McCarthy v. William H. Wood Lumber Co.
| Decision Date | 31 December 1914 |
| Citation | 219 Mass. 566,107 N.E. 439 |
| Parties | McCARTHY v. WILLIAM H. WOOD LUMBER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. G. Thompson and G. E. Mears, both of Boston, for plaintiff.
Sprout & Kendall, of Boston, for defendant.
This is an action of tort whereby the plaintiff as administrator of the estate of Sarah A. McCarthy seeks to recover damages under R. L. c. 171, § 2, St. 1907, c. 375, for her death alleged to have been occasioned by the negligence of a servant of the defendant. An action had been brought by the deceased during her life (which after her death was prosecuted to a judgment in his favor by the plaintiff as her administrator) to recover damages for her conscious suffering flowing from the same injury, which caused her death. The present case is reserved by a judge of the superior court for the determination of the correctness of rulings as to answers to interrogatories propounded by the plaintiff to the president of the defendant. These rulings were in substance that the plaintiff, although the same individual who prosecuted the former action to final judgment, was for the purposes of the law of res judicata not the same person in each action. The question to be decided is whether this ruling was right.
Res judicata in its fundamental conception means that an issue of law or fact, once determined on its merits 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. Burlen v Shannon, 99 Mass. 200, 203, 96 Am. Dec. 733; Sly v Hunt, 159 Mass. 151, 153, 34 N.E. 187, 21 L. R. A. 680, 38 Am. St. Rep. 403; Eastman v. Cooper, 15 Pick. 276, 285, 26 Am. Dec. 600; Sawyer v. Woodbury, 7 Gray, 499, 502, 66 Am. Dec. 518; Bigelow on Estoppel (6th Ed.) 40. It binds third persons, or becomes conclusive as to all the world only when it is a judgment in rem or one affecting the status of persons or things. Hood v. Hood, 110 Mass. 463.
The damages recovered by plaintiff in the former action became assets of the estate of the intestate in his hands available for all uses and expenses and distributions, to which general assets may be applied. The damages which may be recovered in the present action will not be assets of the deceased in the hands of the administrator, but under the statute are to go (there being no widow) to the next of kin of the deceased.
The present cause of action is altogether different in kind from that of the earlier action. It did not arise until after the death of the deceased. She might have settled the former cause of action during her life or made a contract touching that subject which would have bound her administrator. But she had no control over the present cause of action and any attempt on her part to manage it would have been futile. It is a cause of action unknown to the common law and rests wholly upon statute, while the other was an action recognized by the common law. The present action is penal in its nature, damages being not compensatory but assessed solely with reference to the culpability of the defendant, while in the other action damages were recoverable only by way of compensation. The damages sought in the present action are in substance a fine imposed by the court upon one who by negligence causes the death of a human being The fine, instead of being paid into the treasury of the commonwealth, is given as a gratuity to the next of kin. Boott Mills v. Boston & Maine Railroad, 218 Mass. 582, 106 N.E. 680 and cases there collected.
The plaintiff contends that, although the two causes of action are different, yet the parties are the same and hence the former judgment is conclusive in this action as to such issues as necessarily were involved or were in issue and actually decided in the determination of the earlier case. Foye v. Patch, 132 Mass. 105, 110; Virginia-Carolina Chemical Co. v. Kirven, 215 U.S. 252, 257, 30 S.Ct. 78, 54 L.Ed. 179. Whether this contention is sound or not depends upon the determination of the further question whether the plaintiff in the present action is the same party, in the sense in which that word is used in the statement of the doctrine of res judicata, as was the plaintiff in the former action, or is in privity with that plaintiff. The plaintiff in the former case in the strict sense represented the deceased and stood in her shoes. In the present case he does not represent her or her estate. The cause of action does not come to him as a survival from his intestate, but as an obligation springing into existence after her death, which becomes in a sense a trust in his hands to be executed wholly for the benefit of the next of kin, and not at all for the benefit of her estate. The administrator is selected merely as a convenient instrumentality for the collection of the fine which in substance the law imposes for negligently causing the death. It might as well have been recovered by indictment and paid through government officials, as was formerly provided in all our death statutes and as still is permitted as an alternative remedy against railroads and street railways. Or a direct action by the beneficiary might have been allowed, as is now provided by our Employers' Liability Act, to the widow of an employé who died without conscious suffering. Gustafsen v. Washburn & Moen Mfg. Co., 153 Mass. 468, 27 N.E. 179. In such cases it would be plain that the administrator would have nothing to do, directly or indirectly, with the proceeding for the collection of the penalty and no interest immediate or remote in its result. One principle upon which rests the doctrine of res judicata is that there has been a judicial inquiry into the subject-matter in which the person to be affected by the judgment has had an opportunity either personally or by representative to be heard fully. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 211, 89 N.E. 193, 40 L. R. A. (N. S.) 314. That principle in some instances might be quite incapable of application; as, for instance, in the case at bar if the intestate had prosecuted to final judgment the first case before her death. This appears in reason, therefore, to be a case where the plaintiff in the present action is suing in a different capacity from that in which he prosecuted the earlier action.
The authorities are to the same effect. Brennan v. Standard Oil Co., 187 Mass. 376, 73 N.E. 472, was a case where there was an attempt to combine in one action a first count for death under this same statute (before the enactment of St. 1911, c. 31, by which such joinder expressly is allowed) and a second count for conscious suffering at common law. It then was said by Chief Justice Knowlton:
See also, Corbett v. Boston & Maine R. R. 107 N.E. 60. It has been held under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]) that there was not identity of parties, in the sense of res judicata, between the administrator of the estate of a deceased employé and his widow and children as the sole beneficiaries under that law. Troxell v. Delaware, Lackawanna & Western R. R., 227 U.S. 434, 442, 33 S.Ct. 274, 57 L.Ed. 586. See American R. R. v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879, and Winfree v. Northern Pacific Ry. 227 U.S. 296-302, 33 S.Ct. 273, 57...
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