Levick v. Norton, 51 Conn. 461

Levick v. Norton

51 Conn. 461 | Conn. | 1884

Pardee, J.

The statute (Gen. Statutes, p. 234, secs. 20, 21,) and acts of 1875, chap. 7, provide in effect that when the drivers of any vehicles for the conveyance of persons shall meet each other in the public highway, each shall turn to the right and slacken his pace so as to give half of the travelled path, if practicable, and a fair and equal opportunity to pass, to the other ; and that every driver of any such vehicle who shall, by neglecting to conform to this requirement, drive against another vehicle and injure its owner or any person in it, or the property of any person, shall pay to the person injured treble damages and costs; and that the owner of such vehicle shall, if the driver is unable to do so, pay the damages, to be recovered by writ of scire facias.

In 1882 the plaintiff recovered a judgment for $292.50 treble damages and $37.84 costs against Walter E. Mansfield, upon a complaint charging him with having carelessly and negligently driven a vehicle for the conveyance of persons, contrary to the statute, against a vehicle belonging to the plaintiff, to his damage. The latter brings this writ of scire facias, alleging that at the time of the injury Mansfield was driving a vehicle belonging to the defendant as his servant and in his employment; that the judgment remains unpaid, and that Mansfield is wholly unable to pay it; demanding payment of the defendant. The plaintiff had judgment. The defendant took an appeal, substantially for these reasons: namely, that the statute is unconstitutional in that it attempts to deprive the defendant of his property without due process of law; that he cannot be held answerable in damages assessed in the original action without opportunity of being heard thereon; and that he has been deprived *469of his right to a trial by jury. The case is reserved for the-advice of this court.

By the statute whoever unlawfully manages a vehicle for the conveyance of passengers upon the public way, and thereby inflicts an injury upon the person or property of another who is in the lawful use of the way, is placed under obligation to pay to the latter a sum three times greater than the actual damage; and every master inflicting injury upon the person or property of one who is in the lawful use of the public way by sending thereon his vehicle for the conveyance of passengers in the charge of a negligent or malicious servant, who there unlawfully uses the same, is made to pay the damages if the servant is unable so to do. The statute, regarding the master as having either with knowledge, or in ignorance, the result of gross and culpable negligence, sent the servant, and as being equally with him the author of the injury, imposes upon him equal responsibility, a statutory suretj'ship for all resulting damage. It intentionally puts him in the position which he would have occupied if he had expressly agreed that he would take the place of the servant as debtor for the injury, and that the liability of the latter should be the measure of his own. It substitutes him for the servant as completely as surety or bail can be for a.principal or a bondsman for an executor. And the purpose of the special designation of the writ of scire facias as the form of action against him, is to make it a condition precedent to the exercise of his right to send a servant upon the way in charge of his vehicle, that he shall come under an obligation to be answerable for all damages resulting from the unlawful acts of the servant thereon; answerable too in an action upon the trial of which an unreversed and unsatisfied judgment of a court of competent jurisdiction in favor of the plaintiff and against the servant for the same injury shall be conclusive proof of the amount of the damage; leaving him the right to prove that he was not master or that the judgment was obtained by fraud or collusion.

All this by way of prevention of acts endangering the public safety. .For upon the legislature is the duty and with *470it is the power to protect the person and property of the traveler upon the highway from injury resulting from the unlawful use of it by another. The statute is the reasonable exercise of- .police power vested in it for the promotion of public welfare. It is the application of a common law principle regulating the trial of actions against sureties upon certain bonds and agreements.

For the general rule that judgments shall bind only parties and privies admits of this exception, that one may agree to stand in the place of another and to be so fully answerable for his debt or unlawful act as that a judgment against the latter shall conclude the former as to the amount of such debt or damage.

In Willey v. Paulk, 6 Conn., 74, the creditor of a testator recovered judgment against the executor; the latter died not having made payment. Upon an action on the probate bond against his sureties it was held that they were privies in contract to the judgment and that it was conclusive as to the amount of the damages. The court said: “The defendants were not, and could not be made, parties to the action against Leverett S. Chapman. But they are privies, not indeed in the fourfold class of privities of Lord Coke (1 Inst., 271 a,) but privies in contract as defined by Jacob-(Law Diet., Privies,) partakers having an interest in any action or thing or any relation to another. But the defendants disclaim all relation to the judgment in question-and claim that it was rendered between strangers to them. . But they stand in the same relation to their principal as bail to theirs. The case of principal and surety, according to Pothier, a civilian of great authority, is not within the-rule of res inter alios acta. The dependence of the obligation of a security on that of the principal debtor, to which it has acceded, also causes the security to be deemed the same party with the principal debtor in regard to all that is determined for or against the principal debtor.”

In the 180th section of his work on Judgments, Mr. Freeman, after stating the general rule, and some exceptions, proceeds as follows: “ Sureties upon the bond of an' *471executor or administrator seem also to occupy a position in which their responsibility may be fixed in suits to which they are not parties and in which they- are not tendered an opportunity to defend. If a judgment has been recovered against an administrator and an action thereon be commenced against the surety on his bond to the ordinary, such judgment is conclusive unless the surety can show that it was obtained through fraud or collusion between the creditor and the administrator. The only questions open to the sureties upon a suit upon such a bond, after judgment against their principal, are in reference to the making of the bond and its legal sufficiency. When judgment has been recovered in a court of competent jurisdiction against an administrator, showing that he has received funds belonging to an estate and has failed to pay over the same, a breach of his administration bond is established. By this judgment the administrator is bound, and the sureties are concluded to the same extent to which their principal is concluded.”

The legislature having power to make the defendant answerable in the action of scire facias, and he having been allowed to defend in accordance with the rules of the common law governing that action, he has had his day in court.

The statute essentially in its present form has been in existence more than three quarters of a century. So far forth as this action is concerned the defendant has all the rights and privileges which would have been his before the adoption of the constitution.

As the driver in this case was the servant of the defendant, and acting at the time in his employment, no such question arises as in the case of Camp v. Rogers, 44 Conn. R., 291, and our decision in this case is not to be holden as in any manner qualifying that.

The Superior Court is advised to render judgment for the plaintiff.

In this opinion the other judges concurred.