White v. E. T. Slattery Co.

• Citation: 236 Mass. 28,127 N.E. 597
• Parties: WHITE v. E. T. SLATTERY CO.
• Decision Date: 20 May 1920
• Court: United States State Supreme Judicial Court of Massachusetts

236 Mass. 28

127 N.E. 597

WHITE

v.E. T. SLATTERY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1920.

Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge.

Action by Katherine M. White against E. T. Slattery Company, wherein defendant filed a plea in abatement as well as the general issue. There was a finding for plaintiff on the issue of fact involved in the plea in abatement, and directed verdict for defendant on the general issue, and both parties except. Defendant's exceptions to finding on its plea in abatement sustained, and judgment entered for it; plaintiff's exceptions overruled.John J. O'Hare and John P. Sylvia, Jr., both of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone and Gay Gleason, both of Boston, of counsel), for defendant.

RUGG, C. J.

This is an action of tort wherein the plaintiff seeks to recover compensation for injuries sustained by her in 1912. The plaintiff filed a declaration briefly but adequately setting forth her cause of action. Thereupon the defendant filed a paper which it entitled, ‘Defendant's Motion and Plea.’ The substance of this pleading was that at the time of the injuries alleged in the plaintiff's declaration she was in the employ of the defendant and that the defendant was a subscriber under the Workmen's Compensation Act, St. 1911, c. 751, and that the plaintiff had at no time given notice in writing to the defendant under part 1, § 5, of the act, that she claimed a right of action at common law to recover damages for personal injuries, and that hence her right of action at common law was waived, ‘wherefore the defendant prays that the writ in said action may abate.’

The substantive facts set forth in this pleading do not constitute matter in abatement, but in bar. A plea in abatement goes to the form of the writ; a plea in bar goes to the cause of action. Whiton v. Balch, 203 Mass. 576, 578, 89 N. E. 1045. Any fact which impeaches the form of the writ, the timeliness of the action, the capacity of the parties, or such like matter not attacking the foundation of the cause of action, properly may be pleaded in abatement. Misnomer or any misdescription of parties, Trull v. Howland, 10 Cush. 109, 112,57 Am. Dec. 82;Day v. Floyd, 130 Mass. 488;Anderson v. Qualey, 216 Mass. 106, 108, 103 N. E. 90; nonjoinder of necessary parties, Feigenspan v. McDonnell, 201 Mass. 341, 345, 87 N. E. 624;Townsend v. Wheatland, 186 Mass. 343, 71 N. E. 782; the bringing of the writ in wrong county, Silver v. Graves, 210 Mass. 23, 32, 95 N. E. 948; pendency of prior suit between the same parties for the same cause, Worcester v. Lakeside Mfg. Co., 174 Mass. 299, 302, 54 N. E. 833;Moore v. Spiegel, 143 Mass. 413, 9 N. E. 827; that the plaintiff is not owner of or for any reason is not entitled to prosecute the cause of action either for his own benefit or that of another, Fay v. Guynon, 131 Mass. 31, 34; temporary inhibition operating on the plaintiff, National Fertilizer Co. v. Fall River Five Cents Savings Bank, 196 Mass. 458, 82 N. E. 671,14 L. R. A. (N. S.) 561,13 Ann. Cas. 510; coverture, Hayden v. Attleborough, 7 Gray, 338; the disability of being an Indian, Jaha v. Belleg, 105 Mass. 208; or being an alien enemy, Friedenwald Co. v. Warren, 195 Mass. 432, 434, 81 N. E. 207; infancy, Smith v. Carney, 127 Mass. 179; or other disability of plaintiff, Chamberlayne v. Nazro, 188 Mass. 454, 74 N. E. 674-must be taken advantage of by plea in abatement. Certain matters like nonexistence of corporation made party to the action, Whiton v. Balch, 203 Mass. 576, 89 N. E. 1045, and cases cited; non tenure in real actions, Dewey v. Brown, 5 Pick. 238; that the action is prematurely brought, Franklin Savings Institution v. Reed, 125 Mass. 365; that party is alien enemy in real actions, Hutchinson v. Brock, 11 Mass. 119-may be pleaded either in abatement or in bar.

