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(222 Mich. 656, 193 N. W. 214.) soon after midnight, within 2 feet of operation in a way to avoid this one's house, without creating a dis- nuisance is for the company to solve. turbance which would affect the Reasonable time should be granted slumbers of normal people. We it to accomplish it, if it can; but, in think the proofs, which are not dis- any event, the nuisance must be puted, establish the fact that these abated within a reasonable time. noises have affected the peace and The decree is reversed, and one health of plaintiffs and deprived must be entered in conformity to them of several tenants.

this opinion. Defendant is conducting a large Wiest, Ch. J., and Steere, Sharpe, and important industry, and has a and McDonald, JJ., concur with large investment in its plant, but Bird, J. these facts do not authorize it to es- Moore, J., dissenting: tablish its plant in a residential sec- For the reasons stated by the tion of the city, and so operate it at chancellor, I think the decree should night as to deprive those living in be affirrned, with costs to the appelclose proximity, of a reasonable and lee. normal use of their property. Clark and Fellows, JJ., concur Whether defendant can change its with Moore, J.

ANNOTATION. Creamery or milk distributing plant as nuisance. In at least two cases the court has trol to make great noises by night and applied to a creamery or milk depot day, by loading trucks, in cracking the rule, more frequently invoked with and breaking ice, and permitted and respect to industrial plants (see an- allowed them to use profane and innotation in 23 A.L.R. 1407), that the decent language." operation of a legitimate business in It has been held that a permit such a manner as to disturb seriously granted by a board of health for the the comfort of the occupants of near- operation of a plant to Pasteurize milk by residences constitutes a nuisance. is no defense to a prosecution for so See the reported case (KOBIELSKI V. operating the plant as to constitute a BELLE ISLE EAST SIDE CREAMERY Co. public nuisance, the facts as to the ante, 183). And see also Mitchell operation not being set out. People v. Flynn Dairy Co. (1915) 172 Iowa, V. Borden's Condensed Milk Co. 582, 151 N. W. 434, 154 N. W. 878. (1915) 165 App. Div. 711, 151 N. Y.

In Mitchell v. Flynn Dairy Co. (Iowa) Supp. 547, affirmed in (1915) 216 N. Y. supra, quoted at length in the re- 658, 110 N. E. 1046. See to similar ported case (KOBIELSKI v. BELLE ISLE effect, People v. High Ground Dairy EAST SIDE CREAMERY Co. ante, 183), ' Co. (1915) 166 App. Div. 81, 151 N. a dairy and ice cream plant located in Y. Supp. 710. a residential neighborhood was held to In Ruthven V.

Farmers Co-op. be a private nuisance, it appearing Creamery Co. (1908) 140 Iowa, 570, that considerable poise was made by 118 N. W. 915, it was held that a landthe loading of bottles and cans, which owner who had received.compensation began at 1:30 in the morning, that for a license to drain the refuse from much noise was made

by an ice a creamery plant on his land was precrusher and steam exhaust, and that cluded from enjoining as a nuisance the alley where the teams passed was reasonable exercise of that lirendered offensive by manure.

cense, In People v. Weeks (1916) 172 App. In Spring Valley Waterworks v. Div. 117, 158 N. Y. Supp. 39, the court Fifield (1902) 136 Cal. 14, 68 Pac. sustained the conviction of the super- 108, a finding that the operation of intendent of a milk depot for conduct- the defendant's dairy "may" pollute ing a public nuisance, on proof that the plaintiff's water supply was held he "caused, permitted, and allowed to be insufficient to warrant a decree the employees in his charge and con- of abatement.

W. A. S.

а

GEORGE H. McNAMARA

V.

MENDON A. CHAPMAN.

New Hampshire Supreme Court - December 4, 1923.

(- N. H. 123 Atl. 229.) Election of remedies judgment against master bar to suit against

servant. A judgment against a solvent master for tort of the servant is a bar to a suit by the same plaintiff against the servant for the same cause of action, although it has not been satisfied.

[See note on this question beginning on page 194.]

EXCEPTIONS by defendant to rulings of the Superior Court for Hillsborough County (Branch, J.) made during the trial of an action brought to recover damages alleged to have been caused by defendant's negligent operation of an automobile, which resulted in an order denying his plea. Judgment for defendant.

The facts are stated in the opinion of the court.

