Daley v. Boston & A.R. Co.
| Decision Date | 07 May 1888 |
| Citation | 16 N.E. 690,147 Mass. 101 |
| Parties | DALEY v. BOSTON & A.R. Co., (two cases.) |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Samuel Hoar, for defendant.
It is well settled that, in declaring on a cause of action arising under a statute, the plaintiff must state specially every fact required by the statute to fix the liability. Wright v. Railroad, 129 Mass. 440, 444. As the original declaration does not state that the intestate left a widow or children or next of kin, or that the action is brought for their benefit, it does not set out a cause of action, under the statute, for loss of life. Pub.St. c. 112,§ 212; St.1883 c. 243; Com. v. Railroad Co., 5 Gray, 473; Com v. Railroad Co., 121 Mass. 36. It does not set forth a good cause of action at common law for the suffering, and the first prayer for ruling ought to have been granted. C. ALLEN, J., in Silver v. Jordan, 139 Mass. 280, 1 N.E. 280. In other words it is not a matter of discretion with the court, but of positive right in the defendant, that the plaintiff shall not be allowed to amend so as to sustain his action for a cause other than that for which he originally intended to bring it. Therefore the second request for ruling ought to have been given. Although there was evidence tending to show that the plaintiff intended to bring his action for both causes, this is not proof of such intention, and does not justify the court in allowing the amendment. The court must find as a fact such an intention to have existed before the amendment can be allowed; and the defendant, having taken the proper steps to protect its rights by submitting requests for rulings, has a right to know on what facts the amendments are allowed. By refusing to pass on defendant's prayers, for rulings, "except so far as is involved in allowing said amendments," the court has deprived the defendant of his rights under the statute; for, so far as appears, the court may have found that he did not intend originally to bring his action under the statute. It is submitted, further, that if the defendant intended to bring his action for two distinct causes which cannot be joined in the same action, and his declaration sets forth one of the causes of action, but does not set forth the other, he cannot be allowed to amend so as to add the other cause, and finally recover on that other cause. Therefore the third prayer for ruling ought to have been granted. If the evidence shall be held to have any tendency to prove that the defendant corporation dealt with these men through Thornton & Beal, it is submitted that the relation is that of contractor and contractee, and not of master and servant. "The business of stevedore is a separate, distinct, well-recognized business in Boston.'' It is submitted that Gallagher's business was that of stevedore; that he was "exercising a distinct business, under an entire contract, for a gross sum, and that the relation was that of contractor and contractee." Linton v. Smith, 8 Gray, 147; Forsyth v. Hooper, 11 Allen, 419; Murray v. Currie, L.R. 6 C.P. 24. The plaintiff must show, not only that the injury was the result of the negligence of the defendant corporation, but that it was the result "of the negligence or carelessness of a corporation operating a railroad." Pub.St. c. 112, § 212. The business of unloading vessels is a distinct business in itself. It is the business of stevedores, and not of railroad corporations. Cases cited above. Therefore the negligence complained of was not that of a corporation operating a railroad. Claxton v. Railroad Co., 13 Bush. 636. It is a well-settled principle that the master does not warrant the safety of the appliances and instrumentality to his servants. Ford v. Railroad Co., 110 Mass. 240; Holden v. Railroad Co., 129 Mass. 268; Rogers v. Manufacturing Co., 144 Mass. 198, 11 N.E. 77. See Rice v. King Philip Mills, 144 Mass. 229, 236, 11 N.E. 101; McGee v. Cordage Co., 139 Mass. 445, 448, 1 N.E. 745; Johnson v. Boat Co., 135 Mass. 209. It is submitted that, from the evidence in this case, it is clear that the defendant company had performed its whole duty to the intestate; had supplied suitable materials, and employed competent men, to make the repair necessary; and that the first request for instructions ought to have been granted. King v. Railroad Corp., 9 Cush. 112; Zeigler v. Day, 123 Mass. 152; Smith v. Manufacturing Co., 124 Mass. 114; McDermott v. City of Boston, 133 Mass. 349; Johnson v. Boat Co., 135 Mass. 209; McGee v. Cordage Co., 139 Mass. 445, 1 N.E. 745; Rice v. King Philip Mills, 144 Mass. 229, 11 N.E. 101; Loughlin v. State, 105 N.Y. 159, 11 N.E. 371. The fifth request for instructions ought to have been given as requested. The instructions given on this point are erroneous.
