Gallagher v. Wheeler

• Decision Date: 07 December 1935
• Citation: 292 Mass. 547,198 N.E. 891
• Parties: GALLAGHER v. WHEELER. JACOBS v. SAME. STANLEY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 547

198 N.E. 891

GALLAGHER v. WHEELER.

JACOBS v. SAME.

STANLEY v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

December 7, 1935

Exceptions from Superior Court, Middlesex County; Qua, Judge.

Three actions of tort by Joseph Gallagher, and by Dorothy Jacobs p. p. a., and by Mabel Stanley against Rupert S. Wheeler which were tried together in the superior court. Verdicts for plaintiffs in the sums, respectively, of $38, $1,800, and $29. On defendant's exceptions.

Exceptions overruled.

M. Michelson, of Boston, for plaintiffs.

J. P. Sullivan, of Boston, for defendant.

RUGG Chief Justice.

These are three actions of tort brought by the several plaintiffs against the defendant to recover for personal injuries received by them as the result of an accident.

There was evidence tending to show that the accident occurred about 3 o'clock on a pleasant Sunday afternoon, August 13, 1933; that the plaintiffs were guests of the defendant in his automobile riding in the town of Wareham; that the defendant had been driving at a high rate of speed and had been asked by some or all of the plaintiffs to drive more slowly; that one of the plaintiffs on the back seat began to cry because of the high speed at which the defendant was driving; that thereupon the defendant turned around and said, ‘ Don't cry, you are nothing but a big baby,’ when his companion on the front seat said to him, ‘ look out, the cars are all stopped in front’ ; that the defendant, then travelling well over fifty miles an hour, put on his brakes but was too close to the automobile in front, so he cut out to the left and said, ‘ I can't make it’ ; that he struck the left rear of the automobile in front and hit head-on an automobile coming in the opposite direction; that the automobile of the defendant and the one coming in the opposite direction with which there was collision were badly damaged; that the traffic in both directions was heavy; that there was a curve in the road about two hundred or two hundred and fifty feet away from the place of the accident in the direction the defendant was travelling; and that there was a line of perhaps thirty automobiles stopped ahead of the automobile of the defendant at the time of collision. The speed of the automobile of the defendant was between thirty and thirty-five miles an hour when he hit the automobile in front and about thirty miles an hour at the time of the headon collision. Each of the plaintiffs received injuries as a result of the collision.

The collision occurred on August 13, 1933. The actions were brought on October 25, 1933. The declarations as originally filed contained a single count alleging injuries to each plaintiff while riding as a guest of the defendant in his automobile caused by his gross negligence. On March 21, 1934, a motion was filed by each plaintiff to amend the declaration by adding a second count. The amendment was the same in substance in each case and alleged that on August 13, 1933, serious injuries were received by the plaintiff due to the violation by the defendant of G.L. (Ter.Ed.) c. 89, §§ 1 and 4. The amendments were framed on section 5 of the same chapter. Its provisions so far as here material are that ‘ whoever violates any of the provisions of the four preceding sections shall * * * be liable in an action commenced within twelve months after the date of such violation for all damage caused thereby.’ By section 1 of the same chapter, when persons travelling with vehicles meet on a way, each shall drive his vehicle to the right of the middle of the travelled part of such way, so that the vehicles may pass without interference; and by section 4, ‘ whenever on any way, public or private, there is not an unobstructed view of the road for at least one hundred yards, the driver of every vehicle shall keep his vehicle on the right of the middle of the traveled part of the way, whenever it is safe and practicable so to do.’

When the cases came on the trial on October 19, 1934, and before any evidence was offered, the motions to amend the declarations were allowed. No exception was taken to the allowance of these motions. The defendant filed a demurrer in each case to the second count thus allowed by the amendment. Each demurrer was overruled subject to exception by the defendant. In each case a verdict was returned in favor of the defendant on the count for gross negligence and in favor of the plaintiff on the count framed on G.L. (Ter.Ed.) c. 89, § 5.

The motions to amend the declarations were proper in form. They were appropriately framed to set out a cause of action under G.L. (Ter.Ed.) c. 89, § 5. The demurrers do not set out a valid ground, since they are general in nature and are in effect that no cause of action is alleged with substantial certainty.

