345 Mass. 798 (1962)
The Honorable Louis Sherburne Cox, an Associate Justice of this court from November 10, 1937, until his retirement on January 12, 1944, died on May 12, 1961. On September 28, 1962, a special sitting of the court was held at Boston, at which there were the following proceedings:
The Attorney General addressed the court as follows:
May it please your Honors: It is my honor and privilege as Attorney General of the Commonwealth to present on behalf of the Bar of the Commonwealth a memorial of the services of the late Louis Sherburne Cox, an Associate Justice of the Supreme Judicial Court.
Louis Sherburne Cox was born in Manchester, New Hampshire, November 22, 1874. He was the son of Charles E. and Evelyn M. (Randall) Cox. His father was active in the business life of Manchester, was councilman and alderman of the city and a member of the New Hampshire State Legislature. He was also Warden for some years of the New Hampshire State Prison.
Justice Cox was educated in the public schools of Manchester. He graduated from Dartmouth College with the degree of Bachelor of Arts in 1896. He received the degree of Bachelor of Laws at Boston University Law School in 1899 and was admitted to the Bar shortly thereafter.
Justice Cox was married in 1902 at Lawrence to Mary I. Fieles, daughter of Kansas M. and Irene (Truell) Fieles, who survives him. They were the parents of two children, Randall T., who is a member of the bar, and Dorothy.
In 1900 he became a member of the law firm of DeCourcy, Coulson and Cox at Lawrence. From 1902 to 1908 he was a member of the Lawrence firm of Sweeney, Dow and Cox, and from 1908 to 1918 of the firm of Sweeney and Cox.
Justice Cox served in the Massachusetts Senate in 1906, as Postmaster of Lawrence from 1906 to 1914 and as District Attorney of the Eastern District from 1916 to 1918.
In March, 1918, he was appointed an Associate Justice of the Superior Court by Governor Samuel W. McCall.
Justice Cox served on the Superior Court until November, 1937, when he was appointed by Governor Charles F. Hurley to the vacancy on this court resulting from the resignation of Justice Edward P. Pierce.
He served as a Justice of this court until his retirement on January 12, 1944, because of ill health. He died on May 12, 1961, at Lawrence, at the age of 86.
The following from an editorial published in one of the Boston newspapers at the time of his appointment to this court testifies to the regard in which he was held by his contemporaries:
"By original endowment and extensive experience Judge Cox is abundantly qualified for his new post. Jurists are themselves shrewdly judged by the bar and the legal profession long ago learned to respect Judge Cox for the fairness with which he did his work in court, for his unselfish devotion to the best interests of the whole court system of the Commonwealth and for his courage, simplicity and ability.
"He has done his work, without posturing ever for public applause, and much more than an average share of the work of the superior court has come to him. By appointment of Chief Justice Hall he served as secretary to the superior court judges at their regular quarterly meetings. As a member of the court house committee, he gave much of his personal time to the arrangements in the annex to the building now under construction. Moreover, during the illness of Chief Justice Hall he had much to do with the general administration of the whole superior court system.
"No jurist in the State has been more interested in the improvement of judicial procedure. What is known as the pre-trial plan which went into effect two years ago is the result of the investigations in other cities made by him and Executive Clerk Edmund S. Phinney. On their recommendation it was adopted here. Judge Cox was interested also in the installation of the jury-pooling plan, which is so well established that provisions for its permanency are included in the new annex.
"For nearly twenty years Judge Cox has served on the bench he will now leave. He is one of the few judges who have presided in the whole range of cases which come before that great trial court. The facts fully justify the welcome with which the public hail his appointment. Progressive and liberal, a student and an administrator, always a forward looking man he has the best of his life ahead of him."
Justice Cox's physical condition after his appointment was such that, as has been stated, he was obliged after six years on this court to seek retirement.
Justice Cox remained active for the better part of the period of retirement and served on the Judicial Council as Chairman of the Judicial Survey Committee, and contributed his services to many groups concerned with the improvement of court procedures and the administration of justice. He was also active in local community affairs.
Justice Cox was interested throughout his life in military matters and served as a Captain in the Massachusetts Volunteer Militia, Colonel in the Massachusetts State Guard and held a commission as Major in the United States Reserves. He was a member of many fraternal orders, fraternities and clubs. Until near the end of his life he gave much of his leisure to the management of a dairy farm he maintained in Methuen.
Justice Cox was one of four brothers, one of whom, Channing H. Cox, served as Governor of the Commonwealth from 1921 to 1925, and later was President of the Old Colony Trust Company of Boston. Another brother, Guy W. Cox, served for many years as President of the John Hancock Mutual Life Insurance Company. His brother Walter was a nationally known trainer and breeder of harness horses.
