Keljikian v. Star Brewing Co.

• Decision Date: 13 April 1939
• Citation: 303 Mass. 53,20 N.E.2d 465
• Parties: KELJIKIAN et al. v. STAR BREWING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 53

20 N.E.2d 465

KELJIKIAN et al.

v.STAR BREWING CO.

Supreme Judicial Court of Massachusetts, Middlesex.

April 13, 1939.

Action by Oscar Keljikian and another against Star Brewing Company to recover amount of judgment plaintiffs were compelled to pay to customer allegedly injured in plaintiffs' restaurant by reason of negligence of defendant's employee and expense of defending the action. From an order sustaining a demurrer to the plaintiffs' declaration, plaintiffs appeal.

Order sustaining demurrer affirmed and judgment for the defendant.Appeal from Superior Court, Middlesex County; Marcus Morton, Judge.

A. V. Harper, of Boston, for appellants.

G. P. Walsh and Edward B. Cass, both of Boston, for appellee.

LUMMUS, Justice.

This action of ‘contract or tort’ comes here upon the plaintiffs' appeal under G.L.(Ter.Ed.) c. 231, § 96, from an order sustaining a demurrer to the declaration.

The declaration alleges in substance that an employee of the defendant entered the plaintiffs' restaurant to deliver a cask of beer; that the employee ‘negligently and without warning to the plaintiffs or their customers opened a trap door in the floor’ into which a customer fell and was hurt; and that the customer brought an action against the plaintiffs and obtained judgment and execution for $600 and costs, which the plaintiffs were compelled to pay, in addition to the expense of defending the action.

1. The allegation that the wrong-doer was an employee of the defendant does not imply that while doing the wrong he was acting within the scope of his employment. McCann v. Tillinghast, 140 Mass. 327, 5 N.E. 164;Bacon v. Hooker, 173 Mass. 554, 557, 558, 54 N.E. 253. See also Fanciullo v. B. G. & S. Theatre Corp., Mass., 8 N.E.2d 174. Moreover, the declaration fails to allege that the plaintiffs were legally liable to the customer. If they were not, they would stand merely as volunteers needlessly discharging the obligation of the defendant. Bancroft v. Abbott, 3 Allen 524;Newell v. Hadley, 206 Mass. 335, 342, 92 N.E. 507, 29 L.R.A.,N.S., 908; Bartholomew v. Stobbs, 280 Mass. 559, 182 N.E. 846. Where the liability of the plaintiffs to the person injured has not been determined by a judgment binding upon the defendant, the plaintiffs must allege and prove that they were legally liable to the person injured and consequently paid under compulsion. It is not enough to allege and prove that the injured person obtained judgment against the plaintiffs; the plaintiffs must allege and prove that the judgment could not have been avoided. Gray v. Boston Gaslight Co., 114 Mass. 149, 152, 153,19 Am.Rep. 324;Woodbury v. Post, 158 Mass. 140, 33 N.E. 86;Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 236, 59 N.E. 657,51 L.R.A. 781, 86 Am.St.Rep. 478;Boston v. Brooks, 187 Mass. 286, 73 N.E. 206;Busell Trimmer Co. v. Coburn, 188 Mass. 254, 74 N.E. 334,69 L.R.A. 821;Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214, 218,67 N.E. 439;White v. Maryland Casualty Co., 139 App.Div. 179, 185, 123 N.Y.S. 840. See also Royal Paper Box Co. v. Munro & Church Co., 284 Mass. 446, 453, 188 N.E. 223. It is not alleged that the plaintiffs notified the defendant to undertake the defence of the action brought by the customer. In the absence of such notice the judgment in that action can have no binding force upon the defendant. Consolidated Hand-Method Lasting-Machine Co. v. Bradley, 171 Mass. 127, 131-133, 50 N.E. 464,68 Am.St.Rep. 409;Richstein v. Welch, 197 Mass. 224, 83 N.E. 417; C & R Construction Co. v. Boston, 273 Mass. 280, 173 N.E. 517;Genard v. Hosmer, 285 Mass. 259, 265, 266, 189 N.E. 46, 91 A.L.R. 543;Miller v. United States Fidelity & Guaranty Co., 291 Mass. 445, 449, 197 N.E. 75;Standard Oil Co. v. Robins Dry Dock & Repair Co., 2 Cir., 32 F.2d 182. The demurrer was, therefore, rightly sustained.

2. The remaining question is, What rescript ought to be entered? What we shall say about demurrers is not necessarily applicable to demurrers in equity, which differ in history and purpose from demurrers in common law actions. Langdell, Equity Pleading (2d ed. 1883), § 96; Merchants' Bank of Newburyport v. Stevenson, 7 Allen 489;Massachusetts Gasoline & Oil Co. v. Go-Gas Co., 267 Mass. 122, 166 N.E. 563.

