City of Boston v. Worthington

Metcalf, J.

Southwick’s judgment against the plaintiffs is conclusive against the defendants, as to all the facts thereby established, provided the defendants had due notice of the pendency of the action in which that judgment was recovered, and had an opportunity to defend it. So far the adjudications are decisive. In Littleton v. Richardson, 34 N. H. 187, Bell, J. thus states the law : “ When a person is responsible over to another, either by operation of law or by express contract, and he is duly notified of the pendency of the suit, and requested to take upon him the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he was the real and nominal party upon the record. In every such case, if due notice is given to such person, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he has appeared or not.” In addition to the authorities there cited in support of this position, see Clark v. Carrington, 7 Cranch, 322; Hamilton v. Cutts, 4 Mass. 353; Bond v. Ward, 1 Nott & McCord, 201; Kip v. Brigham, 6 Johns. 158.

It is not denied by the defendants, and cannot be, that they are responsible over to the plaintiffs, by operation of law, if the plaintiffs were held answerable to Southwiek by reason of the sole fault of the defendants. Lowell v. Boston & Lowell Railroad, 23 Pick. 24. Lowell v. Short, 4 Cush. 275. Lowell v. Spaulding, 4 Cush. 277.

Had the defendants such notice of the pendency of South-wick’s action, as renders the judgment recovered therein conclusive against them, to any extent ? We are of opinion that they had. They were informed when Southwick’s writ was returnable; that he had sued for an injury received on a day named, by a defect in the highway, called Congress Square, in a place occupied by them; they were directed to take notice that the plaintiffs would hold those responsible who had the charge and custody of the place of the accident; and they were required to govern themselves accordingly. They were not, in terms, requested to take upon themselves the defence of that action. And this was not necessary in order to render the judgment conclusive against them as to the facts thereby established. Blasdale v. Babcock, 1 Johns. 517. Barney v. Dewey, 13 Johns. 226. Warner v. McGary, 4 Verm. 508. Beers v. Pinney, 12 Wend. 309. The defendants, by the notice given to them of Southwick’s action, had an opportunity to defend it, and the case shows that they “ were present at the trial, and testified therein.” This fact, according to Spencer, J. in 13 Johns, ubi sup. is sufficient to show such notice as to render the judgment conclusive against them.

The defect in the highway, for which the plaintiffs were made answerable to Southwick, was an uncovered cellar way, not protected by such a railing as was required by the ordinances of the city ; and this defect existed before the defendants occupied the place of the accident. And they contend that they had no legal right to remedy that defect, and therefore are not responsible for it, because their lease provided that no alterations nor additions should be made by them, without the written consent of their lessors. But we have no doubt that the repairing of a defect is not an alteration nor an addition, within the meaning of the lease. Nor do we suppose that a covenant by the defendants, with their lessors, to continue a nuisance, would exonerate them from liability to third persons, or to the Corn-wealth, for its continuance.

The judgment recovered by Southwick against the plaintiffs is conclusive against these defendants, on three points: That the highway in Congress Square was defective ; that Southwick was injured there, while using due care; and that he suffered damage to the amount of twelve thousand dollars. But it is not conclusive against the defendants on the question whether they were bound to keep the highway safe, or, if they were, that they were guilty of such negligence as would charge them- in this suit, or would have charged them, if Southwick had brought an action against them; nor on the question whether South-wick’s damage was caused by their sole fault.

On a new trial of this action, which must be ordered, the defendants may be permitted to show that they were not bound to make the highway safe, or, if they were, that Southwick’s injury was not caused solely, if at all, by their default. If it was caused by the joint fault of the plaintiffs and defendants, the plaintiffs cannot recover. One of two joint wrongdoers cannot have either indemnity or contribution from the other, although he may have been compelled to pay the whole amount of the damage caused by their joint wrong.

New trial ordered.

Upon a new trial at this.term, a verdict was returned for the defendants, on which judgment was rendered.