The plaintiff administrator, in separate actions, brought under G. L. (Ter. Bd.) c. 229, § 5, recovered judgments for the death of his testator against the individual defendant in this suit and against her daughter.
The defendant insurance company, which had issued to the mother a motor vehicle liability insurance policy, has paid to the plaintiff administrator the amount of the judgment recovered by him in the action in which the daughter was the defendant. The plaintiff by this bill in equity seeks to reach and apply to the payment of the judgment in the action in which the mother was the defendant, the obligation of the insurance company under its policy. G. L. (Ter. Ed.) c. 214, § 3 (10). A judge of the Superior Court entered a decree dismissing the bill with costs.
The defendant insurer makes the contention that the daughter did not, at the time of the accident, have the status of an agent of the mother. That contention is not now open. An “agreed statement of facts” contains the agreement of the parties that “the negligence complained of and proved” in the two actions brought to recover for the death of the plaintiff’s testator was the negligence of the daughter, and that no negligence of the mother contributed to cause the death. The judgment against the mother therefore must necessarily have included the adjudication that, while not personally negligent, she was legally responsible for the result of negligent operation of the automobile by her daughter because of an agency relationship existing between them. See G. L. (Ter. Ed.) c. 229, § 5; McNeil v. Powers,
The question here presented is whether the satisfaction of a judgment against an agent in an action brought to recover for the death of a person under G. L. (Ter. Ed.)
It is the general rule that, although judgments may be recovered against all persons participating in a single wrong, there can be only one full satisfaction or indemnity. Stone v. Dickinson,
In the present case there was a single tort: the negligence of the daughter in operating the automobile. No negligent act or omission of the mother played any part in the causation of the death of the plaintiff's testator. The right of the plaintiff administrator to bring the original action against the mother was created by a statute which in terms gave-a right of action against a person for a death negligently caused by his agent. G. L. (Ter. Ed.) c. 229, § 5. Negligence of the principal himself is not an element entering into the determination of liability in such a case. The liability of the mother in the present case was based, not on any personal fault, for there was none, but on the agency relationship which existed between the mother and her negligent daughter. Her liability was derivative, not arising from any wrong committed by her. See Gilpatrick v. Cotting,
Since there was only one wrong, in which the mother did not personally participate, and legal satisfaction has been made for that wrong by the payment of the amount of the judgment in the case where the daughter was the defendant, the punitive requirements of the death statutes have been met. They do not require that a double penalty be exacted for a single wrong. The plaintiff is not entitled to payment by the insurer of the amount awarded as damages in the case where the mother was the defendant.
It is agreed that the plaintiff administrator recovered judgment, in the case in which the mother was the defendant, for the sum of $5,000 damages and $126 costs and interest. The plaintiff had the right to prosecute to final judgment both that action and the action in which the daughter was the defendant, although there can be satisfaction for damages in one action only. Since the actions were separate he also had the right to collect costs in both actions after he had obtained judgment in both. Savage v. Stevens,
The decree is reversed and a decree is to be entered in favor of the plaintiff for the payment of $126 and costs.
Ordered accordingly.