McGreevey v. Boston Elevated Ry. Co.

• Decision Date: 01 March 1919
• Citation: 122 N.E. 278,232 Mass. 347
• Parties: McGREEVEY v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 347

122 N.E. 278

McGREEVEY

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1919.

Exceptions from Superior Court, Suffolk County; John D. MacLaughlin, Judge.

Action by Cornelius J. McGreevey against the Boston Elevated Railway Company. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

See, also, In re Donovan, 217 Mass. 76, 104 N. E. 431.

Mr. Ranney, in opening for the defendant, said that it had appeared that Joseph McGreevey had already recovered and had been paid a substantial amount in his own suit, he thought $4,000. Mr. Fuller objected; the court said he would let it stand.

Mr. Fuller: I wish I could have an exception to that.

The Court: Very well.

Mr. Ranney: What I wanted to say, gentlemen, was this:

In cases of this kind a suit by the father is to recover for the loss of the services of the boy till he is 21 and for any expenses that the father was put to for a doctor or a nurse. Here the last two items are eliminated, because the boy admitted on cross-examination that they were paid for from his money; so that the father didn't have to pay them. So that all we have to consider is the father's loss of services from the time the boy was hurt for the five years-five years and two months, to be exact-till he was 21. The boy was paid, or didn't get paid-it wouldn't make any difference which-for all that he suffered, either for pain and suffering or loss of enjoyment of life or diminished capacity to labor, at least from the time he was 21. All that, the boy has been paid for, so that there is no need of any sympathy for him.

Now here the father comes in, after the boy's suit has been disposed of and about five years and a half after the accident happened and brings this suit. I shall not argue the motive of bringing it at present-that I will do later. But you have here in the first place the separate question of liability. That is, it would not be fair toward either side if you let the result of the previous suit affect your judgment in regard to the question of liability.

In the closing argument of the defendant, the defendant's counsel repeated in substance what has already been set forth from his opening argument in explanation of what this suit if for, and then added the following statement:

‘I claim, on the facts, that this suit by the father is an afterthought. Generally a suit by the father for injuries to the son, just like a suit by a husband for injuries to his wife, is brought at the same time with the principal suit, that is, with the suit brought by the son, or at all events is brought in time so that both suits are tried together. But here, although the counsel in the two suits is the same, the suit for the son was brought in May, 1912, was tried in 1913, and judgment recovered for a large sum, some forty-six hundred dollars, while the accident itself on which the suit was founded happened way back in December, 1908, yet all this time the father brought no suit. He never did bring suit until the son's suit was all over and the judgment paid by the defendant and until after the son had become of age in March, 1914. The writ in this suit was brought in June, 1914, five and a half years after this accident happened. You should consider whether if the father was really injured in any substantial way by the loss of the boy's earnings, as he now claims, he would not have brought a suit years ago. Is it not a fair inference that the father did not really lose much on account of this boy's injury as a matter of fact, and that he is exaggerating the amount that the boy received a week from his brother, and the length of time that this accident prevented the boy from working? It looks very much as if because the son Joseph had come into court and got a big fist full of money, easy money, that the father, meaning the plaintiff, thought he would like to try his hand and see if he could not do the same thing, and that is why this case is brought.’

S. A. Fuller and Chas. Toye, both of Boston, for plaintiff.

Fletcher Ranney and Thos. Allen, Jr., both of Boston, for defendant.

BRALEY, J.

[5] The plaintiff's son Joseph McGreevey, a minor living with his father, sued the defendant in 1912 for personal injuries suffered in 1908 when he was fifteen years...