Crowe v. Di Manno, 4916.

Citation225 F.2d 652
Decision Date15 September 1955
Docket NumberNo. 4916.,4916.
PartiesHenry E. CROWE et al., Co-Executors Etc., Defendants, Appellants, v. Clorinda DI MANNO, Plaintiff, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Stanley M. Epstein, Boston, Mass., and Francis J. Maguire, Providence, R. I., appearing specially, Andrew B. Goodspeed and Willard, Petersen, Goodspeed & Cameron, Boston, Mass., on the brief, for appellants.

Walter R. Morris and J. Newton Esdaile, Boston, Mass., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

This is an appeal from a judgment for the plaintiff in an action for personal injuries resulting from a collision between an automobile operated by the plaintiff and a tractor-trailer unit owned by the defendants as co-executors which was being operated at the time of the accident by their servant in the regular course of his employment. The plaintiff is a citizen of Massachusetts and the defendants are citizens of Rhode Island who, as co-executors duly appointed by the Probate Court of the City of Pawtucket, Rhode Island, have since 1947 been carrying on the interstate trucking business of their decedent, Robert A. Watt, formerly a citizen of that state. There is not the slightest doubt that the matter in controversy far exceeds the sum or value of $3,000, exclusive of interest and costs, for the plaintiff's right leg was so badly mangled in the accident that within an hour or two it had to be amputated a little above the knee and a few days later it had to be amputated again just below the hip. A trial by jury lasting twelve days resulted in a verdict for the plaintiff in the amount of $150,000 and this appeal is from the judgment entered on that verdict.

We are confronted at the outset with a question of the defendants-appellants' capacity to be sued in Massachusetts which was raised in this court for the first time by a motion to vacate the judgment below and remand the cause for dismissal. The appellants' argument is that as the executors of a Rhode Island citizen appointed by a Rhode Island probate court they lack capacity to be sued in their fiduciary capacity in Massachusetts. Wherefore they say that since the plaintiff's action was brought against them as co-executors it ought now to be dismissed out of hand even though without objection they appeared and defended the action on the merits in the court below. We do not agree.

It is certainly true that the defendants' authority to administer their decedent's estate derives from their appointment as co-executors by a Rhode Island court, and it is equally true that an executor or administrator has no authority to act as such outside the state wherein he was appointed. But a decedent's estate is not a legal entity. Rights of action against the estates of deceased persons can be asserted only against the individual or individuals administering the estate. The question here is whether this action lies against the co-executors in their fiduciary capacity or lies against them personally.

Counsel agree that Rule 17(b), Fed.Rules Civ.Proc., 28 U.S.C.A., requires that the question of the capacity in which the defendants must be sued in the court below be determined by the law of Massachusetts, and the settled rule in Massachusetts, as in Rhode Island, Parmenter v. Barstow, 1900, 22 R.I. 245, 47 A. 365, 63 L.R.A. 227 and generally elsewhere, is that executors and others in similar positions of trust are liable and must be sued personally, not in their fiduciary capacities, for torts committed in the course of their administration either by themselves or by their agents or servants when acting within the scope of their employment. Shepard v. Creamer, Trustee, 1894, 160 Mass. 496, 36 N. E. 475; Restatement, Trusts § 264. And the fact that defendants are named in the complaint as co-executors doing business etc., is immaterial, for the case cited last above also stands for the proposition that naming a defendant in the complaint or other papers in the case in his fiduciary capacity is merely descriptio personae and may be disregarded as surplusage. Since the plaintiff is a citizen of Massachusetts and the defendants are both citizens of Rhode Island, and since the requisite jurisdictional amount is clearly in controversy, we think there can be no doubt on the score of federal jurisdiction.

We turn now to the merits of this appeal.

The accident occurred at a point on U. S. Route 1, an undivided four-lane highway, near its intersection with Carroll Avenue in the town of Westwood, Massachusetts, at about 4:15 a. m. on November 25, 1952. Both vehicles involved in the accident were traveling on Route 1 in a northerly direction toward Boston. The plaintiff's version of the accident and of the events leading up to it is that she left Pawtucket, Rhode Island, bound for Boston some time after 3:00 o'clock in the morning of the day of the accident driving a sedan with a young man sitting beside her on the front seat. As she was driving north on Route 1 in Westwood she overtook and passed the defendants' tractor-trailer unit somewhere south of the intersection of East Street, which is a short distance south of the Carroll Avenue intersection. She says that she slowed down to about 20 miles per hour for the East Street intersection, passed through it safely, and had just begun to increase her speed again when the car she was driving was struck violently from behind by the front of the defendants' tractor. She says this caused her car to spin to its left out of control and make an approximately 180° turn so that it faced back in the direction from which it had come. While in this position she says that the tractor struck her car again, this time on its left front corner, turning it back in the direction of Boston. This second impact she says threw her against the front door on her side of the car so violently that it flew open and she fell to the road where a dual wheel of the tractor-trailer unit ran over her right leg and crushed it so badly at the knee as almost to tear it from her body.

The defendants' concede the plaintiff's severe injury but their version of the accident is quite different. They introduced evidence tending to show that as their unit approached the intersection of East Street it was in the extreme easterly lane of Route 1 proceeding at a speed somewhat less than 40 miles per hour, and that the car driven by the plaintiff in attempting to pass at a very high rate of speed sideswiped the tractor just back of its left front wheel crumpling the running board on that side, punching a hole in the cab door, and doing other damage in that area. Their driver said that the sedan then went on up the road out of control but was not struck a second time and that as it went up the road the plaintiff fell out, and in some way, he did not profess to say exactly how, received the severe injury of which she complains.

There is evidence to support both versions of the event. Indeed, it is very difficult to say which version is more nearly correct for the damage done to the vehicles involved is not wholly consistent with either. We do not need to analyze the evidence in minute detail for the defendants do not contend that they are entitled to a directed verdict. Their primary contention is that the unfair conduct of the District Judge throughout the trial so seriously prejudiced them in presenting their case to the jury that they were deprived of their right to a fair and impartial trial. The charge is a serious one and has been carefully considered. We regret to say that we find it amply supported.

Both sides were represented at the trial by obviously able and experienced counsel. Nevertheless the District Judge participated very actively in the trial from beginning to end. Indeed, relatively few pages of the nearly 800 printed pages of testimony in the record appendix are without some question to a witness, comment on the evidence, or remark by the court. Standing alone the judge's active participation would not be objectionable. Trial courts traditionally have the power to question witnesses to elicit facts not developed by counsel or to clarify testimony previously given. And in the federal courts a trial judge is not a mere moderator but may if he chooses comment on the weight of the evidence, and express his opinion upon the facts, provided in the first place that he does so fairly, impartially and accurately, and provided in the second place that he makes it clear to the jury that his comments are only advisory, and that all matters of fact are for their determination and theirs alone. Quercia v. United States, 1933, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321.

The prerogative of the trial judge to comment on the evidence has definite boundaries. They are clearly traced in the opinion last cited in 289 U. S. at page 470, 53 S.Ct. at page 699, where Mr. Chief Justice Hughes speaking for a unanimous Court said:

"This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. His privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury `is necessarily and properly of great weight\' and `his lightest word or intimation is received with deference, and may prove controlling.\' This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence `should be so given as not to mislead, and especially that it should not be one-sided\'; that `deductions and theories not warranted by the
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