Meaney v. Kehoe

Holmes, C. J. These are actions for injuries to person and property caused by a collision between two wagons. According to the defendant’s testimony the plaintiffs, who were driving a fast horse returning from Revere Beach, and who admitted that they had been racing, came down upon him at a wicked rate of speed and ran into him without his fault, as he was driving slowly homeward, from his place of business, — a liquor saloon. The plaintiffs on the other hand testified that they were driving slowly when they saw the defendant coming toward them at a gallop, and that thereupon they drove their wagon as close to their side of the way as they could but did not succeed in escaping the defendant. The case was as clearly and solely a case for the jury as it is possible to imagine, and we are at a loss to conceive why it should have been brought here. When the evidence was all in, the defendant objected that the plaintiffs could not recover under the declaration unless they were the sole owners of the horse and vehicle. It seems that the two plaintiffs owned the horse and wagon in common, but each declared separately and averred an injury to the plaintiff’s person and to his horse and carriage. If the nonjoinder of the other owner had been pleaded in abatement, it would have presented an amusing dilemma, as the injuries to the persons of the plaintiffs were torts distinct from each other and yet not to be separated from whatever claim they respectively had for injury to property. Braithwaite v. Hall, 168 Mass. 38. But when the evidence was in it was too late to take that objection, if there is anything in it. Sherman v. Fall River Iron Works Co. 5 Allen, 213. The failure to prove either plaintiff’s sole ownership was not a fatal variance under a general allegation of injury to the plaintiff’s property. Without going into the learning of the discussions concerning “ sua ” in the early writs, it is accurate enough for practical purposes to say that nowadays and here the words “ the plaintiff’s carriage ” and “ the plaintiff’s horse ” are satisfied by proof of any interest sufficient to support an action. 1 Chitty Pl. (7th ed.) 394. See Pub. Sts. c. 214, § 14; R. L. c. 219, § 9. Exceptions overruled.