The question whether a matter is in abatement or in bar is to be decided, not by the form in which it is presented, but by its substance. If it is essentially in bar of the action, it will be so treated and considered even though cast in the form of a plea in abatement. Merriman v. Currier, 191 Mass. 133, 141, 77 N. E. 708;Davis v. Carpenter, 172 Mass. 167, 172, 51 N. E. 530;Allin v. Connecticut River Lumber Co., 150 Mass. 560, 563, 23 N. E. 581,6 L. R. A. 416.

The facts that the defendant was a subscriber under the Workmen's Compensation Act and that the plaintiff was its employé and had not reserved her common-law rights as provided in part 1, § 5, of that act, if found to be true, were a complete bar to the cause of action set out in the plaintiff's declaration provided the injury of which she complained arose out of and in the course of that employment. Young v. Duncan, 218 Mass. 346, 106 N. E. 1;Gilbert v. Wire Goods Co., 233 Mass. 570, 124 N. E. 479. See Southern Pacific Co. v. Cal., 251 U. S. 259, 40 Sup. Ct. 130, 64 L. Ed. 258. These facts did not constitute any disability attaching to the plaintiff, nor any defect in the writ. In short, they do not relate to any matter of form. These facts would not enable the plaintiff to frame a more perfect writ. On the contrary, they went to the very vitals of the plaintiff's action. They showed that she never had, did not have at the date of the writ, and never could have a cause of action at law against the defendant arising out of the incident of which she complained. They demonstrated that her only remedy was under the peculiar procedure afforded by the Workmen's Compensation Act which is not an action at law at all. It properly, therefore, should have been pleaded in bar and must be treated now as a matter in bar.

In Young v. Duncan, 218 Mass. 346, 106 N. E. 1, the question was raised by a paper entitled ‘Motion and Plea’ which both parties ‘treated * * * as a plea in abatement,’ and the case was decided on its merits. That case affords no authority for the contention that the facts here or there pleaded constitute anything else than proper ground for a plea in bar.

This case comes before us on two bills of exceptions.

The first one is entitled ‘Defendant's Bill of Exceptions with Reference to Trial on the Plea in Abatement.’ It relates to the trial to a jury upon the plea in abatement, incorrectly so called as has been pointed out, for the purpose as therein stated ‘of determining whether the plaintiff was an employé of the defendant within the meaning of that term as used in the Workmen's Compensation Act.’ It is unnecessary to determine whether separate and distinct trials by jury of several defenses in bar could have been had against the objection of a party or whether in any case they ought to be permitted as matter of discretion. See St. 1913, c. 716, § 2. Ordinarily such separate trials would seem a hardship upon the parties and a burden upon the public treasury.

The facts in their aspect most favorable to the plaintiff, as shown by the whole record in both bills of exceptions, are that the plaintiff was under a general contract of employment, with the defendant for the year 1912 at a stipulated weekly salary as its buyer of millinery. She worked in the defendant's store in Boston and spent much of her time on the second and fifth floors, where were the showrooms and workroom, and every day visited the basement to meet jobbers. She had a regular lunch hour between 1 and 2, to do with as she saw fit. ‘The plaintiff further testified that on the day of the accident she, electing to take her lunch in the workroom on the fifth floor, sent her sister Elizabeth, who was one of her assistants, out to purchase some food and two theater tickets for the evening performance at Keith's. Elizabeth returned with the food for lunch only, having forgotten the theater tickets, whereupon the plaintiff, after partaking of the lunch, decided to go out and purchase the theater tickets herself. About 20 minutes after one the plaintiff put on her street clothing, hat, gloves, and wrap, and with the express and sole intention of leaving the store to purchase the aforesaid theater tickets for herself and her mother, she entered the elevator on the Tremont street side of the store. * * * The plaintiff at this time was using the elevator to do an errand of her own in which the defendant was in no wise interested. While alighting from the elevator at the street floor on her way to the theater, the plaintiff received injuries * * * on account of the alleged negligence of the defendant company, its agents and servants.’ The elevator on which the injury occurred was in the store of the defendant and was used in common by its customers and employés. It is not disputed that the defendant was a subscriber under the Workmen's Compensation Act, subject to all the liabilities and entitled to all the rights accruing therefrom.

There is no evidence tending to show, and the plaintiff does not contend that she had given the notice required by part 1, § 5, of the act as a condition precedent in order to enable her to maintain an action at common law for injuries arising out of and in the course of her employment.

The only reasonable inference of which these facts and the evidence are susceptible is that the injury to the plaintiff arose out of and in the course of her employment. She was within the store of her employer. The only...