313 Mass. 370 | Mass. | 1943
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 there
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.
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
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 element is described as that “the plaintiff has had ample opportunity to state his cause of action completely and correctly so as to have the issues tried” (page 551), obviously with the same meaning. See also Correia v. Portuguese Fraternity, 218 Mass. 305, 307. The words “leave to amend” are sometimes used as meaning the actual allowance of an amendment. See Rule 23 of the Superior Court (1932). But as used in these opinions and in an order sustaining a demurrer they do not mean the actual allowance of an amendment but mean rather "the exercise of discretion in favor of, rather than against, the filing of a permissible and appropriate amendment.” Massachusetts Gasoline & Oil Co. v. Go-Gas Co. 267 Mass. 122, 126. Allowance of an amendment, therefore, is necessary if the amendment is to be effective. Kaufman v. Buckley, 285 Mass. 83, 86. Nevertheless, giving to a plaintiff "leave to amend” his declaration within a fixed period furnishes him “ample opportunity to state his cause of action completely and correctly so as to have the issues tried,” or at
The second of the two elements essential to bring a case within the exception stated in the Whitney case is, as commonly stated, that the plaintiff has “refused” or “declined” to amend his declaration or to avail himself of the opportunity to do so. Correia v. Portuguese Fraternity, 218 Mass. 305, 307. 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, 550-551. Keljikian v. Star Brewing Co. 303 Mass. 53, 62. But refusal or declination so to do has no more significance in this connection than failure so to do. See Freeman on Judgments (5th ed.) § 747. Indeed, in the Keown case, though the word “declines” is used in one sentence, in the next preceding sentence occurs the language: “the plaintiff was given leave to amend his bill within thirty days after the order sustaining the demurrer, and did not avail himself of that privilege.” This language accurately states the elements essential to bring a case within the exception here under consideration to the ordinary rule that a judgment founded upon the sustaining of a demurrer does not constitute res judicata.
By a special order giving a plaintiff “leave to amend” within ten days, he is, in effect, given that period of time “within which to decide whether he can, or ought to, file a motion for amendment” (Kaufman v. Buckley, 285 Mass. 83, 86), and if he has filed no such motion he is to be taken to have elected to stand on the declaration as originally filed, for the purpose of determining whether a judgment
The language of the court in some of the cases referring to estoppel (see Correia v. Portuguese Fraternity, 218 Mass. 305, 307; Whitney v. Whitney, 299 Mass. 547, 551) does not require a different conclusion. Apparently this language in these cases refers to estoppel by judgment — a name sometimes applied to the doctrine of res judicata or to the effect of this doctrine. See Burlen v. Shannon, 99 Mass. 200, 202-203; Foye v. Patch, 132 Mass. 105, 112; Sly v. Hunt, 159 Mass. 151, 153; Giedrewicz v. Donovan, 277 Mass. 563, 565-566; Olsen v. Olsen, 294 Mass. 507, 509. But even if these references are not to estoppel by judgment but are rather to estoppel as commonly understood (see Freeman on Judgments [5th ed.] § 747), the elements of such an estoppel as applied to the situation disclosed by the record in the present cases are shown. It is said in Freeman on Judgments (5th ed.) § 747 that the estoppel of a judgment entered upon the sustaining of a demurrer is an estoppel “arising where a party litigant attempts to assume inconsistent and contradictory positions with respect to the same matter.” The proposition that a litigant cannot assume inconsistent and contradictory positions is established by our decisions. Boston v. Nielsen, 305 Mass. 429, 433. The position now taken by the plaintiff that the judgment entered in the earlier case upon the sustaining of the demurrer , is not to be treated as entered upon the merits is inconsistent with the position taken by him in the earlier case
2. The evidence offered by the plaintiff and excluded at the hearing on the affirmative defence of res judicata was excluded rightly. It was immaterial to any issue before the court. The record shows that the demurrer in the earlier case was sustained and leave to amend within ten days given on October 6, 1930. It is apparent from the record — and, as appears from the record, the judge who heard a motion to amend in 1933 ruled — that the case went to judgment in the year 1930. The evidence offered and excluded was that the plaintiff “hired an attorney ... to prosecute his action; that between 1930 and 1933 from time to time he communicated with his attorney, and asked him when the case was going to be reached for trial; that his attorney kept telling him that the case would be reached for trial in due course; that in 1933, on or about March 14, he requested . . . [another attorney] to check the docket entries in his case, and that the latter in checking the docket entries found that a- demurrer to . . . [the] declaration had been sustained by the court, and that leave to amend in ten days was given; that no further action was taken” by the original attorney; that the plaintiff “engaged counsel who took steps at once to file a substi
The evidence that the plaintiff was ignorant of the order sustaining the demurrer and giving him leave to amend was immaterial since he was bound to take notice thereof. Kaufman v. Buckley, 285 Mass. 83, 86. The evidence that the plaintiff at no time “elected, orally or in writing, to stand on the old declaration” and “that the plaintiff has not only not refused, but has also not declined to take steps to amend the original declaration,” also was immaterial. Clearly the evidence offered referred to affirmative action by the plaintiff but, as already stated herein, failure to file a motion to amend the declaration constituted such an election, and it is immaterial that the plaintiff never affirmatively refused or declined to do so. He is bound by his failure to file such a motion disclosed by the record. So far as the evidence offered tended to show negligence or misconduct on the part of the plaintiff’s attorney, it cannot avail the plaintiff to destroy the effect as res judicata of the judgment entered in the earlier action. While the judgment in the earlier action stands it constitutes a bar to the present action between the same parties in accordance with the doctrine of res judicata. And this judgment cannot be impeached collaterally by the plaintiff on the ground that it was obtained, by reason of negligence or misconduct of his attorney in the earlier action. Young v. Watson, 155 Mass. 77, 78. Long v. MacDougall, 273 Mass. 386, 388. Noyes v. Bankers Indemnity Ins. Co. 307 Mass. 567, 569.
Judgment for the defendant.