272 Mass. 185 | Mass. | 1930
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff on October 7, 1927, through collision between an automobile owned and operated by him with an automobile operated negligently by the defendant on a public way. It was agreed that evidence introduced by the plaintiff at the trial was sufficient to show liability on the part of the defendant. The defendant introduced the record of a judgment in the Superior Court in an action of tort between the present defendant as plaintiff and the present plaintiff as defendant arising out of the same collision and involving
Confessedly the parties to the earlier action were the same as the parties to the present action. Each was an action of tort. It is manifest that the issues raised on the pleadings in the other action were the same as those in the present action. The declaration of the plaintiff in each case was the same in substance. In each case the answer of the defendant was a general denial and an allegation of contributory negligence on the part of the plaintiff. The plaintiff in the other case could not recover unless it was proved that he was injured by reason of the negligence of the defendant as the proximate cause and unless it also appeared under the law that his own want of due care did not contribute to that injury. O’Connor v. Hickey, 268 Mass. 454. Judgment for the plaintiff in that action imports negligence on the part of Biggio as the proximate cause of the injuries to Magee and freedom of Magee from negligence as a contributing factor to those injuries on the same facts put in issue in the case at bar. If that judgment had been founded on a verdict of a jury or a finding of a judge there could be no question that it would be a bar to the present action on the doctrine of res judicata. On reason that doctrine is equally applicable to a judgment such as here was shown entered by consent in an action
The plaintiff was permitted to file a replication setting up as an equitable ground for relief that the attorney, who agreed to the entry of the judgment in his behalf in the other case, in truth represented the insurance company which had issued to him a policy of indemnity insurance against loss arising from the causes such as the one alleged in the declaration in that case and that he agreed to that judgment without the knowledge or assent of the plaintiff. Comstock v. Livingston, 210 Mass. 581. At the trial the plaintiff offered to show that by the policy of indemnity insurance issued to him the insurance company agreed to defend all actions brought against him of the nature of the other action and had the option to settle in his name and behalf all such claims even if groundless or fraudulent, that neither he nor his personal attorney who had also appeared for him in that action knew of the settlement of that action until long afterward, and that neither the insurance company nor its
There was no error in the exclusion of that offer of proof. It affected in no material respect the authority of the attorney who made the settlement and agreed to the judgment to act in the name and behalf of the present plaintiff as defendant in that action. The mere intent of one attorney or the attorney for one party to an action at law cannot change the operation of the judgment of the court. There was nothing in this offer of proof to dull the effect of the doctrine of res judicata arising from the judgment in the other action. Finneran v. Leonard, 7 Allen, 54. McGillvray v. Employers’ Liability Assurance Corp. 214 Mass. 484, 486.
Since the plaintiff’s exceptions are overruled, the exceptions and appeal of the defendant become immaterial and need not be considered in detail or on their merits.
Defendant’s exceptions overruled.
Defendant’s appeal dismissed.
Plaintiff’s exceptions overruled.