against him in the case brought by Doctor Burns in New Jersey, but when the Court permitted the notation in the record of the fact that a judgment had been entered against the defendant, Thomas Barger, by the said James R. Burns, which would go to the credibility of Thomas Barger, counsel then offered the record for the purpose of proving that the matter of permission was res judicata. The action in question was a suit by Doctor Burns against Thomas Barger for damages incurred to the former's car while enroute to Philadelphia. The judgment was given by the District Court of Trenton in the sum of $67.50. The doctrine of res judicata means that a cause of action once finally determined without appeal between the parties, on the merits, by a competent tribunal, cannot be litigated by a new proceeding either before the same or any other tribunal. Bluefields S.S. Co. v. United Fruit Co., 3 Cir., 243 F. 1, 9. In the New Jersey case the plaintiff here, Joseph Shane, was not a party nor privy, and accordingly he could not be bound by the judgment in a New Jersey Court.
(7) The next assignment of error is the admission by the Trial Judge of testimony by Miss White, who was driving Doctor Burns' car at the time Barger solicited the work on the fender of the car, as to whether she made inquiry of Barger as to his being a mechanic or whether he operated a garage or repair shop. This testimony was pertinent and relevant and was properly admitted.
(8) The next assignment of error is the admission by the Trial Judge over objection of the garnishee wherein Doctor Burns was asked whether he inquired or ascertained from any other source than Thomas Barger whether he, Barger, was a mechanic or engaged in the repair business or operation of a car. This question was likewise pertinent and relevant to the issue and was properly admitted.
(9) The next assignment of error concerns itself with the Court's instruction to the jury wherein the Trial Judge stated that the defendant, Barger, said that Doctor Burns told him to fix the fender and in another place in the testimony he said he had no instructions given to him, whether to repair or to replace the fender. This instruction is substantially, if not exactly, in accord with the record.
(10) The seventeenth assignment of error concerns itself also with the charge of the Trial Judge to the jury wherein the Court said: "If, however, the transaction of going to Philadelphia was so closely related both as to the time when the instructions were given to Barger and also as to the general end to be accomplished that it could be said to be, in reality, one transaction, within the color of the authority granted, and was not a deviation therefrom, your verdict should be for the plaintiff on this issue of permission". This portion of the Court's charge with respect to the issue of permission read in connection with the whole context was proper in order for the jury to determine whether there was a deviation from the authority granted.
(11) The eighteenth assignment of error concerns itself with the Trial Judge's charge to the jury that from the facts and all the testimony and any fair implication that could be raised therefrom they should determine whether or not Barger had permission to operate the car, was proper in connection with the balance of the Court's charge.
(12) The nineteenth, twentieth and twenty-first assignments of error by the garnishee are all denied, the nineteenth assignment being merely a direction by the Court to the section of the policy which excludes agents or employes operating automobile repair shops, etc.; the twentieth assignment having to do with the Court's charge with respect to whether or not the defendant, Thomas Barger, was excluded under the terms of the policy, that is, whether he was engaged in the business of operating an automobile repair shop, public garage, sales agency, etc. With respect thereto the Court fairly put the factual question to the jury giving as its opinion, if this fixing was one occasional operation for the year, then the defendant Barger, was not engaged in operating an automobile repair shop, public garage, etc. This instruction was fair and proper under all the circumstances. The twenty-first assignment of error, also relating to the charge of the Court, was likewise fair and proper under the circumstances.
Accordingly, garnishee's motion for a new trial is denied.
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