Wescott v. Young

Decision Date07 March 1931
Citation175 N.E. 153,275 Mass. 82
PartiesWESCOTT v. YOUNG. SAME v. HENSHAW MOTOR CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; O'Connell, Judge.

Separate actions by C. W. Wescott, administrator, who was substituted as plaintiff after the death of Dora D. Philbrick, the original plaintiff, against Harold S. Young, and against the Henshaw Motor Company. After a verdict for plaintiff on two counts in the first case, and a directed verdict for defendant in the second case, plaintiff and defendant in the first case bring exceptions.

Plaintiff's exceptions overruled, and the exceptions of defendant in the first case sustained, and verdict to be entered in his favor on the second count.Samuel P. Sears, of Boston, for plaintiff.

M. J. Mulkern and E. F. Cameron, both of Boston, for defendant Henshaw Motor Co.

C. F. Albert, of Boston, for defendant Young.

CARROLL, J.

These two bills of exceptions, one by the plaintiff and one by the defendant Young, are to rulings in actions of tort for the death of the plaintiff's testatrix and for her conscious suffering. In Wescott v. Young there was a verdict for the plaintiff. In Wescott v. Henshaw Motor Company a verdict for the defendant was directed by the court.

1. In the case against Young it appeared that the plaintiff's testatrix was struck by the motor vehicle operated by Young, in Reading, on April 13, 1927. The testatrix died April 23, 1927. She was a resident of Maine. Her will was allowed in that State on July 12, 1927. On September 16, 1927, her will was allowed in the Probate Court of Middlesex County and ancillary letters were issued to Dora D. Philbrick, who brought an action in July 1928, but died before the case came on for trial; Clement W. Wescott, the administrator appointed, was substituted as plaintiff.

In April, 1927, the defendant Young was a resident of this Commonwealth. In May of that year he went to Maine and later to Providence, Rhode Island, where he established a permanent residence in October, 1927. Since May, 1927, he has not resided in this Commonwealth. There was evidence of negligence by Young and of due care on the part of the plaintiff's testatrix. Young was called as a witness by the plaintiff, who cross-examined him. In the course of the cross-examination a record of his conviction on June 20, 1927, for operating an automobile negligently, was offered by the plaintiff, solely for the purpose of affecting the credibility of the witness. The defendant excepted to its admission.

The defendant moved for a directed verdict. The first count was for conscious suffering and on this count there was a verdict for the plaintiff for $1. The second count was for the death of the testatrix. The jury found for the plaintiff on this count in the sum of $5,000. The judge, after instructing the jury that the cause of action for the death accrued on the date of the death of the testatrix, gave the further instruction that, if they found the defendant resided out of the Commonwealth for any period after the cause of action accrued, they should deduct the period during which he so resided out of the Commonwealth in determining whether one year had elapsed between the date on which the cause of action accrued and the date on which the action was commenced. The defendant excepted to this part of the charge.

The plaintiff's testatrix died on April 23, 1927. The cause of action for her death accrued at this time. Bickford v. Furber (Mass.) 170 N. E. 796, 70 A. L. R. 469. The action was commenced on the date of the writ. Gardner v. Webber, 17 Pick. 407, 412; Bickford v. Furber, supra. This date was more than one year after the cause of action accrued. Under G. L. c. 229, § 5, as amended by St. 1922, c. 439, and St. 1925, c. 346, § 9, recovery may be had against one who negligently causes the death of another who is in the exercise of due care, the action to be brought, with exceptions not material here, within two years after the injuries which caused the death. By St. 1925, c. 346, § 10, and St. 1921, c. 319, § 1, G. L. c. 260, § 4, was amended. St. 1925, c. 346, § 10, provides that ‘* * * actions of tort for bodily injuries or for death the payment of judgments in which is required to be secured by chapter ninety * * * shall be commenced only within one year next after the cause of action accrues.’ G. L. c. 90 is the motor vehicle and aircraft statute. It is not disputed by the plaintiff that the cause of action for the death of his testatrix in this action against Young is governed by G. L. c. 260, § 4, as amended by St. 1921, c. 319, § 1 and St. 1925, c. 346, § 10.

An action for wrongfully causing the death of another is not a common law action; it is purely a statutory right. Where such a right is given subject to certain conditions, failure to comply with the conditions is fatal to the existence of the right. Castaline v. Swardlick, 264 Mass. 481, and cases cited at page 483, 163 N. E. 62. Bickford v. Furber, supra. A statute which requires an action to be brought within a specified time makes that time of the essence of the right; when the time is passed, not merely the remedy is barred, but the right is gone.

The plaintiff contends that St. 1925, c. 346, § 10, is controlled by G. L. c. 260, § 9, this section providing in effect that residence out of the State is to be excluded in determining the time to bring an action. We cannot agree with this contention. The exclusive remedy given for death, the payment of judgments in which is required to be secured by G. L. c. 90, is that given by the statute. The right is conditioned by its terms and limited to the time stated in the statute. A similar question arose in Bickford v. Furber, supra. It was there decided that the limitation imposed by G. L. c. 229, § 5, as amended, is a limitation of the right as well as of the remedy. In that case it was said at page 798 of 170 N. E.: ‘It is not to be supposed that the Legislature, in connection with requiring security for the payment of judgments for deaths caused by motor vehicles by St. 1925, c. 346, intended to make the time within which such actions must be brought less definite than in the case of actions for deaths generally.’ It follows from this that G. L. c. 260, § 9, is not applicable to this action for death. The motion for a directed verdict on the second count should have been allowed. The exceptions are to be sustained on this count and judgment ordered for the defendant on the second count.

As to service on an absent defendant who causes injury to another while operating a motor vehicle on a public highway in this Commonwealth, see St. 1928, c. 344; Pawloski v. Hess, 250 Mass. 22, 144 N. E. 760, 35 A. L. R. 945;Id., 253 Mass. 478, 149 N. E. 122.

The defendant excepted to the refusal of his motion to direct a verdict on the first count for conscious suffering. As we interpret the defendant's brief to mean that no argument is addressed to us asking that this exception be sustained we treat it as waived. As the plaintiff cannot recover on the second...

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