Lindsey v. Town of Danville

The opinion of the court was delivered by

The plaintiff and wife, in a joint action, had recovered final judgment against the defendant town, for personal injury to the wife, by reason of the insufficiency of the highway which it was incumbent on the defendant to keep in repair. This suit is brought to recover damages that accrued to the husband by reason of the same occurrence. The same facts must be proved in *148this case, as in the former, to warrant a recovery by this plaintiff. The sufficiency of the highway, the care and prudence of the plaintiff’s wife in the management of the team, the condition and safety of the wagon and tackle, are in issue in this case precisely as in that. The defendant has had full opportunity to adduce evidence, and cross-examine the plaintiff’s witnesses, upon these issues, which have been adjudicated. Is the defendant concluded, as to these issues, by the former judgment ? The identity of the issues and subject-matter in the two suits, is not questioned. Nor is it denied that facts once judicially determined between the same parties, are concluded. In the language of Lord Ellenborough, in the leading case of Outram v. Morewood et ux. 3 East, 346, “ The estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.” In that case, the defendant’s wife, Ellen, had been sued for digging coals in the plaintiff’s mine ; the wife had justified her acts, under a claim of right in the coal mine, which had been determined against her. She afterwards intermarried with the defendant Morewood, and continued to dig and remove the coal from plaintiff’s mine ; and the plaintiff brought a second suit against husband and wife, who attempted to set up the same right and title, as in the former suit, and the court held that both defendants were estopped. The case was elaborately argued by Erskine on the one side, and by Gibbs on the other, and the chief justice brought to his service his great learning and judicial vigor, in a thorough analysis of all the authorities on the subject of estoppel, and seems to have had no doubt, that if the wife was estopped by the former judgment against her, the husband would be estopped also.

The case of Incledon et als. v. Burgess, reported in 1 Show. 27, was an action of trespass for breaking a close. Plea, a prescriptive right of common of turbary, <fcc.; replication, traversing such prescription. Rejoinder, by way of estoppel, was, that in such a term, one of the plaintiffs brought an action of trespass against the defendant, wherein he pleaded the same prescription, and issue *149tried upon it, and found for the defendant. The question was made in argument, that the estoppel should not prevail, because another plaintiff was joined in the former suit. Lord Holt, who gave the opinion of the court, is reported to have., said : “ An estoppel upon a verdict goes a great way ; but if one man is es-topped, and he joins another with him, whether this shall avoid the estoppel, is a quere.” But his lordship gave no opinion upon the estoppel; but disposed of the case upon a defect in the declaration. The averment in the declaration was, “ contra pacem domini regis ;” and the court held that the averment should have been “ against the peace of both kings it being in the reign of William and Mary. Lord Ellbnborough reviews the authorities cited by Lord Holt, and somewhat criticises his disposition of the case on such technicality, and avoiding the merits of the plea. He evidently thought the estoppel should have prevailed. In Outram v. Morewood, the court say : “ If the wife were bound by this finding, as an estoppel, and precluded from averring the contrary of what was then found, the husband, in respect of his privity, either in estate or in law, would be equally bound.” 2 Smith Lead. Cas. 662, 822. Hawkins v. Lambert, 18 B. Mon. 99. But in this case the husband and wife had impleaded the defendant in a joint action, and recovered. Had the defendant town recovered final judgment in the first suit, against both plaintiff and his wife, and then the plaintiff should have instituted this suit, and sought to try precisely the same issues in which he had been once cast, would the defendant have deemed it a duty to mar-shall the same evidence in defence, and try again the same issues that had been once finally determined ? If the husband would be concluded by an adjudication against the wife, in which he had no part, a fortiori he would be concluded by a judgment to which he was party, and had full opportunity to adduce evidence,, and cross-examine the witnesses of his adversary. ■ In the case of Spencer et al. v. Dearth, 43 Vt. 98, the court held that an award between the payee and surety of a note, in which the note was adjudged to be paid, was conclusive in a suit between the payee and the principal in the note; though it was conceded that, had the judgment been the other way, the principal would not have *150been concluded. Ordinarily, estoppel must be mutual, and conclude both parties, and that case was held an exception. But in this case there is no want of mutuality, and both parties would be alike concluded. We find no error in this branch of this case.

II. The court allowed the plaintiff to prove, against defendant’s objection, what he had paid out for hired help during the wife’s disability, being that class of work performed by the wife in her ordinary state of health. The court told the jury that the plaintiff would be “ entitled to recover for the loss of the services of the wife, only so much as the evidence established he had lost by reason of the injury and that this evidence was to be considered in that connection, and as “ one method by which they could arrive at his loss” by reason of the disability of the wife. The charge was in substance, that the ground of recovery was loss of service, and if the jury thought that what was paid for necessary labor, substituted for the ordinary service of the wife, with interest, was a just rule of compensation for the loss of the wife’s services, they were at liberty to adopt it. Whether interest, eo nomine, is recoverable in an action of tort, this case does not require us to determine. That a jury may take time into consideration in fixing upon reasonable damages as compensation for injuries received, there seems no doubt. We find no error in the admission of the evidence, or in rejecting the evidence as to the admissions of the wife. And we think the whole charge, taken together, was not calculated to mislead the jury as to the rule of damages.

III. The defendant claims that, under this declaration, the plaintiff was not entitled to recover for the loss of his own time in ministering to his wife. The declaration alleges that, “ he has been put to great trouble and expense in endeavoring to cure his said wife and child, — in procuring medical attendance, &o., to wit, the sum of two hundred dollars.” We think that the value of plaintiff’s services in attending upon his wife, rendered necessary by the injury, comes within the scope of the declaration.

The judgment of the county court is affirmed.