319 Mass. 372 | Mass. | 1946
This case is here on the plaintiff’s appeal from an order sustaining a demurrer to her amended declaration.
The first count of the declaration simply alleges that on March 15, 1942, while the plaintiff was lawfully riding in a motor vehicle on a named public highway she sustained personal injuries owing to the negligence of the defendant. To this is added an allegation of damages from physical and mental suffering, expense, and loss of working ability, and a statement that the action arises “out of the operation of
The demurrer is "to the plaintiff’s amended declaration” and for causes of demurrer sets up that the first and second counts are “insufficient in law,” and that the second count does not set forth a legal cause of action because the "manufacturer” is not liable for negligence in "manufacture” to third persons who have no contractual relations with it.
It is plain that under our recent decision in Carter v. Yardley & Co. Ltd. ante, 92, decided since the ruling of the Superior Court in this case, the second count states a good cause of action. It would be useless to add anything now to what was said in the Carter case.
And since the demurrer is by its express terms addressed to the declaration as a whole, it must be overruled if either count is good. Brown v. Castles, 11 Cush. 348. Sears v. Trowbridge, 15 Gray, 184. Vitagraph, Inc. v. Park Theatre Co. of Boston, 249 Mass. 25, 31. National House Furnishing Co. v. Anderson, 316 Mass. 301, 303. Brown v. Duchesne, 2 Curt. C. C. 97. Backus v. Richardson, 5 Johns. 476. Compare May v. Western Union Telegraph Co. 112 Mass. 90, 94. Therefore we need not determine whether a demurrer separately addressed to the first count should have
The order sustaining the demurrer is reversed, and an order is to be entered overruling the demurrer.
So ordered.