Justice Cox was a sound and thorough lawyer. He was an able practitioner who served his clients skillfully, and achieved a very substantial position at the Bar. As the holder of executive public office, both by appointment and election, he served the public with ability and fidelity. He gave up the opportunities of private practice and executive office to serve the people of the Commonwealth as a member of this court and of the Superior Court.
His career as a legislator, prosecutor and as a Justice here and in the Superior Court established a model of faithful service for those who will follow him, and was in full accord with the great tradition and high standards of those who preceded him.
He tempered justice with mercy. A man endowed with great intellectual capacity, he was a student of substantive and procedural law who, in serving the public, insisted that the courts' safeguarding of the rights of individuals be the cornerstone of liberty.
It is fitting that we should attest our regard for Justice Cox and honor him, and those like him, for unselfish and unstinted service to the Bench, the Bar, his State and Nation, and his fellow man.
We honor Justice Cox particularly for his service as a member of this court and the Superior Court. His efforts for improvements in procedure and the administration of justice resulted in changes of far-reaching beneficial effect, and his contributions to the legal principles that govern our society, as contained in the Massachusetts Reports, shall serve as a living memorial to his lifetime of devotion to the law.
On behalf of the Bar of the Commonwealth, I respectfully move that this memorial be spread upon the records of the court.
Irving W. Sargent, Esquire, addressed the court as follows:
May it please the court: The twelfth day of May, 1961, closed a record surely never excelled in Essex County and seldom equalled in Massachusetts. I am confident that the widespread scope of activity and public service revealed in this inadequate offering will bear out that estimate.
Louis Sherburne Cox was born November 22, 1874, in Manchester, New Hampshire, in a family modest and highly esteemed in that community. He attended the public schools and graduated in 1896 from Dartmouth College and in 1899 from Boston University Law School. He was one of four brothers, each prominent in his field. The others were Walter, a noted trainer and handler of harness horses, Guy, at the head of one of the largest insurance companies, and Channing, lawyer and Governor of Massachusetts. Channing, the youngest, is the only one still with us.
Admitted to the Massachusetts Bar in 1899, after a short association with a busy Boston office, Louis came to Lawrence in 1900. He promptly became a member of the firm of DeCourcy, Coulson and Cox, at the head of which was Charles A. DeCourcy, later distinguished in the Superior Court and in the Supreme Judicial Court. When Mr. DeCourey left the firm, our Mr. Cox in 1902 became a partner with John P. Sweeney and Harry R. Dow. The new partnership was Sweeney, Dow and Cox. For nearly sixteen years he was active in general practice. In addition he took an important part in local politics. He was at the head of the Republican City Committee before the new charter altered the whole system. He was elected as District Attorney and as a State Senator. With a view to improving the character and tone of Battery C of the Massachusetts Light Artillery in the old Massachusetts Volunteer Militia, a new group of officers were commissioned. Mr. Cox became lieutenant and later captain. Then came the serious strike in the Lawrence mills in Januay, 1912. The great number of strikers and their general attitude and conduct led to extraordinary measures to maintain order and to protect life and property. Battery C was called out together with the local infantry and many from other cities. For several weeks Captain Cox and his men were on the streets. Our thoughts turned back one and fifty years to an April day of shock and indignation when Captain John Pickering of Lawrence, uncle of our Captain Cox, led Company I of the old Sixth Massachusetts through the howling streets of Baltimore.
Captain, District Attorney and Senator, he was for a few years Postmaster. He left the Post Office in 1914 and before 1917 resigned as artilleryman. When the United States entered the first World War he was appointed a Colonel in the newly organized State Guard.
In 1910 he bought a large tract of land in Methuen and soon began business as milk dealer and breeder of high grade Guernsey cattle. As the years passed, he gradually gave up farming and finally in 1953 he sold all the Methuen property except the attractive and comfortable dwelling house that he had built for his own use. He continued to enjoy that summer residence until near the end. He was chosen as president of the Lawrence Community Chest in 1930 and in 1946 as a trustee of the White Fund, a charitable and educational foundation created in 1852. Under the City Charter, as a White Fund trustee, he became ex officio a trustee of the Lawrence Public Library. He was also a director of the local chapter of the American Red Cross and a trustee of the Essex Savings Bank. In 1936 he received the honorary degree of Doctor of Laws from Boston University.
By statute April 17, 1847, an area taken from Andover and Methuen was "incorporated into a Town by the name of Lawrence." In April, 1947, there was a modest celebration of that event with him as chairman of the banquet. In 1853 came the City Charter and in 1953 a centennial banquet with him as toastmaster.