The demurrers do not mention the statute of limitations. The statute of limitations is not ground for demurrer in an action at law. It must be set up in the answer. Miller v. Aldrich, 202 Mass. 109, 113, 88 N.E. 441, 132 Am.St.Rep. 480; Hodgdon v. City of Haverhill, 193 Mass. 327, 330, 79 N.E. 818; Coffey v. Rady, 267 Mass. 301, 305, 166 N.E. 833; Aisenberg v. Royal Ins. Co., Ltd., 266 Mass. 543, 546, 165 N.E. 682. The rule in equity is different, where demurrer lies on this ground. Fogg v. Price, 145 Mass. 513, 516, 14 N.E. 741; Quinn v. Quinn, 260 Mass. 494, 497, 157 N.E. 641. The proper course of procedure for the defendant would have been to except to the allowance of the amendments. However, the question argued by the defendant is treated as open under his demurrers; and it is assumed in his favor but without so deciding that the date of the allowance and not of the filing of the motion to amend is decisive in this connection. See Kaufman v. Buckley, 285 Mass. 83, 86, 188 N.E. 607. The defendant contends that the requirement in G.L.(Ter.Ed.) c. 89, § 5, that the action must be commenced within twelve months after the violation of the law of the road, is a condition of the right and not merely a statute of limitations. McRae v. New York, New Haven & Hartford Railroad Co., 199 Mass. 418, 85 N.E. 425, 15 Ann.Cas. 489; Bickford v. Furber, 271 Mass. 94, 97, 170 N.E. 796. This distinction is not regarded as material to the issues here raised.

There was no error in the allowance of the amendments to the declarations. The allowance of such amendments rests in sound judicial discretion, and cannot be set aside unless as matter of law unwarranted on the face of the record or on the facts found. Pizer v. Hunt, 253 Mass. 321, 331, 148 N.E. 801, and cases cited; Shapiro v. McCarthy, 279 Mass. 425, 181 N.E. 842; Batchelder v. Pierce, 170 Mass. 260, 49 N.E. 310; Johnson v. Carroll, 272 Mass. 134, 136, 172 N.E. 85, 69 A.L.R. 1244; Henri Peladeau, Ltd., v. Fred Gillespie Lumber Co., 285 Mass. 10, 14, 188 N.E. 380; Bowen v. Fairfield, 260 Mass. 38, 40, 157 N.E. 39. It is plain that counts for gross negligence at common law and counts based on violation of the statute involving the same conduct might have been joined in a single declaration. Prescott v. Tufts, 4 Mass. 146; Smith v. Proprietors of First Congregational Meetinghouse in Lowell, 8 Pick. 178; Fairfield v. Burt, 11 Pick. 244; Worster v. Proprietors of Canal Bridge, 16 Pick. 541, 549. In both counts each plaintiff is seeking the vindication for the same wrong done to him personally. The cases at bar are different from decisions like Brennan v. Standard Oil Co. of New York, 187 Mass. 376, 73 N.E. 472, where the plaintiff was seeking to establish in one action liabilities accruing to him in different capacities in the absence of an enabling statute. McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 107 N.E. 439. The same injuries to the plaintiffs and the same wrongful conduct of the defendant are involved in both counts in the present declarations.

The only wrong done to the plaintiffs arose out of the wrongful operation by the defendant of his automobile on a public way. The statement of a different form of liability is not a different cause of action, provided it accrues to the plaintiff in a single capacity, and grows out of the same transaction or act and seeks redress for the same wrong. The second count did not set out a new or independent cause of action not in existence at the date of the writ. Smith v. Palmer, 6 Cush. 513, 519; Holmes v. Carraher, 251 Mass. 536, 146 N.E. 900; Mackintosh v. Chambers, 285 Mass. 594, 596, 597, 190 N.E. 38. The remedies open to the plaintiffs at common law and under the statute were alternative and not inconsistent and might be sought in the same action, although no plaintiff can have both remedies against the same defendant for the same injury. Clare v. New York & New England Railroad Co., 172 Mass. 211, 51 N.E. 1083; Johnson v. Carroll, 272 Mass. 134, 136, 172 N.E. 85, 69 A.L.R. 1244.

The allowance of the amendment to the declaration imports a finding that it will enable the plaintiff to maintain the cause of action for which it was intended to be brought. Otherwise the amendment would not be allowed. Driscoll v Holt, 170 Mass. 262, 266, 49 N.E. 309; Regan v. Keyes, 204 Mass. 294, 305, 90 N.E. 847; Herlihy v. Little, 200 Mass. 284, 289, 86 N.E. 294; Upson v. Boston & Maine Railroad, 211 Mass. 446, 98 N.E. 32; Federal National Bank v. O'Keefe, 267 Mass. 75, 77, 165 N.E. 897; Shapiro v. McCarthy, 279 Mass. 425, 428, 181 N.E. 842, and cases cited; Nolan v. New York, New Haven & Hartford Railroad Co., 283 Mass. 156, 185 N.E. 925. The identity of the cause of action in the two counts is thus established. The evidence before the trial judge on which the amendment was allowed is not reported. A finding that the cause of action there set forth would enable the plaintiff to sustain the action for which it was...