Johnson v. Carroll

• Decision Date: 01 July 1930
• Citation: 172 N.E. 85,272 Mass. 134
• Parties: JOHNSON v. CARROLL, and two other cases.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 134

172 N.E. 85

JOHNSON

v.CARROLL, and two other cases.

Supreme Judicial Court of Massachusetts, Middlesex.

July 1, 1930.

Report from Superior Court, Middlesex County; Frederic B. Greenhalge, Judge.

Separate actions by Catherine L. Johnson, by Charles J. Johnson, and by Francis Johnson, against Warren B. Osborne in each case. Plaintiffs later filed motions to amend their several writs and declarations by striking out name of Osborne and substituting Vincent G. Carroll as party defendant. Notice of motions was given to the former but not to the latter, and, after being allowed, order of notice for personal service was issued directed to Carroll, who appeared and in each case filed a motion to dismiss and an answer in abatement. Orders were entered denying the motions and overruling the answers. On report from the superior court.

Orders affirmed.

L. Hill, of Boston, for plaintiffs.

F. P. Hurley, of Boston, for defendant.

RUGG, C. J.

On July 4, 1927, a collision occurred on a public way between an automobile owned and operated by the plaintiff Charles J. Johnson, in which all the plaintiffs were riding, and an automobile owned by Warren B. Osborne which was being operated by Vincent G. Carroll, not as the agent of Osborne but with his permission and in his absence. Actions were brought by the several plaintiffs to recover compensation for personal injuries and property damages against Osborne. At that time the plaintiffs understood that Osborne owned the automobile which Carroll was operating. The several declarations alleged causes of action because of the negligence of Osborne or his agent in operating his automobile. Subsequently the plaintiffs filed motions to amend their several writs and declarations so as to strike out Osborne as defendant and to transform them into actions against Carroll founded on his negligence in operating the automobile. Notice of these motions was given to Osborne but not to Carroll, and they were allowed by the court over Osborne's objection. Thereafter order of notice for personal service was issued directed to Carroll. In due time he appeared and filed a motion to dismiss and an answer in abatement in each case, based on the facts already narrated. Orders were entered denying the motions and overruling the answers. The correctness of those orders has been reported for our determination.

The circumstance that after these actions were brought and before the motions to amend were filed, other actions founded on the same collision were brought against Carroll by the several plaintiffs, and after a short time discontinued, may be laid to one side. It is irrelevant to any issue here raised.

No one of the plaintiffs could have joined Osborne and Carroll as defendants in a single action upon the facts here disclosed. Popkin v. Goldman (Mass.) 165 N. E. 655. That has not been done. Osborne, the single defendant when the actions were brought, was eliminated from the cases as a party before Carroll was brought in, also as a single defendant.

The allowance of the amendment striking out Osborne as the defendant and inserting Carroll as the defendant was an adjudication by the court that the several plaintiffs would thereby be enabled to maintain their actions for the causes for which they were originally intended to be brought. It cannot be set aside if warranted upon the facts. It plainly was warranted. The cause of action intended to be prosecuted when the writs were sued out was that founded on the negligent operation of the automobile through collision with which they were injured. The facts hitherto recited fully warranted a finding that the cause of action for which each writ was brought was the same as that now being prosecuted. Herlihy v. Little, 200 Mass. 284, 289, 86 N. E. 294;Tracy v. Boston & Northern Street Railway Co., 204 Mass. 13, 17, 90 N. E. 416;Clark v. New England Telephone & Telegraph Co., 229 Mass. 1, 5, 6, 118 N. E. 348;G. L. c. 231, §§ 51, 138.

The defendant was not a party to the proceedings when the motions to amend were filed and allowed. Therefore he was not entitled to notice or to an opportunity to be heard. There was no violation of the principle that ordinarily there must be a hearing on controverted questions before decision is rendered. Parker v. Lewis J. Bird Co., 221 Mass. 422, 109 N. E. 368;Savage v. Welch, 246 Mass. 170, 184, 140 N. E. 787;Norcross v. Haskell, 251 Mass. 30, 33, 146 N. E. 239;Smyth v. Phillips Academy, 154 Mass. 551, 557, 28 N. E. 683;Union Trust Co. v. Magenis (Mass.) 165 N. E. 496. Hearing was given to Osborne, then the party defendant. That was all that was necessary. The introduction of a new party defendant without notice to him of the amendment is permissible. Of course he cannot be brought into court without process. Cohen v. Levy, 221 Mass. 336, 108 N. E. 1074. But that was issued in the...