Barry v. Keeler
| Decision Date | 04 December 1947 |
| Citation | 322 Mass. 114,76 N.E.2d 158 |
| Parties | DANIEL A. BARRY v. EDWARD KEELER (and nine companion cases [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 7, 1947.
Present: QUA, C.
J., DOLAN, WILKINS & SPALDING, JJ.
Soldiers' and Sailors' Civil Relief Act. Motor Vehicle, Operation Interstate commerce, Lease of motor vehicle. Interstate Commerce. Carrier, Motor truck. Law of the Case. Negligence Independent contractor. Indemnity. Damages, For tort. Evidence, Judicial notice. Practice, Civil, Judicial discretion, Continuance, Trial of actions together, New trial, Judgment ordered by Supreme Judicial Court.
Determination of the question, whether or not, under the Federal soldiers' and sailors' civil relief act of 1940, a stay should be granted to a defendant in an action who is in military service, is to be made by the trial judge in the exercise of sound judicial discretion. Denial of a motion by a defendant in military service, founded on the
Federal soldiers' and sailors' civil relief act of 1940, to stay prosecution of actions against him for causing a death and conscious suffering, personal injury and property damage arising from his alleged negligence in operation of a motor tractor-trailer resulting in a collision with an automobile did not disclose an abuse of judicial discretion by the trial judge where the parties agreed that a statement, attached to the motion, of what the defendant would testify if present might be read to the jury at a trial of the actions; it appeared that the statement strongly tended to show negligence of the defendant in driving on a slippery road leading to an intersection at a speed which made it impossible to stop in time to avoid the collision, in not seeing the automobile until he was close upon it, and in going through a red traffic light, and did not show contributory negligence on the part of anyone; and the trial judge found that the defendant "would not be prejudiced in having the cases tried on the statement in his absence."
A defendant not in military service, in an action arising from a collision caused by negligence of the operator of a motor vehicle, had no standing under the Federal soldiers' and sailors' civil relief act of 1940 to seek a stay of the action where the negligent operator was in military service, it was alleged that the defendant was responsible for his conduct, and there was to be tried with such action an action against the negligent operator; whether the defendant was entitled to a continuance on such grounds was a matter to be determined by the trial judge in the exercise of sound judicial discretion.
At the trial together of actions by a person injured through negligence of the operator of a motor tractor-trailer unit, one against the owner of the trailer and the other against the owner of the tractor, which was leased to the owner of the trailer, where there was evidence warranting a finding against the owner of the trailer on the ground that in the circumstances his duty to the public arising from his use as a unit of the tractor and trailer as a common carrier under a governmental license was nondelegable, and also a finding against the owner of the tractor on the ground that he was the employer of the operator, there was no error in refusing a request of the owner of the tractor for an instruction to the jury in substance that, if they found such use of the tractor-trailer unit by the owner of the trailer, they should find him liable for the consequences of negligence of the operator and should find the owner of the tractor not liable; nor was there error prejudicial to the owner of the tractor in a failure of the judge to instruct the jury as to such possible liability of the owner of the trailer.
No error prejudicial to the defendant appeared in an instruction to the jury, at the trial of an action against the owner of a motor tractor for injuries caused by negligence of its operator in interstate commerce, that they could disregard references in the evidence to the regulations of the interstate commerce commission since there was no evidence as to what the regulations were, where no such regulations were brought to the attention of the trial court or of this court and nothing contained in the defendant's brief disclosed what bearing, if any, such regulations would have on the rights of the parties.
The defendants in actions against the owner and the operator of a motor tractor, which was a part of a tractor-trailer unit, for injuries sustained in a collision caused by negligence of the operator, which were tried with actions against the owner of the trailer, were not harmed by the granting of motions setting aside verdicts for the defendant in the actions against the owner of the trailer and granting the plaintiffs in those actions a new trial, where the evidence at the first trial had warranted findings that the liabilities of the respective defendants were not mutually exclusive and that all were liable.
