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There is nothing in the record to indicate that the plaintiff was guilty of any act of personal negligence which caused or contributed to cause the accident in which she was injured. The defendant, nevertheless, argues that she and her husband were engaged in a joint enterprise at the time of the accident, that each had an equal right to the control of the car, and so: ""Being guilty of actual participation in the act causing injury, even to , ... is precluded because of ... contributory negligence from recovering from... co-actor."" The soundness of this doctrine, and, if sound, its applicability to the facts of the case in hand, are both open to serious question. However, Discussion of the doctrine and its applicability is not invited because the defence of contributory negligence is not now open to the defendant. As to it, that matter is res adjudicata. The defendant had seasonable notice of the pendency of the action at law and was requested to assume its defence. This it declined to do, electing to disclaim coverage rather than to have that issue determined in advance of trial in the manner suggested in Sauriolle v. O'Gorman, 86 N.H. 39, 49. Under these circumstances it is bound by the judgment in that action as to issues which were, or might have been litigated therein (Morin v. Insurance Co., 85 N.H. 471), and the issue of the plaintiff's care is one of those issues. Gregg v. Company, 69 N.H. 247; Hubbard v. Gould, 74 N.H. 25.

Professional & Technical
June 4
LawApp Publishers

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