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tion that the act of the servant was that of one or the other, but not of that of the master.

both. The plaintiff had his election to The fact that the master has been treat the master and servant as one guilty of no wrong has not been kept and recover from the master, or to sufficiently in mind. Because he is disregard their relation and recover charged with liability, it has therefrom the servant. He could treat the fore been broadly assumed that he servant's act as that of the master, was guilty of a tort in a personal but not as that of both master and sense. This is contrary to the fact. servant. Such situations are not In the case of joint tort-feasors, alunknown in other phases of the law though there is but a single damrelating to acts done in a represent- age done, there are several wrongs. ative capacity. If an agent acts for The act inflicting injury may be an undisclosed principal, the other single; but back of that, and essenparty to the transaction may, upon

tial to liability, lies some wrong discovery of the facts, proceed done by each tort-feasor contributagainst either; but, having elected ing in some way to the wrong comto proceed against one, he cannot plained of. Carpenter v. W. H. Mcthereafter pursue the other. "He Elwain Co. 78 N. H. 118, 121, 97 cannot maintain his action against Atl. 560. There is nothing in the both, nor, having elected with present situation in any way fairly knowledge of the facts to look to the comparable to that of joint wrongagent, can he afterwards turn doers. around and hold the principal.” The rule that payment or release Chandler v. Coe, 54 N. H. 561, 568; of the cause of action against a Elkins v. Boston & M. R. Co. 19 N. joint tort-feasor is necessary to H. 337, 342, 51 Am. Dec. 184.

work a discharge of the other joint On the contract side, the reason- wrongdoer had no application. ableness of the rule has been clearly That rule is based upon the theory seen, and it has been uniformly ap- that the wrongs done by the several plied. The statements of the rea- defendants may be treated as wholly sons for the rule in those cases are

independent one of the other. But equally convincing here. "Grant

the question here is one of election ing that each was liable, both were

between two alternative defendants. not, for both could not be at one and

Once that election has been made

under such circumstances that it is the same time, since the contract could not be the personal contract

complete and cannot be avoided, the

result as to recovery is immaterial. of the agents, and yet not their con

In the case of joint tort-feasors, the tract, but that of the principal. The question is one of satisfaction for vendor had a choice and was put to

the wrong. In the present case the his election." Tuthill v. Wilson, 90 question is not of satisfaction, but N. Y. 423, 428.

of choosing the party to be held The conclusion in Massachusetts liable. and elsewhere, that the master and In this case the plaintiff made his servant cannot ultimately be held choice, his claim of identity preliable jointly for the unauthorized vailed, and he has a judgment theretorts of the servant, may be sound; on. It may be that if the result of but the true reason therefor is not the former suit had been a judgment any supposed difficulty involved in for the defendant upon the ground the right of the master to thereafter that identity was not shown, the recover over from the servant, or in plaintiff could have avoided being any technical rule as to joint or sey- charged with having elected, because eral suits. The real ground is that he had mistaken the facts as to the liability of the master is one identity. Noyes v. Edgerly, 71 N. based upon a presumed identity. H. 500, 53 Atl. 311.

H. 500, 53 Atl. 311. But where the The plaintiff may treat the act as judgment shows that there was no

(- N. H. 123 Atl. 229.) such error, that the facts were ex- should be, but no longer. Hutt v. actly as the plaintiff understood and Hickey, supra. It should be preclaimed them to be, his election is served until he can be fully incomplete, and he is bound by it. formed as to all the facts. This may

It is not necessary to decide involve a retention of that right unwhether, if the judgment against til a trial of a suit against the masthe master proved valueless, the ter settles whether the master can plaintiff could treat his election as be identified with the servant for incomplete and sue the servant. It the purposes of the claim presented. may be that if, when he stood at the It may possibly be extended so as to parting of the ways, he chose a road permit the plaintiff to ascertain that led to unexpected places, or whether the first judgment against ended in a cul-de-sac, he could re- one of them is collectable. But it is trace his steps because of the unex- entirely clear that there is no sound ected result. If the suit against reason for extending it to a case like the master ended in a verdict for the present. For the reasons before him upon the ground of nonemploy- stated, the choice is complete, and ment, or if the judgment proved the plaintiff is bound by it. worthless, there would be room for The complement of the rule that argument, to the effect that the nothing short of payment, or a replaintiff had not chosen with full lease of one joint tort-feasor, will knowledge. But nothing of the sort discharge the other, is that “'when appears here. The plaintiff has his the plaintiff has accepted satisfacverdict against the master, who is tion in full for the injury done him, able to pay it, and has offered to do from whatever source it may come, SO.

