Karcher v. Burbank Et Al‪.‬

COX, Justice. The only question in this case is whether the final decree, from which the defendants appealed, should have been entered enjoining, as it did, the defendants from further prosecution of suits brought by them against the American Sugar Refining Company, hereinafter referred to as the company, and from instituting or pressing any action or claim against that company on account of injuries received by the defendants by reason of an automobile accident involving a motor vehicle in which they were riding and a motor vehicle owned and operated by the plaintiff. The case was heard by a Judge of the Superior Court on the bill and answer. Rule 31 of the Superior Court (1932). For the purposes of such a hearing all facts well pleaded in the answer, and all facts well pleaded in the bill and not denied in the answer, are treated as true, and the question is whether the plaintiff is entitled to relief upon the pleadings. Polish Political Club v. Cloper, 260 Mass. 559, 157 N.E. 705; Joslin v. Boston & Maine Railroad, 274 Mass. 551 175 N.E. 156 and cases cited. Boston v. Curley, 276 Mass. 549, 177 N.E. 557; Borggaard v. Department of Public Works, Mass., 10 N.E.2d 724. The allegations of the bill here admitted and not denied in the answer are that on or about November 21, 1935, there was a collision between an automobile operated by the plaintiff and the automobile in which the defendants were riding, and, as a result, the defendants were injured; that on or about July 22, 1936, the defendants, in consideration of the sum of $7,200 paid to them by the plaintiff, covenanted and agreed as follows: We, Harold Burbank and Mary Burbank, Individually and as husband and wife, of East Bridgewater in the County of Plymouth and Commonwealth of Massachusetts for my heirs, executors and administrators, in consideration of Seventy-two Hundred and 00/100 Dollars * * * to us paid by Carl A. Karcher the receipt of which is hereby acknowledged, do by this instrument covenant with said Carl A. Karcher to forever refrain from instituting, pressing or in any way aiding any claim, demand action or causes of action for damages, cost, loss of service, expenses or compensation for, on account of, or in any way growing out of any injury received by us on or about the 21st day of November, 1935 at or near Elm Street, Raynham, Massachusetts by reason of Automobile accident involving motor vehicle in which we were riding and motor vehicle owned and operated by the said Carl A. Karcher. This instrument was signed and sealed by both of the defendants. The bill further alleges that the defendants have brought actions, now pending in the District Court of the United States, against the company to recover compensation and damages for their said injuries; that in these actions recovery is sought on the ground that the plaintiff in the case at bar was negligent and that at the time of the accident he was an agent or servant of the company. The defendants in their answer aver that, at the time of their injuries, the plaintiff was operating the automobile as an agent for the company. It was admitted that the plaintiff had received a notice from the company to defend these suits and that he had been notified that it would hold him liable for the payment of any judgments which the defendants might obtain in their actions.