Messrs.Tuttle, Wyman, & Starr, for Mitchell v. Tarbutt, 5 T. R. 849, 101 defendant:

Eng. Reprint, 362; Snow v. Chandler, The right to litigate a wrong does 10 N. H. 92, 34 Am. Dec. 140; Smith v. not entitle an injured plaintiff to di- Smith, 51 N. H. 572; Blann v. Crochevide the wrong or to try his claim ron, 20 Ala. 320; McDonald v. Nugen, twice.

118 Iowa, 512, 96 Am. St. Rep. 407, 92 Chesley v. Dunklee, 77 N. H. 263, 90 N. W. 675; Lebanon v. Mead, 64 N. H. Atl. 965; Freeman, Judgm. 4th ed. § 8, 4 Atl. 392; Lamberton v. Dinsmore, 179; Black, Judgm. $ 579; Herman, 75 N. H. 574, 78 Atl. 620; Fowler v. Estoppel, 161; Emery v. Fowler, 39 Owen, 68 N. H. 270, 73 Am. St. Rep. Me. 326, 63 Am. Dec. 627; Ferrers v. 588, 39 Atl. 329; Hewett v. Woman's Arden, Cro. Eliz. pt. 2, p. 668, 78 Eng. Hospital Aid Asso. 73 N. H. 556, 7 Reprint, 906.

L.R.A.(N.S.) 496, 64 Atl. 190, 20 Am. Messrs. Alvin J. Lucier and Robert Neg. Rep. 621. W. Upton, for plaintiff:

Peaslee, J., delivered the opinion A party injured has the right to pur

of the court: sue all who are legally responsible for

The case presents certain questhe wrong until the wrong is satisfied. Sheldon v. Kibbe, 3 Conn. 214, 8 Am.

tions concerning the respective liaDec. 176; Morton's Case, Cro. Eliz. pt.

bilities of a master and his servant 1, p. 30, 78 Eng. Reprint, 296; Tibbetts

for the latter's unauthorized negliv. Shapleigh, 60 N. H. 487; Hyde v.

gent acts done in the course of the Noble, 13 N. H. 494, 38 Am. Dec. 508;

master's business, and of the corParmenter v. Barstow, 21 R. I. 410, 43

relative rights of the party injured Atl. 1035.; 23 Cyc. 1212.

by such negligence. The subject is Plaintiff is not estopped by a judg- one upon which there is but little ment rendered in an action to which authority in this jurisdiction. The the present defendant was not a party. decisions in other states and in Eng

Lebanon v. Mead, 64 N. H. 8, 4 Atl. land lack uniformity. Beyond the 392; Fogg v. Plumer, 17 N. H. 114;

elementary rules that the master is Parker v. Moore, 59 N. H. 454.

liable under the maxim "respondeat Liability for a tortious wrong for which two or more persons are legally

superior," and that the servant may responsible is joint and several, and

be answerable for his own wrong in the injured party may have satisfac

a suit by the injured party, or by the tion from any or all of those respon

master who has been compelled in sible for the wrong.

pay damages, there is little or noth

(- N. H.

123 Atl. 229.) ing to be relied upon as an estab- vania R. Co. 73 N. J. L. 192, 63 Atl. lished common-law principle.

993; Mayberry v. Northern P. R. Co. In some early cases the suggestion 100 Minn. 79, 12 L.R.A.(N.S.) 675, is found that the servant is not lia- 110 N. W. 356, 10 Ann. Cas. 754; ble at all, though in general the au- Wright v. Wilcox, 19 Wend. 343, 32 thorities of that era place his non- Am. Dec. 507; Phelps v. Wait, 30 N. liability upon an exaggerated view Y. 78. of the nature of nonfeasance. 28 On the other hand, it has been L.R.A. 433, note. It seems to have pointed out that the right to recover been thought that nonfeasance as involves distinct and different queshere used included all acts of omis- tions as to each defendant, and it is sion. The late Chief Justice Car accordingly held that a joint suit penter is authority for the state- cannot be maintained. Parsons v. ment that as late as fifty or sixty Winchell, 5 Cush. 592, 52 Am. Dec. years ago this theory was approved 745; Mulchey v. Methodist Religious by the full bench of the New Hamp- Soc. 125 Mass. 487; Campbell v. shire court, in an unreported deci- Portland Sugar Co. 62 Me. 552, 16 sion rendered in a suit brought Am. Rep. 503; Bailey v. Bussing, against an engineer to recover for 37 Conn. 349; French v. Central damages caused by his negligent op

Constr. Co. 76 Ohio St. 509, 12 eration of a railroad train.

