Goulet v. Whitin Mach. Works, Inc.

Decision Date08 April 1987
Citation399 Mass. 547,506 N.E.2d 95
PartiesJohn T. GOULET et al. v. WHITIN MACHINE WORKS, INC., et al. 1
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

James B. Re (Frank W. Kilburn, Boston, with him), for John T. goulet.

Joseph D. Regan, Lowell, for Whitin Machine Works, Inc.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The plaintiff John T. Goulet (hereinafter plaintiff) filed suit on May 21, 1979, against the defendant Whitin Machine Works, Inc. (Whitin), alleging negligent design and construction of a machine which caused the plaintiff injury requiring that his arm be amputated. In 1981, the plaintiff amended his complaint adding Ashworth Bros. Inc. (Ashworth), as a defendant and counts against Whitin for negligent failure to warn, and loss of consortium and society claims on behalf of his wife and children. On December 7, 1983, Ashworth's unopposed motion for leave to file a late cross-claim against Whitin, alleging breach of warranty and negligence, was allowed. On January 24, 1984, a similar unopposed motion of Whitin against Ashworth was allowed. On December 9, 1983, five days prior to the scheduled trial date of December 14, 1983, the plaintiffs filed a motion to amend their complaint by adding breach of warranty claims against both defendants. That motion was heard and, on December 12, 1983, it was denied. On December 14, 1983, the trial was rescheduled for April 16, 1984.

The plaintiffs then sought a reconsideration of their motion to amend the complaint, which was denied on December 27, 1983. The plaintiffs appealed to a single justice of the Appeals Court, who denied their request for relief on the basis that she could not conclude that the judge below had abused his discretion. After reconsideration was denied, the plaintiffs sought relief in this court under G.L. c. 211, § 3, which was also denied. The plaintiffs renewed their motion to amend the complaint before the start of trial, and they moved to amend their complaint to conform to the evidence before they rested. The trial judge "reluctantly" denied the plaintiffs' motion "on the well established jurisdictional principle that there must be an end to litigation." The plaintiffs appealed and we took the case on our own motion.

The plaintiff John T. Goulet claims error in the trial judge's denial of the motion to amend the complaint to conform to the evidence. He alleges that the trial judge mistakenly believed that he had no power to allow the motion because the motion judge had denied earlier requests to amend the complaint. Furthermore, the plaintiff argues, the motion should have been allowed because breach of warranty was implicitly raised by the complaint and proved at trial. The plaintiff also claims that the motion judge abused his discretion in denying his motion to amend the complaint. Whitin filed a cross-appeal claiming that the trial judge erred in allowing the plaintiffs' motion for costs, in denying Whitin's motion for costs, and in calculating damages. We reverse.

1. Motion for leave to amend. Once a responsive pleading has been served, a complaint may be amended "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires...." Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). Although leave to amend is within the discretion of the judge, leave should be granted unless there appears some good reason for denying the motion. Castellucci v. United States Fidelity & Guar. Co., 372 Mass. 288, 289, 361 N.E.2d 1264 (1977). See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (construing identical language in Federal rule). Such reasons include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... futility of amendment, etc." Id. 2 Moreover, when trial is imminent, "a judge may give weight to the public interest in the efficient operation of the trial list and to the interests of other parties who are ready for trial." Id. Castellucci v. United States Fidelity & Guar. Co., supra at 292, 361 N.E.2d 1264. 3 A statement of reasons or finding of fact may be required, however, to demonstrate adequate justification for a judge's action in denying a motion to amend a pleading. Id., 372 Mass. at 291 n. 2, 361 N.E.2d 1264.

