302 Mass. 211 | Mass. | 1939
This is an action for personal injuries resulting from a collision between a motor truck driven by the plaintiff and an automobile driven by the defendant.
An auditor to whom this action was referred reported that in a former action for property damage caused by the
By reason of the stipulation the findings of the auditor as to the former action became a “case stated,” and this action is properly here by appeal. G. L. (Ter. Ed.) c. 231, § 96. Goewey v. Sanborn, 277 Mass. 168, 170. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 152. Vigneault v. Dr. Hewson Dental Co. 300 Mass. 223. Compare Pheeney v. Malden Coal Co. 300 Mass. 60.
The former adjudication was not a defence to this action. It is elementary and fundamental that every individual is entitled to his own day in court in which to assert his own rights or to defend against their infringement. The present plaintiff was not a party to the former action. He is not in privity with any party in the sense that his rights are derived from one who was a party. His cause of action is and always has been his own. It is in no way derived from his employer, who was a party. The relation of employer and employee, in and of itself, does not confer upon the employer any power to represent or to bind the employee in litigation. That the plaintiff testified as a witness in the former action is immaterial. He had no control over the conduct of the trial. He could not cross-examine opposing witnesses. The essential elements of an estoppel by judgment are lacking. Burlen v. Shannon, 3 Gray, 387, 389, 390.
This case is readily distinguished from Giedrewicz v. Donovan, 277 Mass. 563. There the plaintiff had already had a complete trial of his own case under his own management and sought a second opportunity to prove the same facts which he had failed to prove the first time. Here the plaintiff had no previous opportunity to prove his. case. Compare Tighe v. Skillings, 297 Mass. 504; McAlevey v. Litch, 234 Mass. 440.
The order appealed from is reversed, and judgment is to be entered for the plaintiff in the amount found by the auditor with costs.
So ordered.