Wescott v. Henshaw Motor Co.

• Decision Date: 06 March 1931
• Citation: 275 Mass. 82
• Parties: C.W. WESCOTT, administrator de bonis non with the will annexed, v. HENSHAW MOTOR CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 82

C.W. WESCOTT, administrator de bonis non with the will annexed, v. HENSHAW MOTOR CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 6, 1931

January 16, 1931.

Present: RUGG, C.

J., CROSBY, PIERCE CARROLL, & SANDERSON, JJ.

Negligence, Causing death. Limitations, Statute of. Agency, Scope of employment.

G.L.c. 260, Section 9, is inapplicable to an action for death, the payment of judgment in which is required to be secured by G.L.c. 90 such action, irrespective of residence of the defendant outside the

Commonwealth after the accrual of the cause of action, must be commenced within the one-year period specified in G.L.c. 260, Section

4, in the amended form appearing in St. 1925, c. 346, Section 10, incorporated in G.L.c. 229, Section 5, by St. 1925, c. 346, Section 9.

A verdict properly was ordered for the defendant at the trial of an action by an executor against a corporation for the conscious suffering and death of the plaintiff's testator resulting from negligence of the operator of an automobile, where the only evidence bearing on the question, whether the operator was acting within the scope of his employment by the defendant was uncontradicted testimony by the operator, who was a salesman for the defendant, that he owned the automobile and had it registered in his name, and received from the defendant an allowance for his expenses in operating it in addition to his salary; that he was on his way to interview a customer at the time of the accident; and that, although he was subject to the directions of the defendant "as to where he would go and what people he would see in reference to" sales, it was left to his judgment, within reasonable limitations, to decide how and when he should go, the road he should take and the manner in which he should operate the automobile.

TWO ACTIONS OF TORT for the conscious suffering and death of Evelyn C. Higgins, originally by Dora D. Philbrick, executrix under the will of Evelyn C. Higgins, and afterwards prosecuted by C.W. Wescott, administrator de bonis non with the will annexed. Writ in the first action dated November 3, 1927, and in the second action July 27, 1928.

In the first action, the defendant's answer contained an allegation that the automobile in question was not operated by an agent of the defendant for whose conduct the defendant was responsible. In the second action, the defendant pleaded the statute of limitations.

The actions were tried together in the Superior Court before P.J. O'Connell, J. Material evidence is stated in the opinion. The judge ordered a verdict for the defendant in the first action. In the second action, the judge denied a motion by the defendant that a verdict be ordered in his favor. Material portions of the judge's charge to the jury are stated in the opinion. There was a verdict for the plaintiff in the sum of $1 on the count for conscious suffering and the sum of $5,000 on the count for death. The plaintiff alleged exceptions in the first action, and the defendant alleged exceptions in the second action.

S.P. Sears, for the plaintiff. M.J. Mulkern, (E.F. Cameron with him,) for the defendant Henshaw Motor Co.

C.F. Albert, for the defendant Young.

CARROLL, J. These two bills of exceptions, one by the plaintiff and one by the defendant Young, are to rulings in actions of tort for the death of the plaintiff's testatrix and for her conscious suffering. In Wescott v. Young there was a verdict for the plaintiff. In Wescott v. Henshaw Motor Company a verdict for the defendant was directed by the court.

1. In the case against Young it appeared that the plaintiff's testatrix was struck by the motor vehicle operated by Young, in Reading, on April 13, 1927. The testatrix died April 23 1927. She was a resident of Maine. Her will was allowed in that State on July 12, 1927. On September 16, 1927, her will was allowed in the Probate Court of Middlesex County and ancillary letters were issued to Dora D. Philbrick, who brought an action in July, 1928, but died before the case came on for trial; Clement W. Wescott, the administrator appointed, was substituted as plaintiff.

In April, 1927, the defendant Young was a resident of this Commonwealth. In May of that year he went to Maine and later to Providence, Rhode Island, where he established a permanent residence in October, 1927. Since May, 1927, he has not resided in this Commonwealth. There was evidence of negligence by Young and of due care on the part of the plaintiff's testatrix. Young was called as a witness by the plaintiff, who cross-examined him. In the course of the cross-examination a record of his conviction on June 20, 1927, for operating an automobile negligently, was offered by the plaintiff, solely for the purpose of affecting the credibility of the witness. The defendant excepted to its admission.

The defendant moved for a directed verdict. The first count was for conscious suffering and on this count there was a verdict for the plaintiff for $1. The second count was for the death of the testatrix. The jury found for the plaintiff on this count in the sum of $5,000. The judge, after instructing the jury that the cause of action for the death accrued on the date of the death of the testatrix, gave the further instruction that, if they found the defendant resided out of the Commonwealth for any period after the cause of action accrued, they should deduct the period during which he so resided out of the Commonwealth in determining whether one year had elapsed between the date on which the cause of action accrued and the date on which the action was commenced. The defendant excepted to this part of the charge.

The plaintiff's testatrix died on April 23, 1927. The cause of action for her death accrued at this time. Bickford v. Furber, 271 Mass. 94 , 97. The action was commenced on the date of the writ. Gardner v. Webber, 17 Pick. 407, 412. Bickford v. Furber, supra. This date was more than one year after the cause of action accrued. Under G.L.c. 229, Section 5, as amended by St. 1922, c. 439, and St. 1925, c. 346, Section 9, recovery may be had against one who negligently causes the death of another who is in the exercise of due care, the action to be brought, with exceptions not material here, within two years after the injuries which caused the death. By St. 1925, c. 346, Section 10, and St. 1921, c. 319, Section 1, G.L.c. 260, Section 4, was amended. St. 1925, c. 346, Section 10, provides that ". . . actions of tort for bodily injuries or for death the payment of judgments in which is required to be secured by chapter ninety . . . shall be commenced only within one year next after the cause of action accrues." G.L.c. 90 is the motor vehicle and aircraft statute. It is not disputed by the plaintiff that the cause of action for the death of his testatrix in this action against Young is governed by G.L.c. 260, Section 4, as amended by St. 1921, c. 319, Section 1, and St. 1925, c. 346, Section 10.

An action for wrongfully causing the death of another is not a common law action; it is purely a statutory right. Where such a right is given, subject to certain conditions, failure to comply with the conditions is fatal to the existence of the right. Castaline v. Swardlick, 264 Mass. 481, and cases cited at page 483. Bickford v. Furber, supra. A statute which requires an action to be brought within a specified time makes that time of the essence of the right; when the time is passed, not merely the remedy is barred, but the right is gone.

The plaintiff contends that St. 1925, c. 346, Section 10, is controlled by G.L.c. 260, Section 9, this section providing in effect that residence out of the State is to be excluded in determining the time to bring an action. We cannot agree with this contention. The exclusive remedy given for death, the payment of judgments in which is required to be secured by G.L.c. 90 is that given by the statute. The right is conditioned by its terms and limited to the time stated in the statute. A similar question arose in Bickford v. Furber, supra. It...