Barry v. Keeler

• Decision Date: 04 December 1947
• Citation: 76 N.E.2d 158,322 Mass. 114
• Parties: BARRY v. KEELER and nine other cases.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 114

76 N.E.2d 158

BARRY

v.KEELER and nine other cases.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 4, 1947.

Exceptions from Superior Court, Suffolk County; Broadhurst, Judge; second trial of certain actions, Collins, Judge.

Actions by Daniel A. Barry against Edward Keeler, by Daniel A. Barry against Patrick R. Hamilton, by Philip F. McDonald against Edward Keeler, by Philip F. McDonald against Patrick R. Hamilton, by Julia Gruberski, administratrix, against Edward Keeler, by Julia Gruberski, administratrix, against Patrick R. Hamilton, by Gabriel. A. Grison against Edward Keeler, by Gabriel A. Grison against Patrick R. Hamilton, by Daniel A. Barry against the Shawmut Transportation Company, Inc., and by Julia Gruberski, administratrix, against Shawmut Transportation Company, for damages arising out of a collision between an automobile and a tractor-trailer. Verdicts for plaintiffs against the named defendants, and defendants bring exceptions.

Exceptions overruled.

Before QUA, C. J., and DOLAN, WILKINS, and SPALDING, JJ.

H. C. Thompson, J. Finks, A. Sigel, and P. F. McMahon, all of Boston, for the several plaintiffs.

R. B. Snow and A. F. Bickford, both of Boston, for defendants Keeler and Hamilton.

H. S. Avery and M. T. Prendergast, both of Boston, for defendant Shawmut Transp. Co., Inc.

SPALDING, Justice.

These actions of tort arise out of a collision between an automobile driven by the plaintiff Barry and a so called tractor-trailer unit operated by the defendant Hamilton. The tractor of this unit was owned by the defendant Keeler and the trailer was owned by the defendant Shawmut Transportation Co. Inc. Actions were brought by Barry and three passengers (Dunn,¹ Grison and McDonald) and by the plaintiff Gruberski as administratrix of the estate of her husband (also a passenger) against Hamilton, Keeler and the Shawmut Transportation Co. Inc., hereinafter called Shawmut. The jury returned verdicts for the plaintiffs in all the cases against the defendants Hamilton and Keeler and for the defendant in all the cases brought against Shawmut. Numerous motions for new trials were presented which were disposed of as indicated in the footnote.² The cases come here on exceptions of all of the defendants. The defendants concede that there was evidence which would have warranted the jury in finding negligence on the part of the defendant Hamilton in the operation of the tractor-trailer unit. They also concede that the evidence warranted a finding that all of the occupants of the automobile were in the exercise of due care.

I. Exceptions of the defendants Hamilton and Keeler.

1. When the cases came on for pre-trial hearing on April 21, 1944, counsel representing Hamilton and Keeler pressed a motion on behalf of these defendants that the trial of the cases be stayed because Hamilton was in military service and was outside of the country. It does not appear that the facts on which the motion was grounded were challenged. This motion was supported by affidavit of counsel to which was attached a statement of what Hamilton would testify to if present. All counsel agreed that this statement might be read to the jury when the cases were tried. Finding that the defendant Hamilton ‘would not be prejudiced in having the cases tried on the statement in his absence,’ the pre-trial judge, subject to the exceptions of Hamilton and Keeler, denied the motion and ordered the cases to stand for trial on June 5, 1944.³

The Soldiers' and Sailors' Civil Relief Act of 1940, Act of October 17, 1940, c. 888, § 201, 54 U.S.Sts. at Large, 1181, 50 U.S.C.A. Appendix, § 521, reads: ‘At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service’ (emphasis supplied). Whether or not Hamilton's military service materially affected his ability to conduct his defense was a question to be decided by the trial judge in the exercise of his discretion. Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587. But this discretion is not unlimited, and where a stay has been denied under circumstances showing an abuse of discretion the decision may be reversed on appeal. In re Adoption of a Minor, 78 U.S.App.D.C. 48, 136 F.2d 790;Esposito v. Schille, 131 Conn. 449, 40 A.2d 745;Smith v. Sanders, 293 Ky. 6, 7, 8, 168 S.W.2d 359;Burke v. Hyde Corp., Tex.Civ.App., 173 S.W.2d 364. In construing the provision of the act under consideration it was said in Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 1231, 87 L.Ed. 1587, ‘The Soldiers' and Sailors' Civil Relief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation. The discretion that is vested in trial courts to that end is not to be withheld on nice calculations as to whether prejudice may result from absence, or absence result from the service. Absence when one's rights or liabilities are being adjudged is usually prima facie prejudicial.’

