Opinion
February 26, 1945.
The cases were submitted on briefs.
G. Ginsburg, W.E. Ginsburg, S.J. Ginsburg, for the plaintiffs.
J.L. Wiseman, for the defendant.
Order dismissing report affirmed. In this action and in the companion case of Dominic J. Totaro vs. Anthony Scoglio, the plaintiffs assert (1) that they are entitled to recover in contract counts upon judgments obtained by them against the agent or servant of the defendant who was driving the defendant's truck at the time of the collision in which the plaintiffs suffered injury, and (2) that the findings against the agent or servant in the former actions are res judicata against the defendant in tort counts for the negligence of his agent or servant. The plaintiffs cannot prevail upon either contention for reasons which sufficiently appear in Pesce v. Brecher, 302 Mass. 211. The defendant had no opportunity to defend himself in the actions against his agent or servant. The cases are distinguishable from Giedrewicz v. Donovan, 277 Mass. 563, on the ground set forth in Pesce v. Brecher at page 213.