In 1918 he was appointed to the Superior Court. For over nineteen years he gave to the Commonwealth the highest quality of service in that exacting line of duty. There he was dealing not only with problems of law but also with practical questions and with all aspects of human nature. To that task he brought knowledge of the law and of men and things. He had the gift of speed without haste, of firmness with courtesy and patience and of stating all necessary conclusions and directions clearly and tersely. I believe no jury ever left his courtroom without an adequate understanding of the rules to be applied in their discussions.
During his term of service in the Superior Court the pretrial system, for consultation among a judge and all counsel, to ascertain and record agreements, stipulations, admissions and other preliminary details, was adopted under a rule of court. To the establishment of this time-saving system Judge Cox contributed long and exhaustive study.
In November, 1937, he advanced to the Supreme Judicial Court of this Commonwealth to sit with Chief Justice Rugg and Associate Justices Field, Donahue, Lummus, Qua and Dolan. We have his opinions in the books for somewhat more than six years. According to my own search, he wrote 346 opinions and four dissents. I am confident that this computation is sufficiently accurate to indicate commendable industry. His opinions exhibit the same high quality of service as shown in his years in the Superior Court.
As early as 1914 Mr. Justice Cox had shown disturbing evidence of pulmonary trouble. Throughout the rest of his life he was obliged to consider that warning. It is no small part of his record of achievement that he could to the advanced age of 86 years do a large volume of work while safeguarding his strength. Under those conditions, the confinement of the court room and the law library proved unfortunate and January 12, 1944, on his request, by order of the Governor and consent of the Council, he retired from the court.
Let no one, however, believe that he went into retirement. We have recorded that he was selected to take leading parts in the City anniversaries in 1947 and 1953 and to serve in other ways. In addition he was until 1956 a member of the Judicial Council. One of his most valuable contributions came in 1954 when Governor Herter appointed him chairman of the Judicial Survey Commission composed of lawyers and laymen. Much time and close study were devoted to the work. In February, 1956, the Commission reported. Among the valuable results of the survey were an increase in the supervisory power of the Supreme Judicial Court over the lower courts, the creation of the office of Executive Secretary of the Supreme Judicial Court and the extension of full-time judicial service in the District Courts. During the later years Mr. Justice Cox was not in active effort. He was, however, seen almost daily on the streets, unless he was living in his Methuen house, and was always glad to pause and talk in bank or on sidewalk. He attended our Bar meetings until near the close and it was always a glad moment when he rose to delight us with one of his quiet, searching and fraternal addresses. He was always at the service of any lawyer or other citizen who sought advice. The end came very quietly after a few days in hospital. He died on the twelfth day of May, 1961, leaving his widow, a son, Randall T. Cox, Esquire, and a daughter Miss Dorothy Cox.
Perhaps I may be permitted a personal word. While Mr. Justice Cox was in practice I was for nearly thirteen years an associate in his firm and thereafter for nearly two years one of his partners. In subsequent years I worked with him in the Community Chest, the White Fund and the Public Library. To serve under him and with him was an education and a privilege. In those active years of many demands he carried the varying burdens quietly, efficiently and modestly. He could concentrate on one matter as long as possible at the moment, lay it aside completely and turn full attention to a question entirely different. In addition no moment was too crowded to permit a word, or many words, of guidance and assistance.
In memory and in honor of an eminent jurist, useful, devoted citizen, public servant, generous and loyal friend we are today here assembled. In paying to him our tribute of admiration and affection we honor ourselves.
Michael J. Batal, Esquire, addressed the court as follows:
May it please the court: It is my honor and distinction as Vice President of the Essex Bar Association to represent that association at these memorial services to pay tribute to the late Louis S. Cox, a former member of the Essex Bar Association and a retired Justice of this honorable court at the time of his demise. Justice Cox was a distinguished jurist, lawyer, and gentleman, whose career was an inspiration to all of us who follow him at the Bar. Irving W. Sargent, Esquire, a beloved member and dean of the Lawrence Bar, a personal friend of long standing, and associate of the late Justice Cox, has ably presented to this honorable body a resume of his life, associations, and accomplishments. Honors came to him from many individuals and groups in all areas of human endeavor. He was called upon many times for leadership, advice and counsel in times of civic need and crisis. Since his retirement in 1944 from the active duties of the Bench and Bar, he became a true "elder statesman" and a source of private counsel to the members of his profession and to the courts.
Mr. Justice Cox's relationship to this legal community impels me to probe somewhat deeper into his career, in order that we may reflect upon the indelible imprint he has made upon our profession, and upon the administration of justice in this Commonwealth, more specifically, the pretrial conference system originated by him, now in general and widespread use in our courts and other courts throughout the land. We, as lawyers, understand the impact it has had upon our civil proceedings. We realize all the time and effort and expense the system has saved for litigants, and what delays and annoyances it has obliterated. Were it not for the acceptance of this system, I think we will all agree that our court dockets would be hopelessly snarled to the point where civil redress for many would become practically unobtainable. If any single contribution were to be selected as his most priceless legacy to the courts, and to the people, the inauguration of this system would merit our most earnest consideration.