L.R.A. (N.S.) 669, 81 N. E. 751; This view no longer prevails any- Herman Berghoff Brewing Co. v. where, and the rule of the servant's Przbylski, 82 Ill. App. 361; Warax immunity as to acts of nonfeasance v. Cincinnati, N. 0. & T. P. R. Co. is limited to acts which are merely (C. C.) 72 Fed. 637. This rule has breaches of duty owed to the master, been recognized as law in this state as distinguished from that owed to (Page v. Parker, 40 N. H. 47, 68), the complaining party. For the but is no longer followed (Fitzhugh former he is not liable to a stranger v. Grand Trunk R. Co. 80 N. H. 185, to his contract, but for the latter he 115 Atl. 803). is. Pittsfield Cottonwear Mfg. Co. The effect of a judgment either v. Pittsfield Shoe Co. 71 N. H. 522, for or against the master or the 534, 60 L.R.A. 116, 53 Atl. 807, 13 servant in a several suit, when ofAm. Neg. Rep. 363.

fered in defense of a subsequent suit With the establishment of the rule against the other, has been variousthat the servant is so liable came ly treated. There seems to have the question whether he could be been an idea that in some way it sued jointly with the master. The ought to be a defense, but the reason early view in England seems to have is not stated with any considerable been that he could not be, although distinctness. the cases where the question is dis- In Rhode Island a case arose in cussed are disposed of on other which certain parties were sued for grounds. Michael V. Alestree, 2 damage caused by their encumberLev. 172, 83 Eng. Reprint, 504; ing a highway. There was judgWhitamore v. Waterhouse, 4 Car. & ment for the defendants; and in a P. 383.

subsequent suit to recover for the In this country the cases are in same injury from the town it was direct conflict. In many jurisdic- held that the former judgment was tions such suits are permitted. The a defense because otherwise the deusual ground upon which the hold- fendants in the first suit, being liaing is put is that, as the master and ble over to the town, might be made servant are both liable for the same to pay after they had obtained a act of negligence, they may be judgment on the merits of the case. joined as defendants. Greenberg v. Hill v. Bain, 15 R. I. 75, 2 Am. St. Whitcomb Lumber Co. 90 Wis. 225, Rep. 873, 23 Atl. 44. While this is 28 L.R.A. 439, 48 Am. St. Rep. 911, not a master and servant case, it 63 N. W. 93; Whalen v. Pennsyl- involves the same principles concerning those charged by law with tempting to enforce

enforce his claim responsibility for the negligence of against another defendant in name, others. See also Hearn v. Boston & indeed, but the same in interest.” M. R. Co. 67 N. H. 320, 29 Atl. 970. In the present case the plaintiff So, in this state, the same idea was asks that such a second trial be givadopted as to the relation between en him, and states several grounds a sheriff and his deputy. “The therefor. His chief reliance is upon plaintiff might have sued the de- the proposition that the master and fendant for the act of Stebbins in servant are joint tort-feasors. It is taking the oats. But he had the to be observed at the outset that in right also to sue Stebbins himself, reality the master is not a tort-feaand this he elected to do. Having sor at all. He is not a wrongdoer. If litigated the title to the oats with he were, he could neither claim conhim and failed, he ought to be pre- tribution from one jointly liable as cluded from trying the same matter he was, nor indemnity from one for in another suit against the defend- whose acts he must answer, whereant, on the ground that the defend- as in the present situation he could ant is responsible, and that he had do either. Nashua Iron & Steel Co. a right of action against him also." v. Worcester & N. R. Co. 62 N. H. King v. Chase, 15 N. H. 9, 19, 41 159. But the fact that there is no Am. Dec. 675.

joint liability is not necessarily deThe leading case on the subject is terminative of the right to bring the Emery v. Fowler, 39 Me. 326, 63 present suit. The solution of the Am. Dec. 627. It holds that a judg question depends rather upon the ment in favor of the employer is

nature of the liability imposed upon conclusive in a subsequent suit the master. against the servant. While it is pos- As before stated, the master has sible to distinguish it upon the done no wrong, but he is by law ground that it involved suits for charged with a certain responsibiltrespass to real estate, it has gener- ity for the act of his servant. The ally been treated as authority in law identifies the master with the cases involving other classes of servant for this purpose, and makes torts. Freeman, Judgm. $ 179; the servant's act the master's. It Black, Judgm. § 579. Attempts was upon this ground that the plainhave been made to sustain these and tiff recovered his judgment against other decisions upon grounds of the master. He did not recover for privity and estoppel, but they do not any wrongful act of the master, but satisfy the generally accepted tests. for the negligence of the servant imLamberton v. Dinsmore, 75 N. H. puted to the master. 574, 78 Atl. 620.