he so far affected in equity and So, too, it may be that the plain good conscience that the law will not tiff could join the master and serv- permit him to recover again for the ant as defendants in one suit, or same damages.' Lovejoy v. Murray, bring suits against them severally at 3 Wall. 1, 17, 18 L. ed. 129, 134; the same time. Our procedure is Cleveland v. Bangor, 87 Me. 259. what justice and convenience re- 264, 47 Am. St. Rep. 326, 32 Atl. quire; and bringing a joint suit 892.” Carpenter v. W. H. McElwould not prevent a several trial if wain Co. 78 N. H. 118, 124, 97 Atl. it ought to be had (Fitzhugh v. 563; Wheat v. Carter, 79 N. H. 150, Grand Trunk R. Co. 80 N. H. 185, 106 Atl. 602. 115 Atl. 803), nor would the fact The same rule of equity and good that the suits were several necessa- conscience forbids the maintenance rily prevent a determination of the of the present suit. See also Betchissues by a single trial (Brooks v. er v. McChesney, 255 Pa. 394, 100 Howison, 63 N. H. 382).

Atl. 124, where the same conclusion "A litigant should be accorded is reached as in the present case, such remedies and methods of stat- and much of the same reasoning is ing his grievance as may be neces- approved. sary to meet the meritorious contin- The cases in this jurisdiction regencies of his case.'' Sanborn v. lied upon by the plaintiff are not apBoston & M. R. Co. 76 N. H. 65, 67, plicable here. In Fowler v. Owen, 79 Atl. 643; Smith v. Bank of New 68 N. H. 270, 73 Am. St. Rep. 588, England, 69 N. H. 254, 45 Atl. 1082; 39 Atl. 329. It definitely appeared Hutt v. Hickey, 67 N. H. 411, 29 that the acts of the servant were Atl. 456.

done by the procurement and under In holding the plaintiff to the con- the authority of the principal. They sequences of his election, there is no were both wrongdoers, and of course idea of compelling him to act with- were "jointly and severally liable." out knowledge or to take chances. But this is very far from a holding His right to choose remains open as that a master is a wrongdoer in fact, long as there is just cause that it when the only wrong is the un

31 A.L.R.-13.

authorized negligent act of his serv- Mrs. Russell [the servant] had ant.

reached a satisfactory diagnosis." In Hewett v. Woman's Hospital 73 N. H. 568. Aid Asso. 73 N. H. 556, 7 L.R.A. In the present case it appears, or (N.S.) 496, 64 Atl. 190, it was not is admitted, that the only wrong held that a verdict for the servant complained of is the negligent act of did not exonerate the master from the servant at a time when the masliability for the same alleged act of ter was not present, that the master negligence. On the contrary, the was sued therefor and a judgment decision upholding the verdict was entered against him, and that against the master is expressly put payment of the judgment has been upon the ground that the parties tendered. Upon these facts, the elected to rest. their case upon cer- present suit against the servant for tain specified contentions which do

the same wrong cannot be mainnot raise this question. The verdict

tained. against the master was sustained

Judgment for the defendant. because “the hospital might be bound to warn the plaintiff before All concur.

ANNOTATION.

Judgment for or against master in action for servant's tort as bar to action

against servant.

There are comparatively few cases on this subject.

In the reported case (MCNAMARA V. CHAPMAN, ante, 188) plaintiff was injured by an automobile driven by the defendant, who was the owner's servant, the owner not being present at the time of the accident. The plaintiff had already recovered a judgment for his injuries against the master, and in this action sued the servant for the same injuries. It is held that the judgment against the solvent master for the tort of his seryant was a bar to a suit by the same plaintiff against the servant for the same cause of action, although the judgment had not been satisfied.

