Kaufman v. Worcester Federal Savings & Loan Ass'n

36 Mass. App. Dec. 193

• Court: Massachusetts District Court, Appellate Division
• Decided: December 28, 1966
• Docket: No. 179644
• Status: Published

Opinion

Garvey, P. J.

The plaintiff and the defendant (the bank) owned adjoining buildings in Springfield. The bank, by written contract, engaged American Crane Service, Inc. to demolish its building. The plaintiff alleges in her first count that the bank, its agents or servants, in the demolishing were negligent, and in the second count, that it breached a “party wall” agreement. After a trial there was a finding for the plaintiff on both counts and damages assessed in the amount of $3550.00. The bank claimed a report.

We were advised at oral argument by counsel for the parties, (confirmed by inspection of the records) that in a companion action by the plaintiff against the American Crane Service, Inc., alleging negligence, tried with the case under consideration, there was a finding for the plaintiff and damages assessed in the same amount as that assessed against the bank and that the execution issued on the judgment entered on this finding has been satisfied in full. Our case, therefore, seems to us moot.

“The principal and his. agent are liable in separate actions to a third person for the agent’s negligent acts committed within the scope of his authority, both of which actions may be pursued until one satisfaction is obtained”. Karcher v. Burbank, 303 Mass. 303, 305. (Emphasis supplied).

The report is to be dismissed and an order entered in the District Court of Springfield dismissing the action against the Worcester Federal Savings and Loan Association.

Robinson and Dibble of Springfield for the plaintiff Moriarty, Donoghue and Leja of Springfield for the defendant