Tighe v. Skillings
| Decision Date | 28 June 1937 |
| Citation | 297 Mass. 504,9 N.E.2d 532 |
| Parties | THOMAS F. TIGHE v. JOHN SKILLINGS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 9, 1936.
Present: RUGG, C.
Res Judicata. Evidence, Presumptions and burden of proof.
The burden of proving that the grounds alleged for recovery in an action of tort are barred because res judicata is on the defendant.
Freedom from negligence on the part of the operator of a motor truck was not proved as a matter of law by a judgment for the defendant in an action against the owner of the truck for injury alleged to have been caused by such negligence, where the owner in his answer had alleged that the operator was not acting as his servant or agent and the record did not disclose the basis of the judgment; and on such record it was error to rule that such judgment was a bar to a later action by the same plaintiff for the same injury against the operator based on his negligence.
TORT. Writ in the Fourth District Court of Eastern Middlesex dated June 9 1932.
The action was heard by Nash, J., who found for the plaintiff in the sum of $728. Upon report to the Appellate Division for the Northern District, judgment was ordered entered for the defendant. The plaintiff appealed.
B. Goldman, for the plaintiff.
J. H. Dooley & W.
G. Reed, for the defendant, submitted a brief.
The plaintiff seeks in this action of tort to recover compensation for damage caused to his automobile by the negligence of the defendant. The answer of the defendant contained a general denial, an allegation of contributory negligence, and a plea of res judicata by reason of an action by the present plaintiff against the H. B. Church Truck Service Company. There was evidence tending to show these facts: At about quarter past seven on the morning of June 24 1929, a collision occurred on a public highway between a truck owned by the H. B. Church Truck Service Company and operated by the defendant and a truck owned by the plaintiff. The defendant, at the time and place in question, was in the employ of the H. B. Church Truck Service Company and engaged in its business. The defendant introduced evidence that an action was brought by the plaintiff in the Municipal Court for the Roxbury District of the City of Boston against the H. B. Church Truck Service Company for the same cause of action, wherein a finding was made in favor of the defendant on May 23, 1932. A motion for a new trial was seasonably filed and was denied after hearing. The record and papers in that case were admitted in evidence, subject to the exception of the plaintiff, on condition that the defendant show by records that he was a privy to the H. B. Church Truck Service Company. The answer of the defendant in that action contained a general denial and allegations of contributory negligence and that the automobile of the defendant at the time and place in question was not being operated for or in behalf of the defendant but that the operator was engaged in a matter in his own behalf and was not acting as a servant or agent of the defendant. Among the papers in that case were interrogatories propounded by the plaintiff to the defendant, one of which was this: "Please state whether the person driving the defendant's automobile at the time of the accident was on the business of the defendant." To that interrogatory the answer was "Yes." Testimony was offered to the effect that these interrogatories and answers were introduced in evidence at the trial in the Municipal Court for the Roxbury District. On objection by the plaintiff, this testimony was excluded, but the trial judge had no record of request for report of the exclusion by the defendant. There is no evidence in the record that the interrogatories and answers were introduced in evidence at the trial of the action of the plaintiff against the H. B. Church Truck Service Company. That offer of testimony cannot be considered. It was excluded. No request for a report of the exclusion was made. It is plain that the trial judge did not undertake to report that question. Mass. Building Finish Co. Inc. v. Brenner, 288 Mass. 481 , 484. Walsh v. Adams, 245 Mass. 1 , 9. Stangy v. Boston Elevated Railway, 220 Mass. 414 , 416.
At the close of the evidence the defendant made these requests for rulings:
The trial judge denied requests numbered 1, 2, and 6, denied number 5 as inapplicable to facts found, and allowed numbers 3 and 4; and found for the plaintiff. The defendant "claiming to be aggrieved by the rulings and refusals to rule as requested" and having failed by inadvertence, accident, or mistake to perfect his right to a report, the trial judge, exercising power conferred by G. L. (Ter. Ed.) c. 231, Section 108, made "a voluntary report of the case to the Appellate Division for determination of the questions of law presented by the said rulings and refusals to rule as requested." That report "contains all the evidence material to the question reported."
The Appellate Division found and decided that there was prejudicial error in denying the defendant's requests numbered 1 and 2, and ordered that the finding for the plaintiff be vacated and that finding be entered for the defendant. The appeal of the plaintiff brings the case here.
We do not pause to discuss whether, under a report of this nature by a trial judge of his own volition, questions of evidence may be reported....
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