At common law, a demurrer raised an issue of law, upon which the judgment was staked. By a rule of this court, adopted at Concord term, 1780, a plaintiff was given a general right to amend his writ and declaration ‘excepting after joinder in demurrer.’ After such joinder no amendment was allowed. Tappan v. Austin, 1 Mass. 31;Hamilton v. Boiden, 1 Mass. 50;Holbrook v. Pratt, 1 Mass. 96;Haynes v. Morgan, 3 Mass. 208;Bullard v. President, etc., of Nantucket Bank, 5 Mass. 99. Compare Perkins v. Burbank, 2 Mass. 81. A more general power of amendment was given by St.1784, c. 28, § 14, and was broadened by Rev.Sts.(1836) c. 100, §§ 22, 23. Hartwell v. Hemmenway, 7, Pick. 117, 121. The joinder in demurrer has persisted in our law down to the present day. It was provided by the practice act that ‘The opposite party shall be deemed to join in demurrer, if he shall not amend, which he may do, within ten days, upon such terms as the court may allow by a general rule.’ St.1851, c. 233, § 30. The latter part of that sentence was amended by St.1852, c. 312, § 20, to read ‘within such time and upon such terms as the court may allow.’ Gen.Sts.(1860) c. 129, § 24; Pub.Sts. (1882) c. 167, § 25; R.L.(1902) c. 173, §§ 13, 49; G.L.(1921) c. 231, §§ 15, 52; G.L. (Ter.Ed.) c. 231, §§ 15, 52. The implication is that joinder in demurrer is the alternative and opposite of seeking to amend. See Rules 8, 9 (16 Mass. 373); Rule 4 (24 Pick. 384). But it was provided by the practice act that ‘when a demurrer shall be sustained, overruled, or withdrawn, the court shall make such order as may be fit respecting the filing of an answer, or replication, or other allegation, or a trial of the facts.’ St.1851, c. 233, § 33; St.1852, c. 312, § 23; G.L. (Ter.Ed.) c. 231, § 19, and earlier statutes cited in the margin.

Under such a provision, it seems that judgment for the plaintiff can no longer be entered upon the overruling of a demurrer to the declaration, but that a defence to the merits must be permitted. Dwight v. Holbrook, 1 Allen 560;Hobson v. Satterlee, 163 Mass. 402, 40 N.E. 189; Treasurer of Boston v. American Surety Co. of New York, 217 Mass. 507, 508, 105 N.E. 373. Compare G.L.(Ter.Ed.) c. 231, § 76, and as to criminal cases, G.L.(Ter.Ed.) c. 263, § 6, Commonwealth v. Inhabitants of Gloucester, 110 Mass. 491, 496, 498. After a demurrer to the declaration has been sustained, however, and even after joinder in demurrer, and indeed even at an earlier stage of the case, in view of the permissive and discretionary nature of the statutory power to allow amendment, a judge may refuse to permit a plaintiff to amend his declaration. G.L.(Ter.Ed.) c. 231, § 51; Cummings v. Ayer, 188 Mass. 292, 74 N.E. 336;Fay v. Boston & Worcester Street Railway Co., 196 Mass. 329, 330, 336, 82 N.E. 7;Grandchamp v. Costello, 289 Mass. 506, 508, 194 N.E. 837;Means v. Leveroni, Mass., 7 N.E.2d 418;Urban v. Central Massachusetts Electric Co., Mass. 17 N.E.2d 718.Rule 23 of the Superior Court (1932) provides: ‘If a demurrer is sustained, and leave to amend is not denied, a case shall be deemed ripe for final judgment or decree only after ten days from the sustaining of the demurrer, or such other time as the court may allow for amendment, and then only after the disposition of any motion to amend the pleading demurred to, filed within such time. After the expiration of such time no motion to amend such pleading shall be filed without leave of court.’ That rule provides an orderly mode of seeking amendment, but neither gives a right to amend nor limits the power of the court to allow amendment at any time before final judgment.

A decision sustaining a demurrer to a declaration in an action at law may be brought to this court in one of three modes: (a) exceptions, a broad and inclusive remedy, almost necessarily prosecuted before final judgment, G.L.(Ter.Ed.) c. 231, §§ 80, 113, 114; Lowd v. Brigham, 154 Mass. 107, 109, 26 N.E. 1004;Tyndale v. Stanwood, 186 Mass. 59, 71 N.E. 83;Norton v. Lilley, 210 Mass. 214, 218, 219, 96 N.E. 351;Commonwealth v. Millen, 290 Mass. 406, 411, 195 N.E. 541;Brand v. Suburban Land Co., Inc., Mass., 12 N.E.2d 737; (b) report, of course before final judgment (Granger v. Lovely, Mass., 19 N.E.2d 798), under G.L.(Ter.Ed.) c. 231, § 111; Brocklehurst & Potter Co. v. March, 225 Mass. 3, 113 N.E. 646; a mode originally not applicable to interlocutory matters except in the Supreme Judicial Court, Pub.Sts.(1882) c. 150, § 8, St.1900, c. 311, Terry v. Brightman, 129 Mass. 535;Liggett Drug Co., Inc., v. Board of License Commissioners of North Adams, Mass., 4 N.E.2d 628; of (c) appeal, from the Superior Court and Land Court only, under G.L.(Ter.Ed.) c. 231, § 96, Cowley v. Train, 124 Mass. 226. This last mode, appeal, was adopted in the present case.

The history of appeals from the sustaining of demurrers at law is difficult to learn because of the long continued uncertainty as to the stage of the case at which the appeal had to be taken, and because of the different senses in which the word ‘judgment’ was used in statutes and decisions.

The practice act (St.1851, c. 233, § 33; St.1852, c. 312, § 23; Gen.Sts. [1860] c. 129, § 64; Pub.Sts.[1882] c. 167, § 67), after providing that the decision of a single justice upon certain demurrers as to form should be final, provided as follows: ‘But if the cause of demurrer shall be that the facts stated do not in point of law support or answer the action, and the party against whom the decision shall be made shall not pray for leave to amend, the decision of such single justice shall not be final, but such demurrer may be further heard, upon appeal or otherwise, as is now provided in respect to such questions of law.’ In ...