Shapiro v. McCarthy

• Citation: 279 Mass. 425,181 N.E. 842
• Parties: SHAPIRO v. McCARTHY. SILVERMAN v. SAME.
• Decision Date: 01 July 1932
• Court: United States State Supreme Judicial Court of Massachusetts

279 Mass. 425

181 N.E. 842

SHAPIRO

v.McCARTHY.

SILVERMAN

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1932.

Report from Superior Court, Suffolk County; Weed, Judge.

Actions by Oscar Shapiro and by Murray N. Silverman against Margaret M. McCarthy. Plaintiffs' motions to amend their writs and declarations by substituting Thomas V. McCarthy as defendant were allowed, and substituted defendant's motions to dismiss were denied, and his pleas in abatement overruled, and the case is reported to the Supreme Judicial Court.

Affirmed.

W. B. Keenan, of Boston, for plaintiffs.

R. J. Walsh, of Boston, for defendant.

RUGG, C. J.

These actions of tort were brought originally against Margaret M. McCarthy. The declaration in each case in substance alleged personal injuries received on or about November 18, 1927, by the plaintiff while in the exercise of due care, because on a public way the defendant, her agents or servants, negligently operated a motor vehicle owned and controlled by her. Each writ was sued out within one year after the alleged date of the injury. The defendant at first filed in each case an answer setting up a general denial and contributory negligence on the part of the plaintiff, and on the eve of trial filed an amendment to the answer setting up that the motor vehicle was not at the time alleged being operated by, and was not under the control of, a person for whose conduct she was responsible. The plaintiffs went to trial without seeking to substitute as defendant the operator of the motor vehicle and without indicating a purpose to bring actions against him. The cases were tried together on June 27, 1930, and the jury returned verdicts for the defendant. On July 10, 1930, each plaintiff filed a motion to continue for ajudgment (which was allowed on the same day) and a motion to amend his writ and declaration by striking out the name of Margaret M. McCarthy as defendant and substituting therefor the name of Thomas V. McCarthy. After hearing, on April 17, 1931, by order of the court the motion was allowed in each case of the tenor following: ‘This motion seeks to substitute the son of the original defendant as the defendant herein. The son was operating the mother's car at the time of the accident. The action was begun after the one year's limitation [St. 1925, c. 346, § 10] became effective but before its existence was generally known to the Bar. Deeming that the plaintiff may be denied substantialright if this motion is denied, after hearing, motion allowed.’ New writs issued to the substituted defendant. The original defendant seasonably excepted, as did also the substituted defendant, who appeared specially for that purpose. The substituted defendant, appearing specially, filed a motion to dismiss and a plea in abatement in each case, on the grounds in brief that the amendment substituting him as defendant was in the circumstances disclosed improperly allowed because he was not a proper party to the action, because such allowance was an abuse of judicial discretion, and because the court was without jurisdiction. The motions to dismiss were denied and the pleas in abatement were overruled subject to exception by the substituted defendant. The trial judge thereupon reported (G. L. c. 231, § 111) for determination by this court the correctness of his orders upon the motions to amend, the motions to dismiss, and the pleas in abatement.

1. The defendants contend that the allowance of the amendment to the writ and declaration was wrong as matter of law. The pertinent statutes are two sections of G. L. c. 231, the words of which so far as here material are as follows: ‘Section 51. The court may, at any time before final judgment, * * * allow amendments introducing a necessary party, discontinuing as to a party * * * and may allow any other amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought. * * *’ ‘Section 138. The cause of action shall be considered to be the same for which the action was brought, if the court finds it to be the cause of action relied on by the plaintiff when the action was commenced, however the same may be misdescribed; and the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action. * * *’ These provisions are remedial. They have consistently been interpreted liberally. Pizer v. Hunt, 253 Mass. 321, 148 N. E. 801. Conclusiveness of the identity of the cause of action arising from the mere allowance of the amendment has often been recognized. Herlihy v. Little, 200 Mass. 284, 289, 86 N. E. 294;Tracy v. Boston & Northern Street Railway, 204 Mass. 13, 17, 90 N. E. 416;Guarino v. Russo, 215 Mass. 83, 84, 102 N. E. 128;Polvere v. Hugh Nawn Contracting Co., 215 Mass. 199, 204, 102 N. E. 334;Lufkin v. Cutting, 225 Mass. 599, 607, 114 N. E. 822.

