Barletta v. New York, N.H.&H.R. Co.

• Decision Date: 25 May 1937
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BARLETTA v. NEW YORK, N. H. & H. R. CO.

297 Mass. 275

8 N.E.2d 800

BARLETTA

v.NEW YORK, N. H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1937.

Exceptions from Superior Court, Suffolk County; Beaudreau, Judge.

Action of tort by Alfonso Barletta, administrator, against the New York, New Haven & Hartford Railroad Company. Judgment for defendant in superior court, after verdict for plaintiff for $3,000, and plaintiff brings exceptions.

Exceptions overruled.W. P. Murray, M. Colten, and G. V. Slade, all of Boston, for plaintiff.

J. Wentworth and J. M. Hall, both of Boston, for defendant.

LUMMUS, Justice.

This action for personal injuries was begun on February 9, 1932, by John Belmonte, and after his death on January 14, 1935, was prosecuted by the administrator of his estate. Belmonte was a servant of the defendant, which was not insured under the workmen's compensation act. The jury returned a verdict for the plaintiff. Under leave reserved (G.L. [Ter.Ed.] c. 231, § 120), the judge entered a verdict for the defendant. Exceptions of the plaintiff bring the case here.

Belmonte could speak both Italian and English, but could not read. He was injured on June 16, 1926. On July 16, 1926, he dictated to his niece a letter in English, asking for a settlement. She wrote it out and sent it to the claim department of the defendant. A claim agent, named Thomas F. Dolan, visited him, and in consequence Belmonte signed the following document: ‘Advance Payment. East Boston, Mass., August 17, 1926. Received of the New York, New Haven and Hartford Railroad Company, through G. S. Hamlin, Claim Agent, the sum of $141.36 as an advance payment in connection with the settlement of my claim for personal injuries sustained at Fall River June 16, 1926. It is fully understood and agreed that the railroad company makes this advance payment to relieve my immediate needs and that when I settle my claim later on the amount now received by me will be deducted from the total payment due me which will be based upon full time and reasonable medical expenses.’ This was witnessed by Dolan; by Dr. Joseph St. Angelo, the attending physician employed by Belmonte; and by Lucy Cristallo, a niece of Belmonte.

On September 9, 1926, Belmonte was examined by the late Dr. Francis D. Donoghue, who was apparently employed by the defendant, although Belmonte also expressed confidence in him. Dr. Donoghue reported that Belmonte, who was about forty-three years old, was ‘suffering from some deficiency of the glandular systems which makes him of the obese type,’ that he ‘has gone soft from loafing and has now reached the stage where he ought to be encouraged to work,’ and that ‘it may be fair to call him totally disabled to [for?] the present and allow him four to six weeks more to work in on the job.’ A claim agent named Frank D. Giacomo, after some preliminary discussion with Belmonte, made an appointment through Dr. St. Angelo to see Belmonte on September 15, 1926. On that day Giacomo read to Belmonte the report made by Dr. Donoghue. The amount of the proposed settlement was discussed. Giacomo then made out a release in full of all demands, stating the consideration as $666.36, and read the release to Belmonte in English. Belmonte, being asked, said that he could not read. Giacomo handed the release to Dr. St. Angelo, asking him to translate it into Italian for Belmonte. The doctor complied. Then Belmonte executed the release, with his nieces Mary J. Ventre and Lucy Cristallo, Dr. St. Angelo, and Giacomo as witnesses. The consideration expressed in the release was paid.

The two nieces of Belmonte who witnessed the release testified that when they signed the paper it did not contain the words ‘This release was read to me and I fully understand it,’ appearing above the signature of Belmonte. The claim agent, Giacomo, testified that he inserted the words in question after discovering that Belmonte could not read and before Belmonte signed. The signature of Belmonte to a document showing on its face no marks of alteration was prima facie evidence that the entire document was his act. Wilde v. Armsby, 6 Cush. 314;Simpson v. Davis, 119 Mass. 269, 20 Am.Rep. 324;George N. Pierce Co. v. Casler, 194 Mass. 423, 426, 427, 80 N.E. 494. We pass by the question whether the alteration charged was material. Thorpe v. White, 188 Mass. 333, 334, 74 N.E. 592. It did not affect the construction or operation of the release. The decisive point is that the testimony of the nieces, if taken as true, did not show that the alteration charged was not...