Libby v. New York, N.H.&H.R. Co.

• Decision Date: 28 September 1931
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LIBBY v. NEW YORK, N. H. & H. R. CO.

277 Mass. 1

177 N.E. 679

LIBBY

v.NEW YORK, N. H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Barnstable.

Sept. 28, 1931.

Report from Superior Court, Barnstable County; Whiting, Judge.

Action by Alvira E. Libby, administratrix, and by Edith G. Libby, administratrix, against the New York, New Haven & Hartford Railroad Company. On report after interlocutory order denying plaintiffs' motions to amend.

Affirmed.

See, also, 174 N. E. 171, 73 A. L. R. 101.

G. Alpert, of Boston, for plaintiffs.

E. J. Phillips of Boston, for defendant.

WAIT, J.

These cases are before us upon reports from a judge of the superior court which present the singel question whether after rescripts from this court ordering judgments for the defendant under the provisions of G. L. c. 231, § 122, he had authority to allow amendments in the cases. The judge ruled that he was without authority. He stated that if he had discretion in the matter he would allow amendment. Before the day on which judgments after rescript would enter in ordinary course pursuant to Common Law Rule 56 of the superior court, the cases were continued for judgment pending final determination on the motions to amend.

We put to one side, as irrelevant, the questions whether, under G. L. c. 231, § 56, formal defects or imperfections in the record or proceedings may be corrected by an amendment in affirmance of the judgment. The amendments here sought were not in affirmance of the judgments ordered.

The material circumstances are as follows: The occasion for the actions at law was the deaths of Albert Paul Libby and Charles N. Libby by reason of a collision between the motor vehicle in which they were riding and a motorbus of the defendant moving upon its railroad tracks at a crossing of the railroad and a highway. As originally filed, the declarations each contained eight counts. The first six counts set out claims at common law and under the general statute authorizing actions for negligence resulting in death. G. L. c. 229, §§ 3, 5. The seventh count in each alleged liability for death under G. L. c. 160, § 232, which gives an action against a railroad corportion if a person is injured in his property or person by collision with the engine or cars of the railroad corporation at a highway crossing and it appears that neglect to give the signals required by G. L. c. 160, § 138, contributed thereto. The eighth count, also under G. L. c. 160, § 232, alleged liability for conscious suffering. Both declarations ended with the statement: ‘All of the foregoing counts are for the same cause of action.’ At the trial, after the close of the evidence, the plaintiffs waived the first six counts of their declarations and went to the jury on the seventh and eighth counts only. The judge refused to direct verdicts for the defendant, who took exception thereto. After verdicts for the plaintiffs, the defendant brought the cases to this court on bills of exceptions which recited that they contained the evidence ‘material to the issues raised by these exceptions.’ This court decided that neither plaintiff could maintain her action under G. L. c. 160, § 232, because G. L. c. 160, § 138, did not apply in the situation disclosed. Libby v. New York, New Haven & Hartford Railroad (Mass.) 174 N. E. 171, 174, 73 A. L. R. 101. The rescripts ran: ‘Exceptions sustained. Judgment for the defendant.’ The opinion shows that no exception other than to the refusals to direct the verdicts upon the ground of the inapplicability of the statute with reference to the signals required by law was considered. Nothing was said with regard to the exercise of the authority to order judgments for the defendant given by G. L. c. 231, § 122 to this court. No exceptions taken by the plaintiffs appeared. The opinion was filed December 20, 1930. Rehearing, requested by the plaintiffs on December 26, was denied on January 5, 1931. On January 23, 1931, the plaintiffs moved for leave to amend by adding new counts to their declarations. In substance they sought to reinstate the six counts which they had waived at the trial.

It is obvious that the statement that the counts of the declarations as originally filed were for the same cause of action was inaccurate. The occasion for suing was single. The causes of action were diverse. The evidence in support of the allegations might show a cause of action at common law for conscious suffering, a cause of action createc by statute for negligence resulting in death, a cause of action created by a different statute for negligent failure to give certain signals required by law or to supply specified equipment. The amount recovered might belong to one or another set of beneficiaries. After the waiver, however, only a single cause of action remained, the only cause to which the evidence could then be related, a cause of action which could not be maintained.

G. L. c. 231, § 122, is the embodiment in the general laws of St. 1909, c. 236, § 1. Before St. 1909, c. 236, took effect the jurisdiction of this court in a matter brought before it upon a bill of exceptions was limited to the question of law so raised. This court had nothing to do with reference to what should be done in the case after its rescript had settled the point of law presented. Its rescript left the case open for any appropriate action not inconsistent with the decision which it had rendered. Platt v. Justices of the Superior Court, 124 Mass. 353, 355. See Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, Ann. Cas. 1912D, 588. ‘Exceptions sustained’ implied that parties were entitled to a new trial on all the issues of the pleadings in force when the new trial took place. Amendment after rescript was within the discretion of the trial court. Cheney v. Boston & Maine Railroad, 246 Mass. 502, 141 N. E. 502;Terry v. Brightman, 133 Mass. 536;Gale v. Nickerson, 144 Mass. 415, 11 N. E. 714. The statute of 1909 changed this. Its title, ‘An Act to provide for expediting the final determination of causes,’ states its purpose. Its language follows: ‘Section 1. When, in the trial of a civil action, the presiding justice is requested to rule that upon all the evidence the plaintiff cannot recover, and such request is refused, and exception by the defendant to such refusal is duly taken, and a finding or verdict returned for the plaintiff, then if the defendant's said exception is sustained in the supreme judicial court, and exceptions if any taken in said trial by the plaintiff are all overruled, the supreme judicial court may, by rescript, direct the entry in the trial court of judgment for the defendant, and thereupon judgment shall so be entered.

‘Section 2. When, in the trial of a civil action the presiding justice is requested by the plaintiff to rule that upon all the evidence a finding or verdict should be returned for the plaintiff, and such request is refused, and an exception to such refusal is duly taken, and a finding or verdict is returned for the defendant, then if the plaintiff's said exception is sustained in the supreme judicial court, and the exceptions, if any, taken in said trial by the defendant are all overruled, the supreme judicial court may, by rescript, direct the entry in the trial court of judgment for the plaintiff, and thereupon judgment shall so be entered.

‘Section 3. Nothing in this act shall be construed as affecting or limiting the power of the trial court to set aside a verdict and order a new trial for any cause for which a new trial may be law be granted.’

That language is significant. The Supreme Judicial Court ‘may’ direct entries of judgment, ‘and thereupon judgment shall so be entered.’ Section 3 is needed to preserve in the trial court authority ‘to set aside a verdict and order a new trial for any cause for which a new trial may by law be granted.’ That section has been separated from sections 1 and 2 in the revision made by the General Laws; but continues in force as G. L. c. 231, § 131. This court is left at liberty to decide whether in circumstances within the purview of the statute an entry of judgment should be directed, but the trial court shall enter the judgment if so directed. In Archer v. Eldredge, 204 Mass. 323, 327, 90 N. E. 525, 526, one of the earliest cases to refer to the statute, it is stated: ‘The power conferred by this statute will ordinarily be exercised only when it is apparent that the real issues have been fully tried, or the merits of the case are plain.’ The court there sustained exceptions to an erroneous refusal to direct a verdict, but refused to direct judgment under St. 1909, c. 236, because the case had not been tried along lines which the opinion indicated might have produced a different result. Such...