McLellan v. Fuller

• Decision Date: 13 March 1917
• Citation: 115 N.E. 481,226 Mass. 374
• Parties: McLELLAN v. FULLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 374

115 N.E. 481

McLELLAN

v.FULLER.

Supreme Judicial Court of Massachusetts, Middlesex.

March 13, 1917.

Exceptions from Superior Court, Middlesex County; Stevens, Judge.

Action by James C. McLellan against Samuel A. Fuller. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

Ralph W. Gloag and Wm. Peyton, both of Boston, for plaintiff.

Bernard J. Killion and Chas. Toye, both of Boston, for defendant.

BRALEY, J.

It was said in Gilbert v. Williams, 8 Mass. 51, 56,5 Am. Dec. 77:

‘There is no doubt that for any misfeasance or unreasonable neglect of an attorney, whereby his client suffers a loss, an action may be supported and damages recovered to the amount of that loss.’

The plaintiff accordingly had the burden of establishing by competent evidence the fact of neglignece or want of reasonableskill on the part of the defendant, and the actual loss or damages resulting therefrom. Whitney v. Abbott, 191 Mass. 59, 64, 77 N. E. 524.

The jury could find that the defendant was seasonably retained to effect a settlement or to bring an action for personal injuries against the plaintiff's employer under R. L. c. 106, § 71, cl. 2, but neglected to give the notice required by section 75, and that because of this omission which they also could say was due to the negligence of counsel a verdict for the defendant was ordered at the trial of the case. But if independently of this fatal defect the plaintiff had no case on the merits he has not suffered any loss except as to the expenses he may have sustained in preparing for the trial; a question which has become merely incidental.

The question whether he had a case entitling him to go to the jury upon proof of compliance with the precedent condition imposed by the statute and whether he probably would have recovered a verdict was properly stated by the judge in his instructions. It was therefore correctly ruled that whether the plaintiff could have maintained the action was the question to be determined, and much evidence was introduced on this issue.

The due care of the plaintiff, a minor at the date of the accident and that one Ogley, to whom we shall hereafter refer as the superintendent, had been charged with the duties of superintendence or that if while he was removing one gear and putting another gear on the back end of the spinning frame, the ‘frame’ started the plaintiff would be exposed to the danger of severe injuries, in so far as not conceded were for the jury.

He testified, that when injured he was shifting the gear in compliance with an order of the superintendent who gave him the gear and ordered him to ‘put it on the frame,’ and the jury could find on his evidence that he had received instructions from the superintendent ‘that the frame would not be started until the plaintiff reported to either the superintendent or the foreman of the room.’ The jury could further find on conflicting evidence which it is unnecessary to recapitulate, that the frame being at rest, and while the plaintiff was engaged in making the change, the superintendent with full knowledge of the circumstances, and without any warning gave an order to start the machine, which having been obeyed, the plaintiff suffered the injuries of which he complained. It being plain that the answers of the jury to the questions were warranted by the evidence, the first, second, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and nineteenth requests were denied rightly. McLellan v....