A trial judge may grant a new trial of an action on the ground that a decisive ruling made by him at the original trial, although not excepted to, was erroneous.
One engaged in transportation of freight in interstate commerce in a motor tractor-trailer unit under franchises granted by the interstate commerce commission and by the department of public utilities might be found liable for injuries sustained in a collision caused by negligence of the operator of the unit although such operator was under the sole direction and control of the owner of the tractor and the tractor had been leased to the carrier by its owner as an independent contractor.
At the trial of an action against an interstate carrier of freight by a motor tractor-trailer unit, for conscious suffering and death sustained in a collision caused by negligence of the operator of the unit, it was not error to exclude evidence of verdicts returned for the same causes in actions by the same plaintiff previously tried against the operator and his employer, who was the owner of the tractor and was an independent contractor with the carrier, nor to permit the jury to assess damages in excess of the amount of such verdicts, where it appeared that, due to the pendency of exceptions, judgments in such other actions had not been entered: the trial judge was required to deal with the situation as it existed at the time he made his rulings; but this court, having determined that the exceptions pending in such other actions must be overruled and that judgments must be entered on the verdicts returned therein, ordered under G. L. (Ter. Ed.) c. 231,
Section 124, that judgment be entered in the action against the carrier in the same amount (except for such differences as there might be in the matter of interest and costs) as the amount of the other judgments.
TEN ACTIONS OF TORT. Writs in all the actions were in the Municipal Court of the City of Boston dated in the year 1942, those in the three Barry actions being dated March 27 and April 28, those in the three Gruberski, administratrix, actions being dated April 9, 13, and 17, those in the two McDonald actions being dated April 16, and those in the two Grison actions being dated December 10.
Fifteen actions had been brought relating to the same collision between motor vehicles, three each by Daniel A. Barry, by Philip F. McDonald, by William Dunn, by Julia Gruberski, administratrix of the estate of Michael Gruberski, and by Gabriel A. Grison, each plaintiff bringing separate actions against Patrick R. Hamilton, Edward Keeler and Shawmut Transportation Co. Inc. Barry sought recovery for personal injuries and property damage; McDonald, Grison and Dunn for personal injuries; and Gruberski, administratrix, for conscious suffering and death of her intestate. All these actions were removed to the Superior Court.
These actions were heard together in the pre-trial session by Brogna, J. Exceptions of Hamilton and Keeler to rulings there made are dealt with on pages 119 to 121 of the opinion, and exceptions saved by Shawmut Transportation Co. Inc. to rulings there made are dealt with on page 125.
All the defendants conceded that there was "considerable testimony" from which the jury could find negligence of the defendant Hamilton and due care of Gruberski, Barry, McDonald, Grison and Dunn.
Pursuant to orders made in the pre-trial session, the fifteen actions were tried together before Broadhurst, J. The defendants Hamilton and Keeler prosecuted exceptions saved at that trial. Those exceptions are dealt with on pages 121 to 124 of the opinion. In the Barry actions, verdicts were returned for the plaintiff against Hamilton and Keeler, respectively, in the aggregate amount of $1,915. In the Gruberski actions, verdicts were returned against Hamilton and Keeler, respectively, in the sum of $5,625 for causing the death of the plaintiff's intestate and the sum of $1,000 for his conscious suffering. In the McDonald actions, verdicts were returned against Hamilton and Keeler, respectively, in the sum of $1,350. In the Grison actions verdicts were returned against Hamilton and Keeler, respectively, in the sum of $800. There also were verdicts in favor of Dunn against Hamilton and Keeler, respectively. In all the actions against Shawmut Transportation Co. Inc., verdicts were returned for the defendant.
All the plaintiffs moved for a new trial in their actions against Shawmut Transportation Co. Inc. The motions of McDonald and Grison were denied, and no exceptions to their denial were presented on the record. The motions of Barry, Gruberski, administratrix, and Dunn were allowed, subject to exceptions by the corporation. These exceptions in the Barry and Gruberski actions are dealt with on pages 124, 125-126 of the opinion.
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