer, but the law gives to the injured party the right to elect to treat the master and servant as one and recover from the master, or to disregard their relation and recover from the servant. He can treat the servant's act as that of the master but not as that of the master and servant. They are not joint tort-feasors, and therefore jointly and severally liable. Raymond v. Capobianco,
Had the former case gone against the master the defendant as its servant would not have been concluded thereby in a suit against him by the master for reimbursement because there was no privity between them. While the general rule is that no person can claim the benefit of a judgment as an estoppel unless he would have been prejudiced by a contrary decision of the case,Dunnett v. Shields Conant,
In Giedrewicz v. Donovan,
In Krolik v. Curry,
In Wolf v. Kenyon,
A few other cases in point are: Anderson v. West Chicago StreetR. Co.,
It is argued that the rules of evidence would be different in an action against the servant; that the servant's admissions of negligence, although inadmissible against the master, would be admissible in evidence against the servant. These are rules of procedure only and are not of a substantive nature. This does not affect the proposition that the question of the servant's negligence has been determined. The plaintiff might have introduced the servant's admissions in a suit against the servant, but having failed in her suit against the master, she is now barred from suing the servant. Fightmaster v. Tauber, supra;Wolf v. Kenyon, supra.
*486Judgment overruling the demurrer affirmed, and cause remanded.