Pittsley v. David

Citation298 Mass. 552,11 N.E.2d 461
PartiesPITTSLEY v. DAVID.
Decision Date02 December 1937
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

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

Action of tort by Everett W. Pittsley, administrator, against Romeo E. David, executor, in the Superior Court. Verdict for the plaintiff in the sum of $1,500 on each count of the declaration, whereupon the judge entered a verdict for the defendant on the first count pursuant to leave reserved, and refused so to enter a verdict for the defendant on the second count, and both parties save exceptions.

Plaintiff's exceptions overruled; defendant's exceptions sustained; judgment for defendant.W. C. Ford, of Lawrence, for plaintiff.

J. F. Doyle, of Lynn, for defendant.

LUMMUS, Justice.

Both parties allege exceptions in an action of tort for personal injuries sustained on May 21, 1933, by the plaintiff's intestate, a married woman, while a guest in an automobile owned by the defendant's testator and driven by one Pittsley, who was the servant of the defendant's testator, acting within the scope of his employment, as well as the husband of the plaintiff's intestate. With reference to the occurrences of May 21, 1933, the plaintiff's intestate and the defendant's testator will be called respectively the plaintiff and the defendant.

1. On December 3, 1936, the plaintiff obtained a verdict upon the second count of the declaration for a violation of G.L.(Ter.Ed) c. 89, §§ 1, 4. The former section provides that ‘when persons traveling with vehicles meet on a way, each shall seasonably drive his vehicle to the right of the middle of the traveled part of such way, so that the vehicles may pass without interference.’ The latter section provides that ‘whenever on any way, public or private, there is not an unobstructed view of the road for at least one hundred yards, the driver of every vehicle shall keep his vehicle on the right of the middle of the traveled part of the way, whenever it is safe and practicable so to do.’ Section 5 of the same chapter provided, before its amendment by St.1936, c. 49, that ‘whoever violates any of the provisions of the four preceding sections shall * * * be liable in an action commenced within twelve months after the date of such violation for all damage caused thereby.’ Recovery under that section could be had by a guest, without proof of gross negligence or even of ordinary negligence. Gallagher v. Wheeler (Mass.) 198 N.E. 891;DiDonato v. Renzi (Mass.) 3 N.E.2d 239. This action was begun on July 10, 1933, within the statutory period. There was evidence that Pittsley in driving the defendant's automobile violated the statute, and thereby caused personal injury to the plaintiff.

The first defense is that a wife cannot recover from the master of her husband for injury caused to her by her husband's wrong. It is true that, if the wife should recover, her husband would be bound to indemnify his master (Pittsley v. Allen [Mass.] 7 N.E.2d 442), and her recovery could not profit the family unless her husband should be financially irresponsible. But though the defendant's contention finds support in decisions in a few States, we think it unsound. There is no universal legal identity of husband and wife. The policy that gives the husband immunity from actions at law by the wife (Lubowitz v. Taines [Mass.] 198 N.E. 320), does not extend the immunity to his master. Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293;Poulin v. Graham, 102 Vt. 307, 147 A. 698;Koontz v. Messer, 320 Pa. 487, 492, 493, 181 A. 792; Am.Law Inst.Restatement, Agency, § 217, comment b.

The second defense is that St.1936, c. 49, destroyed the cause of action. That statute, which was approved on February 13, 1936, contained an emergency preamble which caused it to take effect on that day. Article 48 of the Amendments to the Constitution, the Referendum, pts. 1, 2 G.L. (Ter.Ed.) c. 4, § 1; Rosenthal v. Liss, 269 Mass. 373, 376, 169 N.E. 142,O'Donnell v. Registrar of Motor Vehicles, 283 Mass. 375, 378, 186 N.E. 657. The effect of St.1936, c. 49, was to strike from G.L.(Ter.Ed.) c. 89, § 5, the words which provide that a violator of sections 1-4 shall ‘be liable in an action * * * for all damage caused’ by the violation. It contained no express reservation of pending actions or existing causes of action.

