Doran v. Cohen
| Decision Date | 27 June 1888 |
| Citation | 147 Mass. 342,17 N.E. 647 |
| Parties | DORAN v. COHEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John H. Ponce, for plaintiff.
OPINIONThe statute relied on by the defendant (Pub.St. c. 167, § 85) has not been interpreted as relieving a surety, who has received no notice of an amendment, in every case. Tucker v White, 5 Allen, 323. See, also, Wood v. Denny, 7 Gray, 540; Haven v. Snow, 14 Pick. 33, 34; Miller v. Clark, 8 Pick. 412. The amendment in the present case did not introduce a new cause of action. "Attorney's testimony was, therefore, rightfully admitted." Freeman v. Creech, 112 Mass. 180 and Ball v. Claflin, 5 Pick. 303, are to the same effect. Cutter v. Richardson, 125 Mass. 72; Smith v. Palmer, 6 Cush. 513. Damages for injuries to person and property may be covered in the same action. Johnson v. Holyoke, 105 Mass. 80.
R.J McKelleget, for defendant.
The count added to the declaration after the same was filed in court and after the bond was given introduced a claim for damage to the plaintiff's person in addition to the one for damage to his property. This undoubtedly increased the liability by letting in a new and distinct demand, and, as the surety had no notice of the amendment, the effect was to discharge him. Pub.St. c. 167, § 85; Willis v. Crooker, 1 Pick. 203; Freeman v. Creech, 112 Mass. 180; Kellogg v. Kimball, 142 Mass. 124, 7 N.E. 728. The surety must have understood that he made himself responsible in no possible event for more than the amount recoverable under the original declaration. Prince v. Clark, 127 Mass. 599-601. Amendments in form merely will not dissolve an attachment or discharge bail. To have this effect, the amendment must be such as to let in some new demand or new cause of action. Smith v. Palmer, 6 Cush. 513; Wood v. Denny, 7 Gray, 540; Haven v. Snow, 14 Pick. 33, 34; Wight v. Hale, 2 Cush. 493; Haynes v. Morgan, 3 Mass. 210. No amount of testimony would prove that a count for an injury to a sail-boat and a count for personal injury are for the same cause of action, even if both were caused by the same collision. Miller v. Clark, 8 Pick. 412; Cutter v. Richardson, 125 Mass. 72; Wood v. Denny, 7 Gray, 540.
The sureties upon a bond to dissolve an attachment are not discharged by an amendment of the declaration, unless its effect is to let in a new cause of action, and thus to impose upon them a liability greater than that which they assumed by signing the bond. The original declaration may be imperfect and insufficient, but any amendment to cure such defect will not discharge a surety or release bail, unless it introduces a new cause of action. The obligation of the surety is to pay the plaintiff in the action of the amount he shall recover therein, and the surety cannot take advantage of formal defects in the declaration. Wood v. Denny, 7 Gray, 540; Cain v. Rockwell, 132 Mass. 193; Kellogg v. Kimball, 142 Mass. 124, 7 N.E. 728. In the case before us, the two counts of the declaration are for the same cause of action. The gist of each is that the defendant negligently managed his steam-boat so as to run down the sail-boat of the plaintiff when he was sailing in it, using due care. Each count sets out the same tortious act of the defendant as the cause of action. They differ only in that the original count sets out that the plaintiff's sail-boat was rendered unfit for use, that it was worth $200, and that he was "damaged to that extent, and otherwise;" while the amended count alleges that he was injured in his person. The plaintiff could not legally maintain more than one action for the same tortious act. He could not divide the tort, and have one action for the injury to his property and another for the injury to his person. Bennett v. Hood, 1 Allen, 47; Trask v. Railroad Co., 2 Allen, 331. This is...
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