Giedrewicz v. Donovan

• Decision Date: 12 January 1932
• Citation: 277 Mass. 563,179 N.E. 246
• Parties: GIEDREWICZ v. DONOVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 563

179 N.E. 246

GIEDREWICZ

v.DONOVAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 12, 1932.

Report from Superior Court, Middlesex County; Donahue, Judge.

Action by Stacia Giedrewicz, p. p. a., against Francis X. Donovan. On report from the Superior Court.

Order sustaining plaintiff's demurrer to part of amended answer reversed. Demurrer overruled.

J. K. Jerome, of Boston, for plaintiff.

L. Powers, of Boston, for defendant.

SANDERSON, J.

This is an action of tort for personal injuries brought by a pedestrian against the operator of an automobile. The plaintiff's demurrer to the third and fourth paragraphs of the amended answer was sustained, and at the request of both parties the trial judge, being of opinion that his order on the demurrer ought to be determined by this court before further proceedings in the superior court, reported the case upon the declaration, amended answer, demurrer and order sustaining the demurrer.

The third paragraph of the answer alleged that by writ, dated May 16, 1927, the plaintiff brought an action of tort against the New England Telephone and Telegraph Company, in the District Court of the United States for the district of Massachusetts, to recover damages as the result of the same accident, asserting that the telephone company was liable because of negligence of its agent in operating a motor vehicle; that in that action the jury found for the defendant; that before the trial of that case the plaintiff called on the telephone company to admit for the purposes of that trial certain facts, and that the telephone company admitted that Francis X. Donovan, the defendant in the present case, was an employee of the telephone company acting within the scope of his employment and operating the motor vehicle with which the plaintiff was in collision, wherefore the alleged cause of action against Francis X. Donovan is res judicata.

In the fourth paragraph of the answer the allegations of fact above set forth were repeated, and the paragraph concluded with the statement that the two causes of action were substantially identical and that the judgment in the former case against the principal is a bar to the present action against the agent on the ground of public policy.

The general rule is well established that a judgment is a bar to a subsequent action only when the parties or their privies are the same in both actions. Sprague v. Waite, 19 Pick. 455;Sturbridge v. Franklin, 160 Mass. 149, 35 N. E. 669;Lunt v. AEtna Life Ins. Co. of Hartford, 261 Mass. 469, 474, 159 N. E. 461. In McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, at page 567, 107 N. E. 439, the court said, that the doctrine of res judicata is that the determination on its merits of an issue of fact or law ‘by the judgment of a court of competent jurisdiction, constitutes a bar to any further litigation upon the same matter either by the parties or by their privies.’ It is only ‘a judgment in rem or one affecting the status of persons or things' that is ‘conclusive as to all the world.’ ‘A verdict and judgment are conclusive by way of estoppel only as to those facts which were necessarily involved in them, without the existence and proof or admission of which such a verdict and judgment could not have been rendered. An estoppel is an admission or determination under circumstances of such solemnity that the law will not allow the fact so admitted or established to be afterwards drawn in question between the same parties or their privies. * * * When a fact has been once determined in the course of a judicial proceeding, and a final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which from motives of public policy the law does not permit to be done.’ Burlen v. Shannon, 99 Mass. 200, 202, 203,96 Am. Dec. 733. In Bigelow v. Winsor, 1 Gray, 299, 301, 302, the court said: ‘One valid judgment, by a court of competent jurisdiction, between the same parties, upon considerations as well of justice as of public policy, is held to be conclusive, except where a review, an appeal, or rehearing in some form, is allowed and regulated by law. No man is to be twice vexed with the same controversy.’ Biggio v. Magee, 272 Mass. 185, 188, 172 N. E. 336.

In an opinion by Van Devanter, J., in Portland Gold Mining Co. v. Stratton's Independence (C. C. A.) 158 F. 63,16 L. R. A. (N. S.) 677, a comprehensive review of decisions of many state courts appears. There the situation differs from that in the case at bar in that the agent was first sued and then the principal, but no distinction was suggested on that ground provided the issues in the two cases are identical. The opinion states at pages 68, 69 of 158 F.: ‘Thus it is settled by repeated decisions that the general rule that one may not have the benefit of a judgment as an estoppel unless he would have been bound by it had it been the other way is subject to recognized exceptions, one of which is that in actions of tort, such as trespass, if the defendant's responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel, even though he would not have been bound by it had it been the other way.’ The principle was recognized in Buckeye Powder Co. v. E. I. Du Pont de Nemours Powder Co., 248 U. S. 55, 62, 39 S. Ct. 38, 63 L. Ed. 123.

Emery v. Fowler, 39 Me. 326, 63 Am. Dec. 627, was an action of trespass against one who had acted under his father's direction. In a prior action by the same plaintiff against the father for the same act the father had admitted that the son had acted under his direction, and the judgment was in his favor. The court held that this judgment was a bar to the action against the son. The opinion states at page 329 of 39 Me.: ‘In such cases the technical rule, that a judgment can only be admitted between the parties to the record or their privies, expands so far as to admit it, when the same question has been decided and judgment rendered between parties responsible for the acts of others.’ In Jenkins v. Atlantic Coast Line R. Co., 89 S. C. 408, 71 S. E. 1010, a judgment in favor of a lessor was held to be a bar to an action against the lessee for the same cause of action. In that case the court said at page 412 of 89 S. C.,71 S. E. 1010, 1012: ‘* * * the true ground upon which a former judgment, in a case like this, should be allowed to operate as a bar to a second action is not res judicata, or technical estoppel, because the parties are not the same, and there is no such privity between them as is necessary for the application of that doctrine; but that in such cases, on grounds of public policy, the principle of estoppel should be expanded, so as to...