Consolidated Hand-method Lasting-mach. Co. v. Bradley

• Decision Date: 19 May 1898
• Citation: 50 N.E. 464,171 Mass. 127
• Parties: CONSOLIDATED HAND-METHOD LASTING-MACH. CO. v. BRADLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 127

50 N.E. 464

CONSOLIDATED HAND-METHOD LASTING-MACH. CO. v. BRADLEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1898

COUNSEL

Strout & Coolidge and G.S. Selfridge, for plaintiff.

C.C Barton, A.M. Lyman, and C.C. Barton, Jr., for defendants.

OPINION

FIELD C.J.

The next of kin of John M. Tierney, an employé of the plaintiff brought suit against the present plaintiff, under St.1887, c 270, in which they alleged, in the first count, that John M. Tierney was instantly killed from injuries received by reason of a defect in the ways, works, and machinery of the present plaintiff, which had not been discovered or remedied, owing to the negligence of a person in the employ of the plaintiff, and intrusted with the duty of seeing that the ways, works, and machinery were in proper condition. In the second count they alleged that said John M. Tierney sustained bodily injuries, from which he died without conscious suffering, by reason of the negligence of a person in the service of the present plaintiff, intrusted with and exercising superintendence, whose sole and principal duty was that of superintendence. The specific cause of the injury which resulted in the death of John M. Tierney is alleged in the first count, and that is the defective condition of an electric lamp and an electric current charged with electricity. The next of kin amended their declaration by adding a third count, which, so far as material to the present suit, did not differ from the first count. The present plaintiff, the defendant in that suit, answered by a general denial; and on the trial the jury found for the plaintiffs, and assessed damages in the sum of $3,000. The defendant in that suit filed exceptions, and a motion for a new trial. A new trial was ordered unless, the exceptions being waived, the plaintiffs would remit $1,500 from the amount of the verdict. The plaintiffs remitted this sum, and judgment was entered for $1,500 damages, and the costs of suit, which the defendant in that suit paid. The present suit was brought by the defendant in that suit against the present defendants to recover the amount of that judgment, and the costs and counsel fees incurred in the defense of that suit. Before the trial of the original suit the present plaintiff gave the defendants the following notice: "Boston, Mass., May 31, 1893. Messrs. Bradley & Woodruff, 234 Congress St., Boston, Mass.--Dear Sir: The suit of Tierney v. Consolidated Hand-Method Lasting-Machine Company for the death of John Tierney, January 1, 1891, when he was killed, the result of touching or holding the electric light apparatus in the room occupied by the machine company, where the electricity was furnished by you, will come on for trial on Monday next in the second session of the superior court. We hope and expect to be able to win the case, and thus relieve the parties from liability. In case, however, we should be beaten, we shall look to you to recompense the machine company; and we shall expect you to assist in the conduct of the defense of the case. Yours, truly, Strout & Coolidge, Attorneys for C.H.M.L. Machine Co."

The exceptions in the present case recite as follows: "The defendants were not consulted as to the manner in which the defense should be conducted, although they were present at the trial." It appears, also, that the exceptions in the original suit were waived without the knowledge or consent of the present defendants. The substantial ground of the liability of the present defendants is alleged in the declaration in the present suit, as amended, to be as follows: "Second count, same cause of action: And the plaintiff says that on the 10th day of January, 1891, it was engaged in the business of manufacturing and selling machinery used for making shoes, in the sixth story of the building No. 234 Congress street, in the city of Boston occupied by it as lessee of the said defendants; that prior to said 10th day of January, 1891, the plaintiff entered into a contract with the said defendants, by which the said defendants agreed to furnish, by proper and suitable appliances, electricity for the purpose of lighting the premises so occupied by said plaintiff, and to keep all fixtures, wires, converters, and other appliances used in furnishing electric lighting in repair, so that the same would be safe to use; and said defendants were then and there bound to furnish electricity for lighting purposes with safe, proper, and suitable machinery, fixtures, and other contrivances therefor, and that the same should be kept in proper condition and repair, and that a suitable amount of electricity should be furnished to afford said lighting safely and properly, without peril to employés of said plaintiff arising from any defective condition or careless management thereof. And the plaintiff further says that the said defendants furnished said currents of said electricity for said lighting from a dynamo under their sole control, and also on said 10th day of January, 1891, from what was known as the 'city current of electricity,' furnished by the Boston Electric Light Company; and it was in the power and control of the defendants to turn on or shut off said electric current at their pleasure, and said dynamo and appliances for furnishing said current were not in possession of, nor under the control of, the plaintiff. And the plaintiff further says that on said 10th day of January it had in its employ one John Tierney, who was engaged in running a lathe that was lighted by said defendants. That prior to and on said 10th day of January, 1891, the means and appliances used by the said defendants for furnishing said electricity for lighting purposes had become defective and unsafe, and the same were not safe to be used with the city current aforesaid, furnished by said Boston Electric Light Company; and especially the converter used in furnishing said current was out of repair and unsafe, and the wires and other appliances connected with said lighting were out of repair and dangerous, and were not properly insulated. The plaintiff says that on said 10th day of January, and at divers times before said date, it notified the said defendants of said unsafe condition, and that thereupon, on said 10th day of January, the said defendants undertook and agreed to shut off said current of electricity from said circuit, and to keep the same shut off, with the exception of half an hour before noon and five minutes before six at night; and thereupon the said plaintiff, believing that said defendants would shut off said current, informed said Tierney that the same would be shut off, and would remain shut off, as aforesaid. And the said plaintiff says that said information was untrue, and tended to mislead and did mislead the plaintiff into giving the information to said Tierney, and that thereupon said Tierney, by reason thereof, and the defective condition of said appliances for lighting, taking hold of the socket of the lamp which supplied his lathe, received the entire current, which had not been shut off by said defendants, as they had led the plaintiff to believe; and thereupon said Tierney received injuries from which he shortly after died." All the counts of the declaration in the present suit allege notice to the present defendants to come in and defend the original suit, and that they neglected to do so, whereupon the present plaintiff defended it. The jury in the present suit rendered a verdict for the plaintiff, and assessed damages to the amount of the judgment in the original suit, and of the amount expended for costs and for counsel fees therein, with interest. In the trial of the present suit the defendants made 22 requests for instructions, which, with the exception of the fifth and sixth requests, were not given, except as appears in the charge of the presiding justice. The eighteenth and nineteenth requests were as follows: "(18) The notice dated May 31, 1893, was given too late, and was insufficient in form and substance, to bind these defendants. These defendants are not bound by the amount of the judgment recovered against the plaintiff by Tierney." Many of the other requests proceed on the ground that the plaintiffs in the original suit, being the next of kin of John M. Tierney, had no cause of action against the present defendants, and that they recovered judgment against the present plaintiff on the ground of the negligence of the plaintiff, or of some persons in its service intrusted with the duty of seeing that its ways, works, and machinery were in proper condition, or intrusted with and exercising superintendence, and that there can be no contribution between wrongdoers. In the original suit the damages to be recovered, by the terms of the statute, were to be "not less than five hundred and not more than five thousand dollars, to...