Elfman v. Glaser

• Decision Date: 29 March 1943
• Citation: 313 Mass. 370,47 N.E.2d 925
• Parties: SAMUEL E. ELFMAN v. ISRAEL GLASER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 370

47 N.E.2d 925

SAMUEL E. ELFMAN v. ISRAEL GLASER.

Supreme Judicial Court of Massachusetts, Suffolk.

March 29, 1943

October 6, 1941.

Present: FIELD, C.

J., DONAHUE, COX & RONAN, JJ.

Res Judicata. Practice, Civil, Amendment. Judgment. Words, "Leave to amend."

A judgment in an action at law, rendered on the sustaining of a demurrer to the declaration, is treated as based on the merits within the doctrine of res judicata if, although the demurrer was sustained by reason of insufficiency of the statement of the cause of action in the declaration, the plaintiff was given an opportunity to amend for the purpose of correcting the defect and did not avail himself of the opportunity.

A plaintiff in an action at law, to whose declaration a demurrer has been sustained by reason of insufficiency of the statement of the cause of action, "with leave . . . to amend within ten days," is bound to avail himself of the opportunity to amend thus given him if he is to avoid an application of the doctrine of res judicata to a judgment entered upon his not doing so, irrespective of whether he had actual notice of such opportunity.

Judgment for the defendant in an action, entered after a demurrer to the declaration had been sustained for insufficiency of the statement of the cause of action "with leave to plaintiff to amend" within a specified time and after the plaintiff had failed to take any further steps, barred on the ground of res judicata a subsequent action between the same parties for the same cause even if the plaintiff personally had been ignorant of the order giving him leave to amend and had not affirmatively refused to avail himself of the opportunity to do so and the failure to do so had been due to negligence or misconduct of his attorney.

TORT. Writ in the Municipal Court of the City of Boston dated December 3, 1935.

Upon removal to the Superior Court, the action was heard by Buttrick, J.

J. B. Abrams, (F.

G. Hinckley with him,) for the plaintiff.

M. Caro, (S.

Z. Kaplan with him,) for the defendant.

FIELD, C.J. This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff as a result of the negligent failure of the defendant to maintain in a reasonably safe condition a freight elevator appurtenant to the premises of the defendant. The defendant pleaded general denial, contributory negligence, and res judicata.

The case came on to be heard before a judge of the Superior Court sitting without a jury. Upon motion of the defendant the case was heard upon the affirmative defence of res judicata. The defendant offered in evidence the record and pleadings of another action in the Superior Court. The plaintiff made offers of proof hereinafter referred to. They were excluded and the plaintiff excepted. The judge made a finding for the defendant, ruling that the defence of res judicata was made out. The plaintiff excepted. The judge then reported the case to this court "as to the correctness of . . . [his] rulings."

It was agreed that the parties to the two cases were the same. And it appears from a comparison of the declarations in the two cases -- and the plaintiff makes no contention to the contrary -- that both cases were brought for the same cause of action. Obviously the plaintiff, in the two cases, was seeking a remedy for the same wrong. The defendant in the earlier case filed a demurrer to the declaration -- which was in two counts -- on the grounds "(a) That said declaration does not state with substantial certainty the substantive facts necessary to maintain the cause of action. (b) That the matters contained in said counts are insufficient in law to enable the defendant [sic] to maintain an action of tort." On this demurrer the indorsement was made "Demurrer sustained with leave to plaintiff to amend within ten days."