White v. Philbrick (1827) 5 Me. 147, 17 Am. Dec. 214, was trespass against the defendant, who as coroner had seized goods in execution at the suit of one Adams, for which taking the plaintiff brought trover against Adams and had judgment and execution. But not being able to obtain satisfaction against Adams, who had absconded, the plaintiff afterwards brought this action of trespass against the coroner for the original taking. It was held that the judgment and execution obtained by the plaintiff against Adams

for the same cause was a bar to the action of trespass.

In Thurman v. Wild (1840) 11 Ad. & El. 453, 113 Eng. Reprint, 487, 3 Perry & D. 289, in an action for trespass committed by defendant as servant and by command of his master, it was held that the acceptance of satisfaction by the plaintiff from the master was a defense.

In Betcher v. McChesney (1917) 255 Pa. 394, 100 Atl. 124, an action against a master, the court said: “So, in this case, the law gives the right of election,—the party may sue either master or servant, the one for actual negligence, the other for imputed negligence; but it by no means follows that if he sue the one and obtain judgment that he can afterwards sue the other on the ground that he had not realized the judgment obtained."

Some of the cases discuss the effect of a judgment in favor of the master.

In Chicago & R. I. R. Co. v. Hutchins (1863) 34 Ill. 108, where the plaintiff sued the railroad company for damages for killing horses, the court, in holding that the refusal to permit the engineer to testify as to

on

whether the bell was rung at the road crossing where the animals were found was not error, said: “It does not matter that the owner may elect to sue either the driver or company, because, when a jury have found in an action against the company that there was no negligence, it is a bar to a recovery against the agent.”

In Emery v. Fowler (1855) 39 Me. 326, 63 Am. Dec. 627, referred to in the reported case (McNAMARA V. CHAPMAN, ante, 188) as the leading case on the subject, the plaintiff obtained a verdict in an action of trespass quare clausum against the defendant; on the trial the defendant offered to prove that the same act of trespass was testified to and relied upon by plaintiff in an action of trespass in a suit against the father of the defendant, and that in that suit it was testified that the act of the defendant was done by the express direction of his said father, this testimony was excluded in the action against the son. In the action against the father, judgment was rendered in his favor, and this defendant at the time of the act complained of was his minor son. In the action against the son, the verdict was set aside on exceptions, the court holding that “if, upon the testimony, the jury should have been satisfied that the same acts of alleged trespass had been directly put in issue, and that a decision upon them had been made in the former suit on trial of the merits, that decision exhibited by the record of the judgment should have been held to be conclusive.” The court also said, inter alia: “This case requires that a single point only should be considered, whether one who acts as the servant of another, in doing an act alleged to have been a trespass, is to be considered as so connected with his principal, who commanded the act to be done, that what will operate as a bar to the further prosecution of the principal will operate as such for his servant. If the action were brought against the servant, he could be permitted to prove that he acted as the servant of another who commanded the act, and was jus

tified in the commission of it, or who, if the act were unlawful, had made compensation for it, either before or after judgment; and his defense would be complete. It is not perceived why he may not, upon the same principles be permitted to prove that the plaintiff had commenced a suit against his principal for the same cause of action, and proved the acts of his servant as material to the issue tried between them, and that a judgment upon the merits had been rendered against him. In such case the principal and servant would be one in interest, and would be known to the plaintiff to be so. To permit a person to commence an action against the principal, and to prove the acts alleged to be trespasses to have been committed by his servant acting by his order, and to fail upon the merits to recover, and subsequently to commence an action against that servant, and to prove and rely upon the same acts as a trespass, is to allow him to have two trials for the same cause of action, to be proved by the same testimony. In such cases the technical rule that a judgment can only be admitted between the parties to the record or their privies expands so far as to admit it, when the 'same question has been decided, and judgment rendered between parties responsible for the acts of others.”

In Krolik v. Curry (1907) 148 Mich. 214, 111 N. W. 761, a judgment on the nierits in favor of a corporation, in an action instituted against it for fraud by means of misrepresentation in the sale of land, was held to be a bar against a subsequent suit against the officers of the corporation for the same fraud.