Viewing the action of the pre-trial judge in the light of these principles, we think that there was no abuse of discretion. The statement of Hamilton, which counsel had agreed might be read at the trial, strongly tended to show negligence on his part in driving on a slippery road leading to an intersection as a speed which made it impossible for him to stop in time to avoid the collision, in not seeing Barry until he was close upon him, and in going through a red light. The statement failed to show any negligence on the part of the plaintiffs and contained nothing which bore on damages or any other issue in the case. The judge might well have concluded that Hamilton's presence in court and the testimony that he presumably would give would not have aided his case materially. In other words, the judge was warranted in concluding that Hamilton's ability to conduct his defence was ‘not materially affected by reason of his military service.’ See Gross v. Williams, 8 Cir., 149 F.2d 84;Johnson v. Johnson, 59 Cal.App.2d 375, 139 P.2d 33. The subsequent course of the trial tends to confirm the conclusion of the judge.

The right of Keeler to a continuance must be considered without reference to the provision of the soldiers' and sailors' civil relief act discussed above, for that applies only in an ‘action or proceeding * * * in which a person in military service is involved, either as plaintiff or defendant.’ See Royster v. Lederle, 6 Cir., 128 F.2d 197, 199;Johnson v. Johnson, 59 Cal.App.2d 375, 382, 383, 139 P.2d 33. Keeler was not in the military service at the time of the trial. Whether he was entitled to a continuance was a matter for the judge to determine in the exercise of sound judicial discretion. Noble v. Mead-Morrison Manuf. Co., 237 Mass. 5, 16, 129 N.E. 669;Knapp v. Graham, 320 Mass. 50, 55, 67 N.E.2d 841. We cannot say that the discretion was abused.

2. The defendant Keeler argues that portions of the judge's charge were erroneous and that the judge erred in failing to grant requests numbered 3, 4, 6 and 8. Before discussing them it will be necessary to set forth in greater detail some of the facts which could have been found with respect to the ownership and operation of the tractor and trailer comprising the truck involved in the accident. The tractor, which was driven by the defendant Hamilton, was owned by the defendant Keeler and was registered in his name; the trailer was owned by Shawmut. Shawmut was engaged in transporting freight between Boston and New York. Prior to the accident Keeler had leased the tractor to Shawmut under a lease which recited that while the tractor was ‘under the direction and control of * * * [Shawmut] it shall be operated only by the lessor while in the employ of * * * [Shawmut] as a driver or such other employee of * * * [Shawmut] that may be mutually agreed upon.’ Keeler was paid about $60 by Shawmut for the use of his tractor for each trip between New York and Boston. He bought the gasoline and oil for the truck and paid Hamilton's wages. Keeler hired Hamilton and considered that ‘he was the one to fire him.’ Keeler carried insurance, at least for an amount required under a Massachusetts compulsory policy, covering liability for personal injuries and death arising out of the use of the tractor. Under the lease with Shawmut, Keeler was required to maintain the tractor in good working order. The destination of the truck was determined by Shawmut's dispatcher. Once the truck left Shawmut's freight terminal in Brooklyn Keeler ‘would have no say over the direction of the route which it took.’ Shawmut had an interstate commerce commission franchise to act as a common carrier, and on the night of the accident the freight on the truck ‘was carried in the usual business of * * * [Shawmut] as a common carrier under * * * [its] I. C. C. franchise and under the department of public utilities plates.'⁴

Requests numbered 3, 4 and 6 in effect asked for instructions that if Shawmut at the time of the accident had exclusive control over Hamilton's conduct Keeler would not be liable. An examination of the charge reveals that these were given in substance. The judge was not required to employ the precise language of the requests. Reidy v. Crompton & Knowles Looms Works, 318 Mass. 135, 141, 60 N.E.2d 589.

The eighth request was as follows: ‘If you find that the tractor was under lease to the Shawmut Transportation Co. and was being used by it in its usual business as a common carrier under a license or...