The master not being morally The underlying reason which has guilty, his liability should extend no moved the courts in these matters is farther than is necessary to give the nowhere better stated than in At- aggrieved party redress for the kinson v. White, 60 Me. 396, 397. wrong done by the servant. Techni“That the question involved in each cal or inequitable rules said to be suit is precisely the same, and to be applicable to joint tort-feasors, and proved by the same testimony, is invoked in behalf of the present beyond a doubt. It is equally clear plaintiff, are not applicable to the that the plaintiff is the same, and present situation. that he has had his day in court. Neither should undue hardship He has had a full hearing upon the and expense be put upon the servlaw and fact involved in the very ant. If he were not permitted to question he now proposes to try discharge his liability to the plainagain in another suit. He has had tiff by the payment of the judgment every privilege the law allows him, already recovered against the masunless he is entitled to another ter for the servant's act, he must be hearing simply because he is now at- to the expense of defending the pres

Election of

(- N. H. - 12$ Atl. 229.) ent action against him personally; impose an elsewhere unheard of liand if he should prevail therein he ability. would not be discharged, but must Cases where there is some perthereafter recompense the master sonal fault of the master, of course, for his reasonable expenses and stand differently, and the injured what it might be found he ought to party may recover of him on the inpay on account of the earlier suit, dependent ground of such wrong, provided that, in the master's suit while still seeking to hold the servagainst the servant, the master were ant for his act, for which no claim able to obtain a verdict that the is made against the master. But servant was a wrongdoer. Hubbard where, as here, the doctrine of idenv. Gould, 74 N. H. 25, 28, 64 Atl. tity has been invoked as the founda668. And if in the present suit tion for a recovery, and the claimed against the servant a judgment were identity has been established, there recovered by plaintiff and paid, the plainly ought to be an end of any servant would still be liable for the future proceedings based upon a difreasonable expenses of the former ferent and inconsistent situation. suit against the master. The rule The true foundation for the nonhere sought to be invoked would liability of the present defendant is impose upon the servant a greater not found in the doctrine of estopdegree of responsibility than has pel by judgment, nor in that of satbeen put upon any other wrongdoer. isfaction obtained by the plaintiff

If the plaintiff's claim were sound, from some other party. The plainprecisely the same financial result tiff is debarred from maintaining would follow if the master had noti

the present suit, befied the servant to defend the earlier cause he had and

remedies-judgsuit, and the servant had done so.

has exercised an ment against The plaintiff could still have refused election. There was suit against to accept payment of the judgment, a single wrongful and have put the servant to this add- act, and it was the plaintiff's prived expense. Any supposed rule of ilege to treat it as that of the actor law which compels a party to try the

or as that of the master, It is not same question twice, and be bound

at all like the relation of principal by the worse of the two results, ei- and surety, where by agreement one ther directly or indirectly, is entitled

adds to the original and single liabilto but scant respect.

ity of the principal. It is a case of

substitution, and not of addition. The plaintiff has had a full and fair trial of his claim for compen

The master is charged, not because

he has agreed to be a surety for the sation, resulting in a judgment in

servant's act, but because the law his favor, which the defendant is

says the act may be treated as that ready and willing to pay. Unless

of the master. “Although in fact there is some positive rule of law guilty of no negligent act, the law which forbids, this ought to be the makes the town responsible end of the case. If the rule that in for the negligent act of A, as it the case of joint wrongdoers the makes the master responsible for plaintiff may severally pursue one the negligence of his servant." after another to judgment, refus- Gregg v. Page Belting Co. 69 N. H. ing to accept tendered payment of 247, 252, 46 Atl. 28. the earlier judgments (McDonald v. The plaintiff in the suit against Nugen, 118 Iowa, 513, 96 Am. St. the master must establish a relation Rep. 407, 92 N. W. 675; Blann v. of the master to him. He cannot do Crocheron, 20 Ala. 320), is the law this by showing the master's presof this state, it ought not to be ex- ence, for he was absent; nor can it tended. It should not be applied to be proved by authority conferred, cases not clearly falling within its for none was given. It can only be scope, nor when its application will shown by resorting to the legal fic

servant.

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