Keljikian v. Star Brewing Co.

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

303 Mass. 53

20 N.E.2d 465

OSCAR KELJIKIAN & another v. STAR BREWING COMPANY.

Supreme Judicial Court of Massachusetts, Middlesex.

April 13, 1939

February 10, 1939.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Contract, Implied. Judgment. Agency, Scope of authority. Pleading, Civil Demurrer. Practice, Civil, Appeal, Judgment ordered in Supreme Judicial Court. Words, "Judgment."

A demurrer properly was sustained to a declaration alleging in substance that a judgment was recovered by a customer against the plaintiff proprietor of a restaurant, which the plaintiff was "obliged to pay," and that the judgment was based on an injury sustained when the customer fell into a trap door in the restaurant negligently opened by an employee of the defendant in the instant action, where there was no allegation that the defendant's employee was acting within the scope of his employment, or that the judgment was one that could not be avoided, or that the plaintiff had notified the defendant to defend the action brought by the customer.

Historical review by LUMMUS, J., of the statutes and decisions respecting appeals in actions at law, particularly as to appeals from decisions on demurrers.

On an appeal in an action at law from an order sustaining a demurrer to the declaration, where the plaintiff had not requested leave to amend, this court, after deciding that the demurrer properly was sustained, issued a rescript affirming the order and ordering judgment for the defendant.

CONTRACT OR TORT. Writ in the Superior Court dated May 25, 1938. The demurrer to the declaration was sustained by M. Morton, J.

A. V. Harper, for the plaintiffs.

G. P. Walsh, (E.

B. Cass with him,) for the defendant.

LUMMUS, J. This action of "contract or tort" comes here upon the plaintiffs' appeal under G.L. (Ter. Ed.) c. 231, Section 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 "obliged to pay," in addition to the expense of defending the action.

1. The allegation that the wrongdoer 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 . Bacon v. Hooker, 173 Mass. 554, 557-558. See also Fanciullo v. B. G. & S. Theatre Corp. 297 Mass. 44 , 47-48. 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. Bartholomew v. Stobbs, 280 Mass. 559 . Where the liability of the plaintiffs to the person injured has not been determined by a judgment binding upon the defendant, the plaintiff's 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 Gas Light Co. 114 Mass. 149, 152, 153. Woodbury v. Post, 158 Mass. 140 . Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232 , 236. Boston v. Brooks, 187 Mass. 286 . Busell Trimmer Co. v. Coburn, 188 Mass. 254 . Dunn v. Uvalde Asphalt Paving Co. 175 N.Y. 214, 218. White v. Maryland Casualty Co. 139 App. Div. (N.Y.) 179, 185. See also Royal Paper Box Co. v. Munro & Church Co. 284 Mass. 446 , 453. 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. Richstein v. Welch, 197 Mass. 224 . C & R Construction Co. v. Boston, 273 Mass.

280. Genard v.

Hosmer, 285 Mass. 259 , 265, 266. Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445 , 449. Standard Oil Co. v. Robins Dry Dock & Repair Co. 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), Section 96. Merchants' Bank of Newburyport v. Stevenson, 7 Allen, 489. Massachusetts Gasoline & Oil Co. v. Go-Gas Co. 267 Mass. 122 .

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. 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, Section 14, and was broadened by Rev. Sts. (1836) c. 100, Sections 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, Section 30. The latter part of that sentence was amended by St. 1852, c. 312, Section 20, to read "within such time and upon such terms as the court may allow." Gen. Sts. (1860) c. 129, Section 24. Pub. Sts. (1882) c. 167, Section 25. R. L. (1902) c. 173, Sections 13, 49. G.L. (1921) c. 231, Sections 15, 52. G.L. (Ter. Ed.) c. 231, Sections 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, Section 33. St. 1852, c. 312, Section 23. G.L. (Ter. Ed.) c. 231, Section 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 . Treasurer of Boston v. American Surety Co. 217 Mass. 507 , 508. Compare G.L. (Ter. Ed.) c. 231, Section 76, and as to criminal cases, G.L. (Ter. Ed.) c. 263, Section 6, Commonwealth v. 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, Section 51. Cummings v. Ayer, 188 Mass. 292 . Fay v. Boston & Worcester Street Railway, 196 Mass. 329 , 330, 336. Grandchamp v. Costello, 289 Mass. 506 , 508. Means v. Leveroni, 297 Mass. 61 , 64. Urban v. Central Massachusetts Electric Co. 301 Mass. 519 , 524. 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, Sections 80, 113, 114, Lowd v. Brigham, 154 Mass. 107 , 109, Tyndale v. Stanwood, 186 Mass. 59 , Norton v. Lilley, 210 Mass. 214 , 218-219, Commonwealth v. Millen, 290 Mass. 406 , 411, Brand v. Suburban Land Co. Inc. 299 Mass. 336 , 339; (b) report, of course before final judgment (Granger v. Lovely, 302 Mass. 504), under G.L. (Ter. Ed.) c. 231, Section 111, Brocklehurst & Potter Co. v. Marsch, 225 Mass. 3; a mode originally not applicable to interlocutory matters except in the Supreme Judicial Court, Pub. Sts. (1882) c. 150, Section 8, St. 1900, c. 311, Terry v. Brightman, 129 Mass. 535, Liggett Drug Co. Inc. v. License Commissioners of North Adams, 296 Mass. 41 , 44; or (c) appeal, from the Superior Court and Land Court only, under G.L. (Ter. Ed.) c. 231, Section 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...