It was permissible by amendment to strike out the party originally named as defendant and to substitute a different person as defendant, even though at that time an original action then brought against the new defendant would be barred by the statute of limitation. See cases collected in Genga v. Director General of Railroads, 243 Mass. 101, at page 104, 137 N. E. 637. This point has been recently decided again contrary to the contention of the defendants after full discussion in Johnson v. Carroll, 272 Mass. 134, 172 N. E. 85, 69 A. L. R. 1244. It needs no further elaboration. No change in the statement of the cause of action in the declarations was made by the amendments.

2. No recitals in the order of the trial judge of April 17, 1931, already quoted, cut down or throw a shadow upon the identity of the cause of action established as a finality by said section 138 by the mere allowance of the amendment provided within the legal power of the court. Reference in that order to certain facts and reasons discloses motives leading the trial judge to the exercise of his discretion in favor of the allowance of the motion. There is no attempt to describe facts showing the identity of the cause of action in the amended process and pleading with that for which it was originally intended. Such identity seems patent on the face of the record. Manifestly that subject was left to the sweeping effect of the statute.

3. The order bears no indication of an underlying purpose on the part of the trial judge to nullify the verdict of the trial jury by the allowance of the amendment. Allowance of the amendments does not affect the verdicts; it simply enables the plaintiffs to prosecute their causes of action arising from personal injuries against the person actually thought to be legally responsible therefor. No abuse of discretion is shown. The facts brought to the attention of the trial judge which moved him to the exercise of his discretion are not reported in detail and must be presumed to have been adequate basis for his action. The case at bar has no resemblance to Minot v. Boston, 201 Mass. 10, 86 N. E. 783,25 L. R. A. (N. S.) 311,Fidelity & Casualty Co. v. Huse & Carleton, Inc., 272 Mass. 448, 456, 457, 172 N. E. 590, and Landry v. Gomes, 273 Mass. 225, 173 N. E. 428, where after a verdict had been recorded some change in the amount of that verdict was attempted by procedure not authorized by practice or statute.

4. It was not beyond the jurisdiction of the court to allow the amendment. The statutory power conferred upon the court is to allow amendments to enable the plaintiff to sustain his ‘action for the cause’ for which it was intended to be brought. There is no distinction of substance between these words in their context and the conventional phrase ‘cause of action.’ ‘Cause of action’ is a comprehensive expression and may have somewhat variant significations. It ought not to be narrowed by attempts at definition. It includes violation of a right or breach of a duty for which the law provides a remedy in the courts. It is the specified subject made the basis of controversy in legal procedure. It is for all purposes of particular proceeding in court that which is declared in the pleadings as the ground of liability. Powers v. Chesapeake & Ohio Railway, 169 U. S. 92, 97, 18 S. Ct. 264, 42 L. Ed. 673. The cause of action is a different matter from the parties to a procedure in court. The cause of action exists in legal contemplation apart from those persons who may be parties to it. The plaintiff, the defendant, and the cause of action are separate and independent elements in an action, suit, or proceeding. Jordan v. County Commissioners of Bristol, 268 Mass. 329, 332, 167 N. E. 652. A cause of action is quite dissociated from a particular defendant. That is plain from the numerous cases already cited, where under said sections 51 and 138 amendments have been upheld striking out one defendant and substituting another defendant. That could not be done if a cause of action were indissolubly linked with a particular defendant. In McLaughlin v. West End Street Railway, 186 Mass. 150, 71 N. E. 317, it was said by Knowlton, C. J., touching allowance under the statute of an amendment substituting one defendant for another in an action of tort to recover compensation for personal injuries: ‘The cause of action * * * was the injury, and the plaintiff intended to bring it against the party liable for the injury.’

5. There is nothing shown on this record which as matter of law prevented the trial judge from allowing the amendment. The circumstance, that each plaintiff proceeded to trial after the defendant had pleaded the special defence that the operator or person in control of the motor vehicle was not a person for whose conduct she was responsible did not have that effect. The cause of action might nevertheless in fact be against the operator rather than the owner of the motor vehicle. The truth in that particular may not have been developed...