[Download] "Lorraine Jones v. Oswaldo Valisi" by Supreme Court of Vermont # Book PDF Kindle ePub Free
eBook details
- Title: Lorraine Jones v. Oswaldo Valisi
- Author : Supreme Court of Vermont
- Release Date : January 11, 1941
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 55 KB
Description
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 em- ployment; 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., 110 Vt. 531, 9 A.2d 121, all the elements necessary to a recovery were made out except the negligence of the defendant's servant. The only evidence offered to show his negligence consisted of his admissions which we held to be inadmissible in a suit against the master. As the defendant in that case, if liable at all, was liable under the rule of respondeat superior does a failure to prove that its servant was negligent in that case bar a suit against the servant upon the same charge of negligence under these circumstances?