Richardson & Hale, for plaintiff.
No exception was taken to the finding of the court. Such allowing of amendment is not the subject of exception. Pub.St. c. 167, § 42; Hutchinson v. Tucker, 124 Mass. 240. We do not understand that the court is called upon to decide upon the effect or sufficiency of an amendment proposed or made in this way. The proper way was to demur to it. Clay v. Brigham, 8 Gray, 161; Gooodsell v. Trumbull, 135 Mass. 99. So, also, as to the fourth request. The court was not bound to pass upon the effect or sufficiency of the proposed amendment at that time. The only matter then before the court was the allowing the amendment to be filed. To the exercise of the discretion of the court, the defendant had no ground or right of exception. George v. Reed, 101 Mass. 378. The material question was whether these shovelers,--whether the deceased was, at the time of the breaking of the rope, in the employment of the defendant. The jury found that he was. No other request for any ruling on this point was made, and no exception saved to whatever other ruling or instruction was made or given. As to the point that "this work of unloading coal from this schooner was not a railroad operation." It is difficult to see why it was not. This was coal which the defendants were going to carry as freight on their cars to Brookline. It was as easy to take this coal from the vessel's hold, and put it into their cars, as to take it from the wharf, and probably more convenient; and why it was not a legitimate operation or business for this railroad corporation, whether for compensation, profit, or for their own convenience, we do not see. It was in the line of its business,--"incidental and auxiliary" to it. Brown v. Winnisimmet Co., 11 Allen, 326; Glass Co. v. Glass Co., 111 Mass. 315; 1 Mor.Priv.Corp. §§ 191-194; Manufacturing Co. v. Railroad Corp., 104 Mass. 122; Feital v. Railroad Co., 109 Mass. 398; Railroad Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590. The case at bar is the case of the failure of an employer or master to furnish and maintain safe and suitable machinery, appliances, or apparatus for the performance of the work in which the servant is engaged or employed, and rests on the law stated in such cases as Ford v. Railroad Co., 110 Mass. 240; Warden v. Railroad Co., 137 Mass. 204; Rogers v. Manufacturing Co., 144 Mass. 198, 11 N.E. 77; Railroad Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590; Rice v. King Philip Mills, 144 Mass. 229, 11 N.E. 101; Hackett v. Manufacturing Co., 101 Mass. 101. In circumstances it is very similar to Steam-Ship Co. v. Carey, 119 U.S. 245, 7 S.Ct. 1360. It never has been held that knowledge or notice of a defect in machinery by a fellow-servant would affect the right of others. Railroad Co. v. Hagar, 11 Bradw. 500. It is immaterial whether the deceased and Gallagher were or not "fellow-servants." Elmer v. Locke, 135 Mass. 576; Railroad Co. v. Hagar, 11 Bradw. 500; Warden v. Railroad Co., supra, 206. If it should be said that the court left it to the jury to determine what, in any respect, the duty of Gallagher or the defendant or any other person was, the obvious reply is that the facts out of which their respective duties arose, and on which they depend, were in dispute; and in such case no other course can be pursued except to leave to the jury to find what their relations and consequent duties were. Ford v. Railroad Co., 110 Mass. 240; Clark v. Soule, 137 Mass. 380.
OPINION
The first bill of exceptions applies only to the first case, in which, at the trial, the plaintiff elected to strike out the second count of his amended declaration. As the cases were tried, the first action was to recover damages for the loss of life of Thomas Daley, the plaintiff's intestate, by his administrator, for the use of his children; Daley leaving no widow. The second was to recover damages for the suffering of Daley previous to his decease. There was a motion in the superior court, made at a term previous to the trial, by the plaintiff, to amend the original declaration filed by him with the writ, by filing two distinct counts, embracing the two causes of action above stated; and by the bill of exceptions it appears that "there was evidence tending to show that the plaintiff intended, when he brought his action, to set forth and rely upon a cause of action at common law for injuries and sufferings of his intestate, and also a cause of action under the statute for the death of his intestate." This evidence is fortified by an examination of the declaration itself, which must be construed as intending to include in one count two distinct causes of action, however imperfectly they or one of them may be stated....
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