Nearly two years and a half thereafter the plaintiff filed a motion for leave to file a substitute declaration to which was attached a copy of the proposed substitute declaration. A judge of the Superior Court after hearing this motion made findings rulings and an order as follows: "The plaintiff did not move to amend within the ten days or thereafter until March 20, 1933, nearly two years and a half after the order sustaining the demurrer. Nothing was filed and no action was taken in the interval. Under these circumstances the case was ripe for judgment upon the expiration of the time allowed for appeal from or exception to the order sustaining the demurrer, and actually went to judgment on the first Monday thereafter under Common Law Rule 56 (1923). G.L.c. 235 Section 1. . . . I deny the plaintiff's request for ruling attached hereto, and I rule as matter of law that the plaintiff's motion to amend cannot be allowed at this time, and order said motion dismissed and said motion and `Plaintiff's Substitute Declaration' stricken from the files." The findings, rulings and order also contained the following: "At the hearing of this motion I heard statements of counsel and evidence from the plaintiff himself as to the reasons for the plaintiff's delay in moving to amend his declaration. In consequence of facts then appearing, I would, if it were a matter of discretion, though with some hesitation, allow the plaintiff to file a proper substitute declaration at this time, notwithstanding the delay; but I would not allow the proposed substitute declaration which was filed with the motion for the reason that such proposed declaration does not seem to me to show clearly" certain facts. Thereafter the plaintiff filed a further motion to file a substitute declaration accompanied by a proposed substitute declaration. Upon this motion the judge who had dealt with the earlier motion made the following order: "I would allow the within motion in so far as it is a mere matter of discretion but I rule, as I have heretofore ruled, that this action has gone to judgment. . . . I therefore deny the plaintiff's request for ruling hereto attached and order this motion dismissed and the motion and proposed substitute declaration stricken from the files." Exceptions saved by the plaintiff to these orders were never perfected.

1. The judge at the hearing on the affirmative defence of res judicata was right in ruling, on the record and pleadings in the earlier case between the same parties introduced in evidence, that the defence of res judicata was made out.

The governing principle, as stated in Whitney v. Whitney, 299 Mass. 547 , 550-551, is as follows: "It is a general rule that a judgment for the defendant founded on a demurrer is not a bar to a second action. The reason for the rule is that such a judgment commonly is based not on the merits but upon the insufficiency of the statement of the cause of action. . . . An exception to that general rule has grown up in cases where the plaintiff has been given leave to amend his pleading and has declined to amend and a judgment has thereafter been entered founded on the sustaining of the defendant's demurrer. In such cases a judgment operates as a bar to a second action. In such a case `the judgment rendered on demurrer commonly is treated as based on the merits.' Keown v. Keown, 231 Mass. 404 , 408. It is well settled that in appropriate circumstances a judgment rendered on a demurrer is as conclusive as one rendered upon the hearing of evidence. . . . In these conditions, where a plaintiff has refused to amend his pleading a judgment rendered on a demurrer causes the matter to become res judicata as between the parties `as to every issue which was or might have been litigated in that action and' estops the plaintiff `from contesting the matter further.' Correia v. Portuguese Fraternity, 218 Mass. 305 , 307. . . . The doctrine of res judicata, therefore, applies where the issues have in fact been fully tried and in cases where the plaintiff has had ample opportunity to state his cause of action completely and correctly so as to have the issues tried but has refused to embrace that opportunity." The exception here stated to the rule that ordinarily a judgment founded upon the sustaining of a demurrer does not constitute res judicata is to be distinguished from the exception to this rule "when the demurrer in the earlier action is based on the merits." Capaccio v. Merrill, 222 Mass. 308 , 310, and cases cited. Abbott v. Bean, 295 Mass. 268 , 273. See also McGrath v. Sullivan, 303 Mass. 327 , 328-329. In the case now before this court the record and pleadings in the earlier case do not show that the demurrer to the declaration in that case was sustained on the merits. But the exception stated in the

Whitney case is applicable, and a judgment rendered on the sustaining of a demurrer is "treated as based on the merits" (Keown v. Keown, 231 Mass. 404, 408), when, though the demurrer was sustained by reason of insufficiency of the statement of the cause of action or other defect in form or substance in the declaration, the plaintiff had an opportunity to amend for the purpose of correcting the defect in the declaration and did not avail himself of the opportunity.

On the evidence that was admitted, the present case as matter of law falls within the exception stated in the Whitney case. The first of the two elements essential to bring a case within this exception is, as commonly stated, that the plaintiff had been given "leave to amend" his declaration in the earlier case. Capaccio v. Merrill, 222 Mass. 308 310. Keown v. Keown, 231 Mass. 404 , 408. Abbott v. Bean, 295 Mass. 268 , 275. Whitney v. Whitney, 299 Mass. 547 , 550. Keljikian v. Star Brewing Co. 303 Mass. 53 , 62. While in the opinion in the Whitney case (page 550) this common expression is used, elsewhere in the opinion this essential...