Brennan v. Standard Oil Co. of New York

Citation187 Mass. 376,73 N.E. 472
PartiesBRENNAN v. STANDARD OIL CO. OF NEW YORK.
Decision Date27 February 1905
CourtUnited States State Supreme Judicial Court of Massachusetts

187 Mass. 376
73 N.E. 472

BRENNAN
v.
STANDARD OIL CO. OF NEW YORK.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 27, 1905.


Report from Superior Court, Essex County; Edgar J. Sherman, Judge.

Action by Michael J. Brennan against the Standard Oil Company of New York. Judgment for plaintiff, and case reported to Supreme Court. Reversed.


[187 Mass. 377]P. J. McCusker, for plaintiff.

Wm. A. Munroe, for defendant.


KNOWLTON, C. J.

The first count is founded upon the statutory liability for causing the death of the plaintiff's intestate, which the plaintiff seeks to enforce as the representative of the next of kin, for whom he would hold the proceeds. The second count is upon the liability at common law for injuries to the intestate, for which he had a right of action during his life, and the claim is made by the plaintiff as legal representative of the estate of the deceased, for which he would hold the proceeds. In the first the plaintiff acts only as trustee for the next of kin; in the second, only as trustee for those interested in the estate. These claims do not accrue to him in the same capacity, and hence, by the rules of pleading at common law, which in this respect have not been changed by our statutes, they cannot be joined in the same action. Gould, Pl. & Pr. c. 4, § 93, and cases cited; Cincinnati, Hamilton & Dayton Railroad v. Chester, 57 Ind. 297. See, also, Ranney v. St. Johnsbury & Lake Champlain Railroad, 64 Vt. 277, 24 Atl. 1053, where this principle was recognized, but not applied. The verdict therefore cannot stand on both counts. [187 Mass. 378]If it can stand upon only one count, the plaintiff has elected to rely upon the first. This makes it necessary to inquire whether the evidence warranted the verdict upon that count. Since the deceased was a child only four years and eight months old, it was incumbent on the plaintiff to show that there was no contributory negligence on the part of the deceased, or of those who had charge of him. Although the question is not free from difficulty, we will assume, in favor of the plaintiff, without deciding, that the evidence would entitle him to go to the jury on this part of the case.

To maintain the action for the death of the plaintiff's intestate, it must be shown that the accident was caused by the gross negligence of the defendant's servant, the driver of the team. The statute upon which the plaintiff relies recognizes or creates a distinction between ordinary negligence and gross negligence. Death...

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