Clare v. New York & N.E.R. Co.

• Decision Date: 23 November 1898
• Citation: 172 Mass. 211,51 N.E. 1083
• Parties: CLARE v. NEW YORK & N.E.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 211

51 N.E. 1083

CLARE v. NEW YORK & N.E.R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

November 23, 1898

COUNSEL

W.A. Gile and Francis M. Morrison, for plaintiff.

F.P Goulding and W.C. Mellish, for defendant.

OPINION

FIELD C.J.

The declaration contains two counts,--the first at common law for personal injuries suffered by the plaintiff's intestate; and the second under Pub.St. c. 112, § 212, for the death of the plaintiff's intestate. The judgment in the former action between the same parties ^[1] was rendered on a declaration under St.1887, c. 270, for personal injuries suffered by the plaintiff's intestate, and not for his death. It is obvious that such a judgment is not a bar to the prosecution of the present action on the second count, as the causes of action are different. The writ in the present action is dated May 17, 1897, and by the exceptions it appears that the plaintiff's intestate died on July 20, 1891, and that he received the injuries which caused his death on July 19, 1891. Pub.St. c. 112, § 212, requires the action under that section to be "commenced within one year from the injury causing the death." This defense that the action was not commenced within said year is set up in the answer of the defendant, and is plainly a good defense to the action on the second count.

St.1887 c. 270, does not take away any cause of action at common law which an employé had against his employer for personal injuries. The employé, or, if he has died after conscious suffering, his administrator, can bring an action for personal injuries, either at common law or under the statute, and, by our practice, he is permitted to join a count or counts at common law with a count or counts under the statute. Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N.E. 766. The declaration in the former action between these parties contained no count at common law, but it was at the option of the plaintiff whether, in that action, he would sue at common law or under the statute, or join counts under both. When such counts are joined, it may be that the trial court, at some stage of the trial, can, in its discretion, compel the plaintiff to elect on which of the two classes of counts he will proceed, although this court has held that an election ought not to be compelled when all the counts are under the statute. Beauregard v. Construction Co., 160 Mass. 201, 35 N.E. 555. Plainly, a plaintiff should not be permitted to retain verdicts both at common law and under the statute for the same personal injuries, and have judgment for the sum of the two verdicts. A verdict under the statute cannot exceed the sum of $4,000, while at common law there is no fixed limit to the amount of the verdict; and the statutory notice must be given in order to maintain an action under the statute, while no notice is required to maintain an action at common law. It may happen that the proof is such that there is no evidence to maintain an action at common law, although there is evidence to maintain an action under the statute; or the converse may be true, or there may be evidence for the plaintiff both at common law and under the statute. Coffee v. Railroad Co., 155 Mass. 21, 28 N.E. 1128; Lynch v. Allyn, 160 Mass. 248, 35 N.E. 550.

The fact, if it be a fact, that the plaintiff, at some time or other in the trial, may be compelled by the trial court to elect whether he will proceed at common law or under the statute, does not prevent the former adjudication from being a bar to another action between the same parties to recover compensation for the same injury. The alleged cause of action at common law could have been tried in the former action if the plaintiff had chosen to join a count at common law with a count or counts under the statute, and, if compelled by the trial court to elect, he had elected to go to the jury on the count at common law. The parties are concluded by the judgment in the former action, not only upon the issues actually tried and determined, but upon all issues which might...