29 N.E.2d 555 (Mass. 1940)
Two automobiles, one owned by the plaintiff Cambria and operated by his servant, the other owned and operated by the defendant Jeffery, had a collision.
Jeffery brought in a District Court an action of tort for alleged negligence against Cambria to recover for bodily injury and damage to Jeffery’s automobile. The judge found that the collision was caused by negligence of both operators, and therefore judgment was rendered in favor of the then defendant Cambria.
Afterwards the present action of tort, for alleged negligence of Jeffery causing damage to Cambria’s automobile, was tried. The jury returned a verdict in favor of the plaintiff Cambria for $838.35; but the judge under leave reserved (G. L. [Ter. Ed.] c. 231, § 120) entered a verdict for the defendant Jeffery on the ground that the earlier judgment had adjudicated that the present plaintiff Cambria through his servant was guilty of contributory negligence, and reported the case.
A fact merely found in a case becomes adjudicated only when it is shown to have been a basis of the relief, denial of relief, or other ultimate right established by the judgment. Olsen v. Olsen, 294 Mass. 507, 509, 510. Tighe v. Skillings, 297 Mass. 504, 508. Whittemore v. Selectmen of Falmouth, 304 Mass. 72, 74. North Carolina Railroad v. Story, 268 U. S. 288, 294. Freeman, Judgments (5th ed. 1925) §§ 697, 698. Compare on the facts Long v. MacDougall, 273 Mass. 386, Browne v. Moran, 300 Mass. 107, Gilley v. Jarvis, 94 Vt. 135, and Winters v. Bisaillon, 153 Ore. 509, 104 Am. L. R. 968.
The earlier judgment was in effect that Jeffery could not recover against Cambria. The sole basis for that judgment was the finding that Jeffery was guilty of contributory negligence. The further finding that Cambria’s servant was negligent had no effect, and could have none, in producing that judgment. Therefore that judgment did not adjudicate that Cambria’s servant was negligent.
Verdict under leave reserved set aside.
Judgment upon the verdict returned by the jury.