Sharpe v. Metropolitan Transit Authority
| Decision Date | 07 March 1951 |
| Citation | 327 Mass. 171,97 N.E.2d 399 |
| Parties | SHARPE v. METROPOLITAN TRANSIT AUTHORITY. SHARPE v. JONES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Philip Sherman, Boston, for plaintiff.
P. J. Dolan, Boston, for defendants.
Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.
On September 17, 1947, the plaintiff's testator, John Chauncey, was in contact with a motor vehicle of the defendant Metropolitan Transit Authority, operated by the defendant Jones. Chauncey in his lifetime brought these actions for personal injuries and medical expenses by writs dated October 16, 1947. On October 5, 1949, two years and eighteen days after his injury, Chauncey died. On December 22, 1949, the present plaintiff, as Chauncey's executor, was admitted to prosecute the actions. On June 28, 1950, the plaintiff moved to amend the original declaration in each action by adding thereto a count for Chauncey's death, alleging that death resulted from the injuries sustained September 17, 1947.
The judge ruled as matter of law that the motions could not be allowed, denied them, and reported his action in so doing.
We do not see how the motions could have been allowed. Any causes of action for the death of Chauncey were governed by G.L. (Ter.Ed.) c. 229 §§ 2 and 6, as appearing in St.1947, c. 506, §§ 1A and 2, which were in force at the time of the injury and which by reason of St.1949, c. 427, § 11, continued to apply to death resulting from injuries occurring before January 1, 1950, notwithstanding the extensive changes in the death statutes brought about by the 1949 act. Section 6 as appearing in § 2 of the 1947 act contains this provision, upon which the plaintiff relies, 'In any action to recover damages for an injury resulting in death, damages for such death may be recovered under a separate count in the same manner as in the case of a separate action under section two or five A and subject to all provisions of law otherwise applicable to such action.' 1 This section created the possibility of joining in a proper case a count for death with a previously existing count for conscious suffering, a possibility which would not otherwise exist, Brennan v. Standard Oil Co. of New York, 187 Mass. 376, 377, 73 N.E. 472; McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 569, 107 N.E. 439; Beauvais v. Springfield Institution for Savings, 303 Mass. 136, 146, 20 N.E.2d 957, 124 A.L.R. 611, but it did not do away with the necessity of an amendment adding the count for death, and it did not override the statutes governing amendments. See Guarino v. Russo, 215 Mass. 83, 102 N.E. 128; MacCormac v. Hannan, 248 Mass. 86, 143 N.E. 270.
The pertinent statute relative to amendments is G.L. (Ter.Ed.) c. 231, § 51. So far as here applicable that statute provides that the court may 'allow amendments introducing a necessary party, discontinuing as to a party or changing the form of the action, 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 * * *.' The proposed amendments would not have introduced a necessary party or discontinued as to a party. Neither would they have changed the form of the actions. The form of the actions for personal injury would have remained as before. New and different causes of action would have been added without otherwise changing the form of anything. It follows that if the proposed amendments were allowable at all they must have been allowable to 'enable the plaintiff to sustain the action for the cause for which it was intended to be brought.' But when Chauncey in his lifetime brought actions to recover for his personal injuries he could not possibly have intended to bring them to recover for his own death. Therefore the amendments could not be allowed. Church v. Boylston & Woodbury Cafe Co., 218 Mass. 231, 105 N.E. 883.
The plaintiff is not helped by the provisions of G.L. (Ter.Ed.) c. 231, § 138, that ...
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Tisei v. Building Inspector of Marlborough
...(1974). Contrast Knights v. Treasurer & Recr. Gen., 236 Mass. 336, 338--341, 128 N.E. 637 (1920), and Sharpe v. Metropolitan Transit Authy., 327 Mass. 171, 174, 97 N.E.2d 399 (1951), both decided before the adoption of the new rules of civil On the assumption that the plaintiff does seek, a......
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Clifford v. Clifford
...1264. In this Commonwealth, the amendment provisions of G.L. c. 231, § 51, have been liberally construed. Sharpe v. Metropolitan Transit Authy., 327 Mass. 171, 174, 97 N.E.2d 399. Wadsworth v. Boston Gas Co., 352 Mass. 86, 223 N.E.2d 807. Rule 7 of the Rules of the Probate Courts (1959) pro......
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Dermody v. Utley
...that 'damages for the injury from which the death resulted may be recovered under a separate count'. See Sharpe v. Metropolitan Transit Authority, 327 Mass. 171, 97 N.E.2d 399. It is contended by the plaintiff that, although under § 6, previous to its amendment, the plaintiff could recover ......
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