Cote v. New England Navigation Co.

• Decision Date: 27 November 1912
• Citation: 213 Mass. 177,99 N.E. 972
• Parties: COTE v. NEW ENGLAND NAVIGATION CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 177

99 N.E. 972

COTE v. NEW ENGLAND NAVIGATION CO.

Supreme Judicial Court of Massachusetts, Bristol.

November 27, 1912

COUNSEL

Arthur S. Phillips, of Fall River, for plaintiff.

Arthur W. Blackman, of Boston, for defendant.

OPINION

RUGG C.J.

This is an action of contract. The declaration alleges that the defendant as common carrier received a log of veneer of the value of $62 shipped to the plaintiff, which it failed to deliver. The only defense now material is that the plaintiff has sued the New York, New Haven & Hartford Railroad Company for the same cause of action, wherein the plaintiff recovered judgment which had been satisfied The defendant admitted that it transported the veneer. It was undisputed that prior to the present action the plaintiff had brought action against the New York, New Haven & Hartford Railroad Company, in which the declaration was in three counts, the first in contract alleging failure as a common carrier to deliver to the plaintiff the log of veneer valuded at $62, the second count also in contract for failure as common carrier to transport oak stain to the value of $13.50, and (the plaintiff alleging doubt whether his action sounded in tort or contract) a third count in tort alleging conversion of both the log of veneer and the wood stain, the respective values of which were averred to be the same as in the contract counts. The log of veneer referred to in that declaration was the same as that which is the subject of the present action.

The defendant offered in evidence the full record of the earlier action, which showed judgment for the plaintiff in the sum of $13.50, and judgment satisfied. The plaintiff called as a witness the magistrate, before whom that action was tried. Subject to the exception of the defendant, he read from a paper in his possession, which was a motion by the plaintiff to discontinue his action set forth in the first count, and testified that the paper was left with him by the plaintiff's attorney at the trial of the action. Ascertaining on June 17, 1912, that this paper bore no file mark, he directed the clerk of the court to file the paper and caused the docket to be amended accordingly, and that the paper was in truth filed on June 19, 1911, which was the date of the trial of that action. The duly certified copy of the record in evidence did not show the filing or allowance of any such motion or any other motion affecting the declaration or the plaintiff's claims under it at the trial. It is to be observed that this testimony did not relate to the matters actually tried out and decided in the action, but merely to the court record. Plainly, the admission of this evidence was improper. It was said in Wells v. Stevens, 2 Gray, 117: 'No principle is more firmly established than that which excludes oral testimony when offered to vary or contradict written judicial records. The record of a court of competent jurisdiction imports incontrovertible verity as to all the proceedings which it sets forth as having taken place, and is of so high a nature that no averment can be made against it.' The record failed to show the presentation or allowance of the motion, and no parol evidence was admissible to amplity, modify or contradict it. This rule is based upon considerations of public policy, and is too well established to require discussion. Kelley v Dresser, 11 Allen, 31; Lund v. George, 1 Allen, 403; Sayles v. Briggs, 4 Metc. 421; Speirs Fish Co. v. Robbins, 182 Mass. 128, 65 N.E. 25.

But the defendant fails to show that it has suffered injury. The defendant in support of its plea of former judgment and satisfaction, offered no other evidence except the record. From this it appeared that the action was not between the same parties as those to the present action. Hence the general rule, that a judgment on its merits in a former action between the same parties is a bar, as to every issue which in fact was or in law might have been litigated, to later action upon the same cause, has no application. There is nothing to indicate that the present defendant is a privy of the defendant in the earlier action. Apparently they are strangers. The defense is different in kind, and is founded on another rule, to the effect that a plaintiff cannot obtain twice satisfaction for the same debt or wrong. The plaintiff as a shipper of merchandise can have but one satisfaction of the debt or claim due to him for the failure to deliver his property, which the defendant undertook to transport as a common carrier. If his cause of action sounds in contract and both the defendant and the New York, New Haven and Hartford Railroad Company have been guilty of a breach resulting in the same harm to the plaintiff, there can be but one satisfaction of the obligation. Gilmore v. Carr, 2 Mass. 171; Savage v. Stevens, 128 Mass. 254, and cases cited; Stimpson v. Poole, 141 Mass. 502, 504, 6 N.E. 705; Simpson v. Mercer, 144 Mass. 413, 11 N.E. 720; Vanuxem v. Burr, 151 Mass. 386, 24 N.E. 773, 21 Am. St. Rep. 458; Burnham v. Windram, 164 Mass. 313, 316, 41 N.E. 305; New York Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass. 391, 408, 78 N.E. 463; Crow v. Bowlby, 68 Ill. 23; Jenners v. Oldham, 6 Blackf. (Ind.) 235. If it sounds in tort and both defendants have joined in the wrong, separate judgments may be had against each wrongdoer, though there can be but one satisfaction. Corey v. Havener, 182 Mass. 250, 65 N.E. 69. The decisions of this court go rather far in holding...