The civil action given to a person injured by a violation of the law of the road, measured the recovery by the amount of the damage caused by the violation. It was remedial, and not penal (Reed v. Northfield, 13 Pick. 94, 101, 102, 23 Am.Dec. 662;Cole v. Groves, 134 Mass. 471, 472;Wall v. Metropolitan Stock Exchange, 168 Mass. 282, 46 N.E. 1062;Wilson v. Head, 184 Mass. 515, 519, 69 N.E. 317), although the same section created a criminal liability, and restricted the civil action to a defendant punishable criminally. Goodhue v. Dix, 2 Gray 181; Reynolds v. Hanrahan, 100 Mass. 313. Therefore the plaintiff is not aided by G.L.(Ter.Ed.) c. 4, § 6, Second, which applies only to crimes and penal actions.

The plaintiff invokes the general rule, applicable in the absence of plain indication to the contrary, that the Legislature is deemed to intend that its acts shall have only a prospective operation, and shall not affect existing substantive rights though applicable to subsequent procedure even in pending cases. Wynn v. Board of Assessors of Boston, 281 Mass. 245, 249, 183 N.E. 528, and cases cited; Duggan v. Ogden, 278 Mass. 432, 435, 180 N.E. 301, 82 A.L.R. 765;Adams v. Adams, 211 Mass. 198, 202, 97 N.E. 982;O'Donnell v. Registrar of Motor Vehicles, 283 Mass. 375, 378, 186 N.E. 657;Woodrow v. Mansfield, 106 Mass. 112. Statutes narrowing or taking away defenses theretofore existing do not apply to existing causes of action. Bucher v. Fitchburgh Railroad Co., 131 Mass. 156, 41 Am.Rep. 216; Shallow v. Salem, 136 Mass. 136;Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 107 N.E. 426, Ann.Cas.1917A, 145, and cases cited; Rosenthal v. Liss, 269 Mass. 373, 376, 377, 169 N.E. 142; Abington v. Duxbury, 105 Mass. 287, 292. Likewise, statutes restricting the substantive right of a plaintiff to recover have been held not to apply to existing causes of action. In Wild v. Boston & Maine Railroad, 171 Mass. 245, 248, 50 N.E. 533, it was held that a plaintiff was entitled to recover the damages allowed by law when the cause of action arose for loss by fire communicated by a locomotive engine, notwithstanding a later statute restricting them and the purely statutory nature (G.L.[Ter.Ed.] c. 160, § 234) of the cause of action. In Hennessey v. Moynihan, 272, Mass. 165, 169, 172 N.E. 93, and Engel v. Checker Taxi Co., 275 Mass. 471, 476, 176 N.E. 179, it was held that a plaintiff struck by an automobile might rely as proof of negligence upon the failure of the defendant to give signals required by statute at the time of the injury though not at the time of the trial. In Hill v. Duncan, 110 Mass. 238, a statute relieving husbands from liability for the torts of their wives was held not to apply to pending actions if indeed applicable to existing causes of action.

A different principle appears to us to govern the case. It is stated by Gray J. in New London Northern Railroad Co. v. Boston & Albany Railroad Co., 102 Mass. 386, 389, as follows: ‘A statute which wholly repeals an earlier one, either expressly or by implication, without any saving clause, makes it ineffectual to support any proceedings, whether not yet begun, or pending at the time of its passage, and not already prosecuted to final judgment vesting absolute rights.’ Hammond, J. stated it more concisely as follows: ‘Where a statutory right of action is given, the repeal of the statute without a saving clause destroys the right.’ Wrentham v. Fales, 185 Mass. 539, 542, 70 N.E. 936, 937. This principle has been recognized in many cases in this Commonwealth and elsewhere. Sawyer v. Northfield, 7 Cush. 490, 493;Springfield v. Worcester, 2 Cush. 52, 61, 62; In re Petition of Mayor & Aldermen of Northampton, 158 Mass. 299, 302, 33 N.E. 568;In re Mayor and Aldermen of Taunton, Petitioners, 290 Mass. 118, 124, 194 N.E. 919;Flaherty v. Thomas, 12 Allen 428;Commonwealth v. Bennett, 108 Mass. 30, 11 Am.Rep. 304;United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763, 89 A.L.R. 1510;Hertz v. Woodman, 218 U.S. 205, 216, 30 S.Ct. 621, 54 L.Ed. 1001.

