Home LAWRENCE NEIL, administrator, vs. WHITING MILK COMPANY, INC. (and a companion case [Note 1]).

366 Mass. 305

September 18, 1974 - November 4, 1974

Middlesex County

Present: TAURO, C.J., REARDON, BRAUCHER, HENNESSEY, & WILKINS, JJ.

Where it appeared that an action for conscious pain and suffering of one who was involved in an automobile accident and died that day after the accident was brought more than two years after the accident, that an administrator of the deceased was appointed after the action was begun but was not substituted as plaintiff until more than two years after he gave bond, that a verdict for the defendant was directed on the ground that recovery was barred by the statute of limitations, and that the plaintiff failed to file a timely bill of exceptions and judgment for the defendant was entered, it was held that there was no abuse of discretion in denying a petition by the plaintiff to vacate the judgment. [306-307]

TWO ACTIONS OF TORT. Writs in the Superior Court dated January 26, 1967, and February 14, 1967, respectively.

The actions were tried before Mitchell, J., and petitions to vacate judgment were heard by him.

Stanley M. Cohen for the plaintiff.

Steven J. Cohen (Jeffrey S. Stern with him) for Whiting Milk Company, Inc.

Herbert S. O'Neill, for Richard H. Dodge & another, submitted a brief.


BRAUCHER, J. These actions of tort for conscious pain and suffering and for wrongful death involved questions under the statute of limitations resembling those decided

Page 306

in Gaudette v. Webb, 362 Mass. 60 (1972). Judgments for the defendants were entered in 1971, and after the Gaudette decision the plaintiff filed petitions to vacate the judgments under G. L. c. 250, Sections 15-20. We hold that the judge did not abuse his discretion in denying the petitions, and we overrule the plaintiff's exceptions to the denials. Mass. R.A.P., 1A, par. 7, 365 Mass. 845 (1974).

The actions arose out of an automobile accident on October 24, 1964, resulting in the death of a minor pedestrian on October 25, 1964. The actions were commenced on January 26, 1967, and February 14, 1967. The plaintiff, father of the decedent, was appointed administrator of his estate on June 21, 1967, and gave bond on June 28, 1967, which was approved on June 29, 1967. He was substituted as plaintiff on May 25, 1971. At trial on May 25, 1971, verdicts were directed for the defendants on the plaintiff's opening statement on the ground that the statute of limitations barred recovery.

No bill of exceptions or motion to extend the time for filing a bill of exceptions was filed within twenty days, as required by G. L. c. 231, Section 113. Thereafter the plaintiff filed a motion for late filing; that motion was heard and denied on July 26, 1971, and the plaintiff claimed an exception but did not file a bill of exceptions or move for an extension of time. Judgments for the defendants were entered on August 23, 1971. On August 15, 1972, the plaintiff filed petitions to vacate the judgments. The petitions were denied on January 2, 1973, and substitute bills of exceptions were allowed on July 23, 1973. The cases were transferred to this court from the Appeals Court under G. L. c. 211A, Section 10(A), inserted by St. 1972, c. 740, Section 1.

The defendants argue that the claims for wrongful death are "to the use of the next of kin." G. L. c. 229, Section 1(4), as amended by St. 1961, c. 166; Section 2, as amended by St. 1962, c. 306, Section 1. They further argue that the next of kin are the decedent's parents and do not include his minor brother. G. L. c. 190, Sections 2, 3. Therefore, they say, no minor is entitled to the action and G. L. c. 260, Section 7, as construed in

Page 307

Gaudette v. Webb, supra, is inapplicable. They also point out that in Gaudette v. Webb, supra, we said that G. L. c. 260, Section 10, does not apply to wrongful death actions. The plaintiff apparently yields to these arguments and confines his argument to the claims for conscious pain and suffering. We consider only those claims.

The plaintiff's claims for conscious pain and suffering were dismissed because more than two years elapsed between the accident or the death and the commencement of the actions. G. L. c. 260, Section 4, as amended by St. 1960, c. 271. Under Gaudette v. Webb, supra, 362 Mass. at 63, however, the cases were governed by G. L. c. 260, Section 10, permitting commencement of an action by an administrator "within two years after his giving bond." The actions here were commenced before the plaintiff gave bond, and he was substituted as plaintiff in 1971, more than two years after he gave bond. He claims that the original defect in the writs and declarations was cured by the substitution and that the actions were therefore timely brought. G. L. c. 231, Section 51. But compare Brooks v. Boston & No. St. Ry. 211 Mass. 277 , 279 (1912); O'Rourke v. Sullivan, 309 Mass. 424 , 427 (1941).

We assume, without deciding, that the plaintiff's analysis is correct and that the judge was therefore in error in deciding that the actions were barred. But any such error was open to correction by bills of exceptions as in Gaudette v. Webb, supra. The plaintiff does not and indeed cannot assert that in failing to file timely bills of exceptions he relied on a decision of this court on the precise point. "The granting of a petition to vacate a judgment is not governed by a fixed rule but rests largely although not exclusively in the sound discretion of the court." Russell v. Foley, 278 Mass. 145 , 148 (1932). We think that no abuse of discretion has been shown. We do not decide whether it would have been an abuse of discretion to grant the petitions. Compare Herlihy v. Kane, 310 Mass. 457 , 459 (1941), with Hackney v. Butler, 339 Mass. 605 , 609 (1959).

Exceptions overruled.


FOOTNOTES

[Note 1] Lawrence Neil, administrator, vs. Richard H. Dodge & another.