Melanson v. Smith

• Decision Date: 17 February 1933
• Citation: 282 Mass. 85,184 N.E. 382
• Parties: MELANSON v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 85

184 N.E. 382

MELANSON

v.SMITH.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 17, 1933.

Exceptions from Superior Court, Essex County; Brown, Judge.

Action by Leo J. Melanson against Thetis E. Smith. Plaintiff was permitted to amend his declaration on the trial, and there was verdict for plaintiff. On defendant's exceptions.

Exceptions overruled.

F. E. Rafter, of Salem, for plaintiff.

Hill, Fitz & Howie and A. R. Pitcoff, all of Salem, for defendant.

PIERCE, Justice.

This is an action of tort arising out of an automobile accident. The writ is dated November 6, 1929. The original declaration as filed contained two counts. Count one alleged a collision on October 4, 1929, on a public highway in the city of Lynn between an automobile owned by the plaintiff and an automobile of the defendant; and that the collision was occasioned by the negligent and unskillful driving of the defendant. In this count damages are claimed for injuries to the plaintiff's automobile. Count two described the accident and the alleged cause of the collision in terms substantially like those set out in count one, and alleged that the wife of the plaintiff received severe bodily injuries in the said collision and that the plaintiff was put to great expense for medical treatment and medicine ‘occasioned as aforesaid all to his great damage.’ The answer of the defendant consisted of a general denial and an allegation of contributory negligence.

This case was reached for trial on June 23, 1932, and subsequently to the impanelling of the jury and the opening statement of the counsel for the plaintiff, the plaintiff moved to amend his declaration by the addition of a third count, which reads: ‘Now comes the plaintiff in the above entitled action and says that on or about the fourth day of October 1929 the defendant so negligently and unskilfully drove a motor vehicle on Western Avenue in the City of Lynn, Massachusetts, that by reason thereof the plaintiff was injured in consequence of the negligence of the defendant and as the result thereof he suffered much pain of body and anguish of mind and has been put to expense for medical attendance and care.’ The defendant averred the existence of the statute of limitations as a bar and objected to the allowance of the foregoing motion on the ground that it set up a new cause of action. Counsel for the plaintiff stated to the judge that he had intended to include a count for injuries to the person of the pl...