Littleton v. Richardson , 34 N.H. 179 ( 1856 )

Bell, J.

The record of a verdict and judgment is always admissible to prove the fact that such judgment was rendered, or such verdict returned, in any case where the fact of such verdict or judgment, or the nature or amount of such judgment, becomes material. King v. Chase, 15 N. H. 1; Chamberlin v. Carlisle, 6 Foster 553; Warren v. Cochran, 7 Foster 339. For any other purpose it is not evidence against a stranger. Burrill v. West, 2 N. H. 192; Thrasher v. Saines, 2 N. H. 443; Lawrence v. Haines, 5 N. H. 33; 6 Foster 553; 7 Foster 339. But when a person is responsible over to another, either by operation of law or by express contract — 2 Cowen & Hill’s Notes 5 — and he is duly notified of the pendency of the suit and requested to take upon him the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he was the real and nominal party upon the record. In every such case, if due notice is given to such person, the judgment, if obtained without fraud or collusion — Coates v. Roberts, 4 Rawle 100 — will be conclusive against him, whether he has appeared or not; Jackson v. Marsh, 5 Wend. 44; Beers v. Pinney, 12 Wend. 309. Of every fact established by it; Thrasher v. Haines, 2 N. H. 443, and cases there cited; Warren v. Cochran, 7 Foster 342; Tarlton v. Taunton, 4 M. & S. 20; Clark v. Cannington, 7 Ala. 222; Brewster v. Countryman, 12 Wend. 446; Walker v. Ferrin, 4 Vt. 523; Belden v. Seymour, 8 Conn. 304.

Among those who are thus answerable over, are persons placing obstructions in highways. By the Revised Statutes, chap. 59, sec. 5, (C. S. 151,) “ if any person shall place in any highway or street any timber, lumber, stones, or anything whatever to the incumbrance or obstruction thereof, he shall be liable to the town for all damages and costs which said town shall be compelled to pay to any person who has sustained damage by reason of such incumbrance or obstruction.”

The present action is brought upon this statute to charge the defendant with the damages recovered by Shute against the town, on account of an injury suffered by him by reason of an obstruction placed by the defendant in a public highway.

In actions of this kind several points must be established by the plaintiff, as: 1. The contract or relation upon which the liability over depends. 2. An action for a cause for which the defendant is so liable under that contract or relation. 8. A notice to the defendant to take upon him the defence of the suit. 4. A recovery of damages, of which the record is conclusive evidence, when the other points are established. No presumption is allowed as to either of these points. Bach is to be proved.

Neither of these points are admitted here. It was admitted that the defendant placed in the highway the stones referred to in Shute’s declaration against Littleton, and a notice to Richardson to defend the suit brought by Shute against the town was proved, and a recovery by Shute against the town for the causes set forth in his declaration, among which were the stones placed in the highway by the defendant.

The liability over of Richardson depended upon the points that the injury sustained by Shute was occasioned in part or entirely (Palmer v. Andover, 2 Cush. 600,) by the stones placed by him in the highway, and that the recovery by him against the town was upon the same account. Of these points the only evidence offered was the judgment itself. The admission as to placing the stones in the highway did not reach these points.

There might be cases where the judgment would be evidence of these points, because it would be apparent upon the face of the record that the recovery was had for the same cause alleged in the action against the party ultimately responsible. But it would rarely happen that some connecting evidence would not be required to show the identity of the cause of action upon which the recovery was had, with that in which the recovery over is claimed.

If, however, the declaration in that case had so stated the cause of action that the court could clearly see that the cause there stated was identical with the cause stated in the present declaration, and that the recovery could have been for no other cause, the judgment would be competent and conclusive evidence of this point. But if the declarations leave that matter in any doubt, that deficiency must first be supplied by evidence aliunde, before the judgment can be admitted as evidence of anything beyond its own rendition and tenor.

We have, therefore, turned to the declarations to see how this matter is. The declaration of Shute states that there was a public highway, describing it, which Littleton was bound to repair and keep free from obstructions, &c. It then alleges that said “ highway then was, and for a long time before had been, out of repair, defective, unsuitable and insufficient, and said road was obstructed by a large stone placed in that part of the highway which was worked for public travel, and within the ditches, which stone was light colored, and of such a dangerous kind and appearance that horses were frightened at it, and the road was out of repair in this, that there was no guard or railing to keep horses and carriages from being precipitated down a steep bank there, by the side of the traveled path of the highway near said stone, though there was a dangerous embankment, &c. And said road was unsuitable in this stone left to frighten horses, and in the embankment not railed as aforesaid near said stone.” If then sets forth that the plaintiff’s horse was frightened at the appearance of said stone, and ran back, and for want of railing the plaintiff was injured, &c.

The declaration in the present action sets forth the same road, and the obligation of Littleton to repair and keep it free from obstructions, and alleges that the defendant wrongfully placed a large quantity of large, newly split granite stones, of a light gray color, one of which stones was much larger than the others, in said highway, where it was worked for public travel, and between the ditches of said highway ; which stones were of a dangerous appearance, and so placed in said highway that they obstructed the highway, and frightened horses and other animals passing along said highway ; and one Shute, passing along said way with a horse and wagon, at or near said stones, his horse became frightened at the sight of said stones, and ran backwards several rods, got out of said highway, and upset the wagon among bushes outside the way, and broke the leg of said Shute, &c., and Shute brought his action against the town for the injuries so received, and recovered $94 damages and $134.55 costs, &c.

