Gordon v. Cross & Roberts, Inc.

Lummus, J.

One Nelson, while operating an automobile in the course of his employment as a servant of the defendant, negligently caused the death of the plaintiffs’ intestate, a pedestrian. The plaintiffs brought two actions for the death, under G. L. (Ter. Ed.) c. 229, § 5, one against Nelson and the other against the defendant. At the trial of those actions together, the defendant moved at the close of the evidence that the plaintiffs be required to elect between the actions. To the denial of this motion the defendant excepted. The defendant then moved for a directed verdict in its favor, ■ evidently on the ground that the actions could not be prosecuted together, and excepted to the denial of this motion also. The jury awarded the plaintiffs $500 damages for death in each action, and the defendant excepted “to the jury’s verdict against it.”

There was no joint tort, but the actual fault was that of the servant alone. For that reason, if no other existed, a single action against master and servant would not lie. Popkin v. Goldman, 266 Mass. 531, 536 . See also Hewett v. Swift, 3 Allen, 420 , 424, 425; Gavin v. Kluge, 275 Mass. 372, 379 . Besides, in death cases no single action against joint wrongdoers can be maintained. Brown v. Thayer, 212 Mass. 392, 399, 400 . Since there was but one wrong, there is force in the argument that only one penalty should be collected, and that ultimately the burden should fall upon the servant. See White v. Phillipston, 10 Met. 108 , 111, explained in Moynihan v. Todd, 188 Mass. 301, 303 ; Porter v. Sorell, 280 Mass. 457 . That need not be decided now. Both master and servant, however, were liable to the plaintiffs in separate actions. The judge was not bound to compel the plaintiffs to elect at the trial (see Bruce v. Johnson, 277 Mass. 273, *364 275 ), but might permit them to pursue both master and servant until satisfaction was obtained. See Pion v. Caron, 237 Mass. 107, 111, 112 .

Exceptions overruled.