From the pens of the Justices of our Supreme Judicial Court come the rules of human conduct by which our daily lives are governed, and Mr. Justice Cox, during his service on this court has made his philosophy, his training, and his experience felt in many decisions of the court in which he participated; decisions which will guide and rule our lives and the lives of those who follow us in pursuit of government under law for many years to come. His interpretation of our laws will serve as a guidepost for future lawyers in the conduct of their profession.
The Lawrence Bar Association, which honored him as a 50-year jubilarian in 1949, has been indeed fortunate in having the benefit of his advice and counsel, and I do not think any of us shall forget him as he regularly joined us at our activities, and willingly provided us with innumerable bits of legal wisdom, in his captivating and casual manner. To us he served as a sage and capable adviser and philosopher. I think we shall not again, in our lifetimes, know his like.
In 1941, under the auspices of the Bar Association of the City of Boston, Mr. Justice Cox, in delivering an address to a gathering of lawyers on the subject of Applied Ethics, indeed uttered an epitaph which may well be applied to him. At that time he said "The appeal to right conduct is properly addressed to the individual. Our lives here are none too long, and, as a rule, when we go, we leave behind some friends, and some related by blood. It is a good sporting proposition for a man, and equally for a woman, to so live and conduct himself or herself that it can be said at death, as was written of an obscure farmer who died in a hill town of New Hampshire many years ago, 'No shadow of wrong or dishonor ever fell upon him, and he has left as a legacy to posterity that most priceless gift, a good name.' " May this be the epitaph of Mr. Justice Cox.
His career in its self-eloquence needs neither defender nor advocate; he has passed to eternal peace and left to us a legacy and in honoring him consider that here indeed was a life so full, so active, yet so kind and gentle that by honoring him, we indeed do honor to ourselves.
Chief Justice Wilkins responded as follows:
Mr. Attorney General and Brethren of the Bar:
Louis Sherburne Cox will probably be better remembered as a justice of the Superior Court than as a justice of the Supreme Judicial Court. This conclusion naturally follows from his respective lengths of service on the two courts, nineteen on one and six on the other. So reference first is appropriate to his service on the great trial court.
There, he does not seem to have presided in the trial of any case which by name is noteworthy to us now. His distinction in that court is due to his work in the motion session, in the criminal sessions, and in the introduction of progressive time saving reforms. In those days, a judge was usually assigned to the motion session for a whole year, where the annual case load was somewhere between 23,000 and 24,000, and included such matters as demurrers, workmen's compensation cases, and masters' and auditors' reports, all of which are now sent to jury waived sessions. Then it was not uncommon for a lawyer to attend the motion session at 9:30 in the forenoon and still be there when the court closed, often after 4:00 o'clock in the afternoon, and, sometimes it was necessary, even on the most trivial matter, to return the following day before his matter would be reached. Judge Cox and James F. McDermott, the clerk in that session, instituted a preliminary calling of the list, which quickly disposed of such matters which were unopposed. This was a constructive action of the highest order and appreciated equally by judges, lawyers, and clerks.
Another important innovation was initiated by Judge Cox and Edmund S. Phinney, the executive clerk, who after much investigation and travel made recommendations for pre-trial procedure which were adopted, first in Suffolk County and then State wide, and are still in effect. The new procedure achieved the intended purpose of reducing the time between marking a case for trial and the actual trial. The aim also was to abolish the tedious and time consuming call of the list, so that cases might go to trial on or about a known date and problems occasioned by engagements of counsel might be reduced to a minimum. See an article by Judge Cox entitled "The Proposed Pre-Trial Procedure in the Superior Court for Suffolk County to take effect September 1, 1935." Vol. XX Massachusetts Law Quarterly No. 3, page 8, May, 1935.
To extol the accomplishments of Louis S. Cox, the Superior Court judge, is not to derogate from his service as a justice of the Supreme Judicial Court. Here he wrote 346 opinions, his first being Marcus v. Richardson, 299 Mass. 11, and his last Kralik v. LeClair, 315 Mass. 323. Among his decisions there may be cited a few: Commonwealth v. Simpson, 300 Mass. 45, Markey v. Smith, 301 Mass. 64, Bessey v. Salemme, 302 Mass. 188, Dearden v. Hey, 304 Mass. 659, Callahan v. Woburn, 306 Mass. 265, Sperry & Hutchinson Co. v. Director of the Division on the Necessaries Of Life, 307 Mass. 408, Commissioners of Public Works v. Cities Service Oil Co. 308 Mass. 349, Ring v. Woburn, 311 Mass 679, Gorman v. Peabody, 312 Mass. 560.