In Featherston v. Newburgh & c. Turnp. Road (1893) 71 Hun, 109, 24 N. Y. Supp. 603, the plaintiff brought an action for damages for injuries caused by an obstruction in the road. It was defended that she had previously brought an action for the same identical injuries against the person whose land abutted on the road where the obstruction was, and that it was held in that action that such injuries were caused by the contributory neg-|

ligence of the plaintiff. It was held complained of, the logical conclusion that this was a good defense. The necessarily is that if the C. N. & L. is court said: “The statement in the not liable, the defendant is not.” answer shows that Shafer was the So, in Anderson v. West Chicago wrongdoer, and that his act was the Street R. Co. (1902)' 200 Ill. 329, 65 cause of the injury sustained by the N. E. 717, affirming (1902) 102 Ill. plaintiff. So, it seems to follow that if App. 310, a judgment in favor of the Shafer was not liable for creating and lessor of a street railway, in an action maintaining the obstruction, the de- for an injury caused by the neglifendant cannot be liable for the fail- gence of the lessee, was held to be a ure to remove them. If Shafer was bar to a subsequent suit for the injury not liable because the plaintiff's own against the lessee, the court saying: negligence produced the injuries of “In the case of a leasing of a railroad which she complains, the defendant by one company to another company, is not liable for the same reason. the negligence or tort of the lessee Shafer and the defendant were not company in operating its road is, by joint wrongdoers, and the rule that the law of this state, imputed to the one wrongdoer cannot recover against, lessor company, because it cannot abor compel contribution by, another, solve itself from the responsibility does not apply. The relation between imposed by law upon it to operate Shafer and the defendant was analo

its road so as to do no unnecesgous to that of principal and agent, or sary damage to the person or property principal and surety, or master and of others. Ellett's Case (1890) 132 Ill. servant, and the rule in such cases is 654, 24. N. E. 559. The relation bethat a judgment in favor of the princi- tween them, so far as it has reference pal or the surety upon a ground equal- to such damage, is not that of landlord ly applicable to both should be ac- and tenant, but that of principal and cepted as conclusive against the plain- agent, or master and servant. Both tiff's right of action."

being liable to the party injured, such In Jepson v. International R. Co. party could sue them both in the same (1913) 80 Misc. 247, 140 N. Y. Supp. action or sue each one separately, but 941, affirmed in (1914) 163 App. Div. if one was not guilty of the tort, the 933, 147 N. Y. Supp. 1118, which in other one could not be. It is not a turn was affirmed in (1917) 220 N. Y. case where the allegation is that two 731, 116 N, E. 1053, the court said, different parties have committed a arguendo: "If the principal is ex- tort to the person or property of the onerated from liability for the negli- plaintiff, and thus each one of them gent acts of the agent, done for him, would be individually liable, and by reason of the contributory negli- where it might turn out on the trial gence of the injured person, it would that one of the parties was innocent seem that the agent must also be re- of any actionable wrong. Such could lieved from liability for the same act. never be the case where the negligence Featherston v. Newburgh & C. Turnp. complained of is the negligence of the Road (N. Y.) supra.”

company operating the road. Its negIn Jenkins v. Atlantic Coast Line ligence is conclusively presumed to be R. Co. (1911) 89 S. C. 408, 71 S. E. the negligence of the owner. There is 1010, it was held that a judgment in no question of fact to be tried whether favor of a lessor railroad against the the owner company is liable for the plaintiff in an action for injuries negligence of the lessee,,it is so liacaused by the lessee railroad was a ble under the law. It must follow, bar to an action against the lessee then, that if, in a suit brought against railroad for the same injuries. The the lessor in which the tort complained court said: "As the liability of the of is in fact the tort of the lessee, a C. N. & L. is predicated upon that of verdict of not guilty is rendered, the defendant, and as it would be lia- that is, that there was no actionable ble for anything for which the defend- wrong committed against the plainant is liable, in respect to the matter tiff by the lessor,—no actionable

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