Drew v. Farnsworth
| Decision Date | 07 September 1904 |
| Citation | 71 N.E. 783,186 Mass. 365 |
| Parties | DREW v. FARNSWORTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. J. Corbett and M. L. & S. A. Jennings, for plaintiff.
Stebbins Storer & Burbank, for defendant.
The case is here upon exceptions taken at the jury trial, and also upon an exception to the disallowance of the defendant's motion for a new trial. The writ was in tort and the plaintiff was designated in it as 'Catherine Drew, of * * * Boston.' When served it contained no declaration. When the writ was entered a declaration was filed which alleges that 'the plaintiff, a minor, who brings this action by his next friend, says * * * that the defendant was owner of a team driven by the servant of the defendant,' and that the plaintiff was 'crossing the junction of' two streets named, and using due care, and that the defendant, by his servant, so negligently drove the team that the plaintiff was knocked down and run over, and greatly injured. The writ was entered and the declaration filed on February 6, 1899. On the same day a motion was filed to amend the writ by inserting after the words 'Catherine Drew of said Boston' the words 'who brings this action for and as the next friend of James Drew, a minor.' The defendant answered with a general denial on March 2, 1899. The jury trial took place on May 6, 1903.
The defendant's motion for a new trial was filed within three days after the verdict, and was heard on May 16, 1903. In support of that motion he contended that, since there was no evidence of any damage except suffering on the part of the minor, the plaintiff could not recover; the plaintiff named in the writ being Catherine Drew. No mention of any such question was raised at the trial, and the pleadings including the amendment, were read in the opening as though the amendment had been allowed, and the motion for amendment was not called to the attention of the judge by the defendant's counsel until the time set for hearing his motion for a new trial. The judge thereupon allowed the amendment as of May 6, 1903, and disallowed the motion for a new trial. The power to allow amendments at any time before final judgment is ample. Rev. Laws, c. 173,§ 48. It well may be exercised when some error has been made in a writ bringing a suit for a minor. See Smith v. Carney, 127 Mass. 179, 181, and cases cited. So, when there is no good reason for a new trial, the power may be exercised after verdict, and judgment ordered in accordance with the verdict. Pierce v. Charter Oak Life Ins. Co., 138 Mass. 151, 164; Wright v. Vermont Life Ins. Co., 164 Mass. 302, 305, 41 N.E. 303.
The exceptions taken at the jury trial were to the refusal to give certain rulings. The case was submitted to us on briefs without oral argument. The defendant's brief makes three contentions: (1) That the evidence failed to justify a finding of negligence on his part; (2) that the evidence showed negligence on the part of the minor; and (3) that there was a variance, the allegation of the declaration being that the minor was 'crossing the junction of' certain streets, while the evidence showed that he was standing on the sidewalk. The evidence consisted of the testimony of the minor, and of a foot traveler on one of the streets, and of a written statement that the defendant's servant, if present, would give certain testimony. The two streets which met were named Short and Medford. The...
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