Barney v. Magenis

• Decision Date: 18 April 1922
• Parties: BARNEY v. MAGENIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 268

135 N.E. 142

BARNEY

v.MAGENIS.

Supreme Judicial Court of Massachusetts, Suffolk.

April 18, 1922.

Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.

Action by Albertine L. Barney, administratrix of Willis O. Barney, against Mary A. Magenis. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

The action was one of tort to recover for personal injuries sustained by plaintiff's intestate and for his death, alleged to have been caused by reason of such intestate being run down by an automobile operated by defendant's servant or agent. Defendant moved for a directed verdict on the grounds that on the evidence and pleadings plaintiff was not entitled to recover, that defendant was not negligent, and that no negligence of any servant or agent of the defendant engaged in her business caused either the death or conscious suffering of the intestate. The motion was denied and the jury returned a verdict of $5,000 on the first count, and $5,500 on the second count. The exceptions were to the admission and exclusion of evidence, the denial of a directed verdict, and the giving and refusal of instructions. The court's charge respecting mental suffering was as follows:

‘If it is your conclusion that a case has been made out in behalf of the plaintiff, then there is a right to damages for the conscious suffering of Dr. Barney in the 11 days that he lived after the accident, and that includes both physical pain or hurt that was felt by the injuries to the body, and it also includes mental solicitude, anxiety or anguish, that were in your judgment suffered by the man during the 11 days that he lived.

‘Physical pain is hurt to the body; the suffering that is endured by reason of bodily injury. The law recognizes as a legitimate subject of recovery the anguish of mind that a man may go through, accompanying an injury; solicitude; anxiety as to whether he will recover; and you will be mindful of the situation that the case presents. The feelings, mental in their character, apart from the bodily hurt; thoughts for friends, immediate relatives, arising from the feeling that life may come to an end, are matters for your consideration, and for such allowance by way of money compensation as you feel should be given. It is compensation, gentlemen, that you award.’Choate, Hall & Stewart and Joseph Wentworth, all of Boston, for plaintiff.

Joseph A. Dennison and Robert Gallagher, both of Boston, for defendant.

DE COURCY, J.

The plaintiff has a verdict in an action brought to recover damages for the conscious suffering and death of her intestate, Dr. Willis O. Barney. It is admitted in the defendant's bill of exceptions that there was evidence of the intestate's due care, and (independently of any evidence excepted to) that his injury and death were due to the negligence of Herbert H. Shuman in operating an automobile owned by the defendant.

[1][2] 1. It is argued that the motion for a directed verdit should have been granted, on the ground that the evidence did not warrant a finding that Shuman was engaged in the business of the defendant at the time of the accident. It was undisputed that he was in her general employ, and that on the morning of the accident he left her home at Dedham with instructions to go to three florists in Boston and get flowers and take them to a lawn party in Newton. The route he should take was not prescribed. The accident happened on Washington street, near the corner of Bennett street. Shuman was called by the plaintiff and testified that he drove into Boston by way of Beacon street; that he went from Dartmouth street to Tremont, and turned off Tremont at Union Park street, where he had a room at No. 25; that there he got his mail, and later changed his linen (which he had obtained elsewhere in the meantime). He said that he ten returned to Tremont street, went thence by way of Broadway to Washington street, and was coming toward the centre of Boston when he reached Bennett street, where the accident occurred. He further said that he intended to leave Washington street at Summer street, to go to Long Wharf. In short, his claim was that he had deviated from his route for purposes of his own. It is evident from his testimony that Shuman as a witness was hostile to the plaintiff. In view of that, and his final admission that he lied to the highway commission officer, the jury might well scrutinize a story which could easily by invented by a culpable chauffeur, and prove difficult to contradict. It is significant that the accident happened at a place which is on the direct route between the defendant's home in Dedham and the flower shops to which Shuman was instructed to go. Assuming that he used the route to Boston by way of Beacon street, when he deviated therefrom to go to his room on Union Park street, he was more than a mile from the florists; while he...