Now it is apparent that these two suits may be for the same cause of action. A party may rightfully state, as Shute appears to have done, as many facts as constituting part of his cause of action as he supposes may in any event be useful to him, and upon the trial he may prove as many of - them as he is able; and he may well recover if he proves one good cause, though he fail as to the others. Shute may have recovered upon the precise ground stated in the declaration against Richardson — the obstruction and danger caused by the stone placed by him in the highway. Shute may have failed to prove that the road was out of repair, or defective, or insufficient, or that there was an embankment requiring a railing, or that the railing was deficient. But on the other hand he may have entirely failed to prove that there was any stone in the road, or that the stone, if there was one, contributed in any degree to the damage he sustained; and he may have recovered on the ground of other defects of the road, or of the want of a railing, or of both.

The allegation of the plaintiffs’ writ against Richardson, that Shute sustained damages by reason of the stone placed in the road by Richardson, and that he recovered damages against the town for that cause, was one requiring proof, and it is very evident that the record of Shute’s judgment does not prove a recovery for that cause, since it contains nothing to show that the recovery might not have been had for other causes set forth in Shute’s writ, entirely unconnected with and independent of the stones placed in the road by Richardson.

Though the declaration in the former suit may be broad enough to include the subject matter of the second action, yet if upon the whole record it remains doubtful whether the same subject matter was actually passed upon, parol evidence may be received to show the truth. And it is competent for the defendant to show that the question involved in the second action was not passed upon in the first. 1 G-reenl. Ev., sec. 582, and cases there cited. If, from the general nature of the pleadings, the matter which has been tried does not appear upon the face of the record, it may be shown by other evidence. King v. Chase, 15 N. H. 14; Briggs v. Wells, 12 Barb. 567; Birkhead v. Brown, 5 Sandf. 134.

From these views it follows that to render the record in Shute’s case evidence generally in this action, it should have been shown that the recovery in that case was upon the same ground which is alleged as the cause of action in this case, and consequently that the ruling of the court below, that the record alone was conclusive evidence of all the facts required to support the action, after it had been shown that the defendant placed the stones in the highway, cannot be sustained; and, for the same reason, the ruling was incorrect that no evidence should be received to show that the judgment was not in fact recovered in any part on account of the stones.

As it was enough for Shute in his action to show that he sustained the damage he suffered by reason of all or any combination of the causes set forth in his declaration, it might not have been necessary for the parties to try, or for the jury to decide, whether the stone left by the plaintiff in the road specially contributed to the'injury. The whole state of facts existing in the case might have been so laid before the jury that it cannot, be ascertained whether or not the stone was regarded as material to the plaintiff’s right of recovery. If that cannot be shown the record is not evidence of anything but the fact of its recovery, and the amount, and it must then be for the jury to determine in the present case whether the damage to Shute was caused by the fault of the defendant in leaving this obstruction in the public highway.

If the evidence laid before the jury tends to show that the recovery in Shute’s case rested wholly upon the facts upon which the right of recovery in this case depends, the jury should have been instructed that if they were satisfied of that fact, the judgment was conclusive evidence of all the facts necessary to entitle the plaintiff to recover, except the act of leaving the stones there.

But as the court cannot determine beforehand how the fact was in that particular, nor how that question may be decided by the jury; and as the jury may believe that the question was not a material matter upon that trial, it is not seen upon what principle the evidence offered by the defendant, that the stones were such as Richardson might rightfully place where he did place them, that the accident was wholly produced by causes independent of the stones, and that the stones contributed in no part to the accident, could be rejected; and we are of opinion it ought to have been received.

It was objected, that the notice of the pendency of the action by Shute against Littleton was not sufficient, but we do not regard the objection as well founded.' The notice states the pendency of the action of Shute against the town : that it was for damages sustained by Shute, by reason of a stone placed in the highway by Richardson, to whom the notice was addressed ; that the town will hold him responsible for the damages recovered, and request him to appear at the court, and defend the action, and save the town harmless. This seems the proper information to be given and request to be made to a party supposed to be responsible in such a case.

The objection seems to be that the action referred to in the notice sets forth a very different ground of action from that stated in this case. But, as has been said, the declaration in that case was suitable and sufficient to entitle the plaintiff to recover for the cause alleged in this case, and we do not perceive that the additional allegations could in any way prejudice the defendant’s defence of that action.

It is objected, that the record of Shute’s judgment could not be evidence that the locus in quo was a public highway, but we have a different impression. This is a matter indispensible to be proved to entitle Shute to recover, and evidence disproving that fact, if such existed, must necessarily constitute a part of the defendant’s defence, if he had assumed to defend that action.

There is in the case a motion in arrest of judgment for several causes. The two first, that the action should be debt and not case, and that the action is not stated to be founded on a statute, are not insisted upon in argument, and do not seem well founded. Debt does not lie for a mere tort; and it is not necessary to refer to a statute in a civil case, though the action may be founded upon it. It is enough that the cause of action be so stated as to bring it within the requirements of the statute. The courts take notice of public statutes, as they do of the common law.

It is further moved in arrest, that it is not alleged in the declaration that there was a public highway at the place in question at the time of the accident. It is alleged it was a public highway on a day in September, but it is not alleged to have remained so afterwards. The exception seems unfounded, because, after alleging there was a highway there, September 1st, the declaration states that on the 13th of October after, Shute was passing over and along said highway, &c., which is a substantial allegation that the same highway remained at the date of the accident. But this fact must necessarily have been proved upon the trial, or the town could not have obtained a verdict, nor could Shute have recovered his judgment but upon proof of that fact. Any supposed defect resulting from the want of the usual allegation, that there was a highway there on the first of September, and ever since, is cured by the verdict.

As the rulings of the court are regarded as incorrect, the verdict must be set aside, and

A new trial granted.