It does not apply where a new statute continues in force provisions of an old statute although in form it repeals them at the moment of its passage. Sawyer v. Northfield, 7 Cush. 490;Wright v. Oakley, 5 Metc. 400, 406, 407;United Hebrew Benevolent Association v. Benshimol, 130 Mass. 325;Loughlin v. Parkinson, 184 Mass. 565, 69 N.E. 319;McAdam v. Federal Mutual Liability Ins. Co., 288 Mass. 537, 541, 193 N.E. 362;McGray v. Hornblower (Mass.) 10 N.E.2d 501;G.L.(Ter.Ed.) c. 281, § 2; Posadas v. National City Bank, 296 U.S. 497, 504, 505, 56 S.Ct. 349, 352, 353, 80 L.Ed. 351; Gingaman v. Golden Eagle Western Lines, Inc., 297 U.S. 626, 56 S.Ct. 624, 80 L.Ed. 928. It cannot constitutionally be applied where its application would destroy or impair the obligation of a contract protected by article 1, section 10, of the Federal Constitution, or deprive a party of property protected by the Fourteenth Amendment to that Constitution or articles 1, 10 and 12 of the Declaration of Rights of the Constitution of Massachusetts. Frank Kumin Co., Inc., v. Marean, 283 Mass. 332, 186 N.E. 780;Standard Oil Co. of New York v. Back Bay Hotels Garage, Inc., 285 Mass. 129, 135, 188 N.E. 619;See v. Kolodny, 227 Mass. 446, 116 N.E. 888;Ainslee v. Boscketti, 230 Mass. 577, 119 N.E. 959;Manchester v. Popkin, 237 Mass. 434, 130 N.E. 62;Hill v. Duncan, 110 Mass. 238, 239;Duke Power Co. v. South Carolina Tax Commission (C.C.A.) 81 F.2d 513.

In Wilson v. Head, 184 Mass. 515, 69 N.E. 317, the plaintiff had a cause of action under St.1890, c. 437, § 2, for money paid...

To continue reading

Request your trial
15 cases
  • Kowaleski v. Kowaleski
    • United States
    • Oregon Supreme Court
    • 19 Abril 1961
    ... ... 320, 76 S.E.2d 636; Tallios v. Tallios, 1952, 345 Ill.App. 387, 103 N.E.2d 507; Broaddus v. Wilkenson, 1940, 281 Ky. 601, 136 S.W.2d 1052; Pittsley v. David, 298 Mass. 552, 11 N.E.2d 461; Miller v. J. A. Tyrholm & Co., 1936, 196 Minn. 438, 265 N.W. 324; McLaurin v. McLaurin Furniture Co., 1933, ... ...
  • Freeland v. Freeland
    • United States
    • West Virginia Supreme Court
    • 10 Septiembre 1968
    ... ... August Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293; Pittsley v. David, 298 Mass. 552, 11 N.E.2d 461; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; and Kowaleski v. Kowaleski, 227 Or. 45, 361 ... ...
  • Morin v. Letourneau
    • United States
    • New Hampshire Supreme Court
    • 1 Diciembre 1959
    ... ... This conclusion is enforced by the language used in Pittsley v. David, 298 Mass. 552, 11 N.E.2d 461, where discussion of the Lubowitz case indicates that the wife's disability to maintain her action in that ... ...
  • Tallios v. Tallios
    • United States
    • United States Appellate Court of Illinois
    • 21 Enero 1952
    ... ... 307, 147 A. 698; Metropolitan Life Ins. Co. v. Huff, 48 Ohio App. 412, 194 N.E. 429; Koontz v. Messer, 320 Pa. 487, 181 A. 792; Pittsley v. David, 298 Mass. 552, 11 N.E.2d 461; Hudson v. Gas Consumers' Ass'n, 123 N.J.L. 252, 8 A.2d 337; Broaddus v. Wilkenson, 281 Ky. 601, 136 S.W.2d ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT