Giedrewicz v. Donovan

SANDERSON, J. This is an action of tort for personal injuries brought by a pedestrian against the operator of an automobile.
The plaintiff's demurrer to the third and fourth paragraphs of the amended answer was sustained, and at the request of both
parties the trial Judge, being of opinion that his order on the demurrer ought to be determined by this court before further
proceedings in the superior court, reported the case upon the declaration, amended answer, demurrer and order sustaining the
demurrer. The third paragraph of the answer alleged that by writ, dated May 16, 1927, the plaintiff brought an action of tort against
the New England Telephone and Telegraph Company, in the District Court of the United States for the district of Massachusetts,
to recover damages as the result of the same accident, asserting that the telephone company was liable because of negligence
of its agent in operating a motor vehicle; that in that action the jury found for the defendant; that before the trial of
that case the plaintiff called on the telephone company to admit for the purposes of that trial certain facts, and that the
telephone company admitted that Francis X. Donovan, the defendant in the present case, was an employee of the telephone company
acting within the scope of his employment and operating the motor vehicle with which the plaintiff was in collision, wherefore
the alleged cause of action against Francis X. Donovan is res judicata.