When the motion was first filed, just prior to the scheduled trial date of December 14, 1983, the defendant made no showing of prejudice. In fact, Whitin's counsel did not even appear at the hearing. Further, Whitin knew that breach of warranty was an issue. Whitin had mentioned breach of warranty in its answer to the plaintiffs' first amended complaint in May, 1981, and acknowledged it as an issue in its motion for partial summary judgment in November, 1983. Finally, under Massachusetts law, a finding that a defendant in a products liability case is negligent is tantamount to a finding that the defendant breached its warranty of merchantability. Hayes v. Ariens Co., 391 Mass. 407, 410, 462 N.E.2d 273 (1984). In such circumstances, liability for breach of warranty would be established unless the defendant could prove either prejudicial failure of the plaintiff to give timely notice of the defect, or unreasonable use of the product once the plaintiff has knowledge that the product is defective and dangerous. Id. at 410 n. 2, 462 N.E.2d 273. Proof of either defense, of course, would require a verdict for the defendant. Id. Contributory negligence, as was found in the present case, however, would not prevent recovery under a warranty theory, although the plaintiff would be barred by a finding that he "unreasonably use[d] a product that he [knew] to be defective and dangerous." Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 356, 446 N.E.2d 1033 (1983). Allen v. Chance Mfg. Co., 398 Mass. 32, 34, 494 N.E.2d 1324 (1986). Accordingly, while not using the words "breach of warranty," the plaintiffs' complaint implicitly alleged breach of the implied warranty of merchantability in its allegations that the defendant negligently manufactured or designed the machine that it sold to Goulet's employer. 4 Thus, an amendment to add a count based on breach of implied warranty of merchantability would be little more than a mere formality. Because of the liberal policy toward allowing amendments, and because there was no showing of prejudice, we can discern no reason for the judge's not allowing the plaintiffs to amend to add a count for a breach of warranty of merchantability.

When the judge reconsidered the plaintiffs' motion for leave to amend, after the trial date had been continued for four months, the case for allowing the amendment was even more compelling. The judge offered no reasons for his denial of the motion, and there is no compelling reason apparent in the record. Clearly, any prejudice that might have existed when trial was imminent had disappeared once the trial date had been continued. 5 While "undue delay" may justify a denial, this court has usually required some factor other than delay, such as the imminence of trial or the plaintiff's attempting to introduce a totally new theory of liability. See Libby v. Commissioner of Correction, 385 Mass. 421, 428, 432 N.E.2d 486 (1982) (trial imminent); Castellucci v. United States Fidelity & Guar. Co., supra, 372 Mass. at 290-292, 361 N.E.2d 1264 (trial imminent and attempt to substitute "markedly" new theory). See also Genesco, Inc. v. Koufman, 11 Mass.App.Ct. 986, 990, 418 N.E.2d 625 (1981) (delay of eight years between filing suit and attempt to add substantially different claim). These decisions are consistent with the Federal cases which state that delay alone is not enough to justify denial of a motion for leave to amend. See Cornell & Co., supra at 823; Mercantile Trust Co. Nat'l Ass'n, supra at 1012. The plaintiffs were not attempting to introduce or substitute a "markedly" different theory of liability, nor was trial any longer imminent. The record shows no indication of bad faith, dilatory tactics or other justification for the motion judge's denial of the plaintiffs' motion for leave to amend. Thus, the judge should have allowed the plaintiffs to amend their complaint to add a claim for breach of warranty of merchantability.

Unfortunately, the present problem was exacerbated by the trial judge's mistaken belief that he had little discretion to allow the plaintiffs' motion for leave to amend, which led to his granting of Whitin's motion in limine to exclude from the trial all reference to breach of warranty. In response to the defendant's motion in limine, plaintiffs' counsel agreed that he would not mention breach of warranty in his opening statement, but would resubmit his motion to amend to conform to the evidence if the evidence warranted such a motion. The judge stated that he would address the motion for leave to amend "at a later time." The plaintiffs' counsel reiterated that he intended to seek leave to amend the complaint to conform to the evidence once such evidence was introduced. The judge cited with approval Barringer v. Northridge, 266 Mass. 315, 165 N.E. 400 (1929). The court in Barringer, supra, held that a judge was bound to accept the decision of a previous judge on "precisely the same motion." Id. at 320, 165 N.E. 400. The judge in the present case quoted from Barringer: "There would be no end of litigation if a party, defeated before one judge, were privileged to go before another judge of the same court and in the same case seek a different decision upon the same point.... The policy of the law requires that litigation be ended within a reasonable time ...; it condemns successive hearings of the same point once decided after a hearing not vitiated by any error...." Id. The judge in the present case stated that if he had been the...

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