Berry v. Stone

• Decision Date: 22 April 1963
• Citation: 189 N.E.2d 852,345 Mass. 752
• Parties: Evelyn BERRY v. David B. STONE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 852

189 N.E.2d 852

345 Mass. 752

Evelyn BERRY v. David B. STONE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1963.

Supplemental Brief Filed April 10, 1963.

Decided April 22, 1963.

Thomas D. Burns, Boston (Frank Shapiro, Boston, with him), for plaintiff.

Walter F. Henneberry, Boston (John J. C. Herlihy, Boston, with him), for defendants.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

WHITTEMORE, Justice.

These are the defendants' exceptions in an action of tort to the denial of a motion for a directed verdict, based on the pleadings and the evidence, to rulings on evidence, and to the plaintiff's argument and the charge. The action was brought for injuries sustained by the plaintiff on April 23, 1958, in the house of the defendants where she was temporarily employed to take care of the defendants' new born baby and three older children.

The plaintiff testified, inter alia, as follows: Six year old David, on April 23, threw gravel on the playroom floor as he had done before; the plaintiff had cleaned it up on the previous occasions; this time she spoke of the resulting 'dangerous condition' to the defendant Sara C. Stone (hereinafter sometimes referred to as the defendant); the defendant said she would see that David cleaned up the gravel; about five minutes later the defendant came into the kitchen and said she was going out to visit; the plaintiff went upstairs with laundry and on the way saw the gravel; after putting the laundry away she heard the baby cry and she came down stairs hurriedly and was running across the playroom floor when her heel struck the pebbles and crushed stone and she fell; David, having cleaned up some of the gravel, went out of the house at about the time when the defendant left; the plaintiff's duties included picketing up after the children; the defendant, when she learned of the injuries, called to attend the plaintiff, Dr. Barton Smith, whom the plaintiff had not seen before; later the plaintiff consulted her personal physician, Dr. Lawrence Kvitka.

There was no other testimony as to how the plaintiff fell or the state of the playroom floor.

The plaintiff called Dr. Kvitka who testified to her injuries, care, and treatment. Neither side called Dr. Smith. The defendant testified that Dr. Smith had been and still was her family doctor, and that he was still practising in Dedham; also that on April 25, 1958, she took the plaintiff to the office of Dedham Medical Associates for X-rays.

1. The defendants' contention is that the case as it went to the jury ¹ (a first count in negligence having been discontinued) was for breach of an assumed obligation to provide workmen's compensation benefits and that there is in law no such obligation. They contend that, in the light of the discontinuance of count 1, the declaration cannot rightly be construed to refer to negligence in respect of the condition of the playroom floor.

The charge shows that the trial judge construed the declaration as based on such negligence, and deemed its reference to G.L. c. 152 to be for the purpose of calling attention to the circumstance that, although under G.L. c. 152, § 1(4), the provisions of the chapter were elective as to the defendants, §§ 66 and 67 had deprived the defendants of the defences of contributory negligence, negligence of a fellow employee and assumption of risk.

The plaintiff contends that the issue of negligence was fully tried and that an amendment of the declaration should be allowed as a basis for overruling the exceptions. See Coburn v. Moore, 320 Mass. 116, 124, 68 N.E.2d 5 (rescript permitted amendment in the trial court). See also cases cited in Sandler v. Elliott, 335 Mass. 576, 589, 141 N.E.2d 367, as to power to amend in this court.

The declaration fails to state either 'concisely and with substantial certainty' or in any way at all any 'substantive facts necessary to constitute the cause of action' for negligence. G.L. c. 231, § 7, Second. In the circumstances of the discontinuance of the count for negligence and the consequent ambiguity of the case presented by the pleadings, as well as our views on the points discussed below, we prefer to follow Richards v. New York, N. H. & H. R. R., 328 Mass. 204, 206, 102 N.E.2d 769, and Kabatchnick v. Hanover-Elm Bldg. Corp., 331 Mass. 366, 374, 119 N.E.2d 169, and sustain the exceptions without ordering judgment for the female defendant. This will permit a new trial against her after such amendment as the Superior Court may allow.

Judgment, however, is to be entered for the defendant David B. Stone. Although it was agreed that both defendants were in control of the premises, there is no evidence which tends in any way to suggest a breach by him of any duty to the plaintiff.

2. In argument the plaintiff's counsel said, 'But the proof of this case is this, who was the first doctor who examined her? What connection did he have with the defendants? I asked Mrs. Stone, 'Is he available?' 'Yes, he is.' 'Is he still your doctor?' 'Yes." The defendants' counsel objected that there was 'no such testimony about availability' and to any comment about the doctor's absence. The plaintiff's counsel asked, 'May I press the argument' and the judge said, 'You may proceed. I will instruct the jury.' The defendants excepted. The plaintiff's counsel then said, 'Let me put it to you, did Mrs. Stone say that Dr. Smith was her doctor? Did I ask her if he was still practicing in Dedham? Did she say Yes? Perhaps you wonder, as well you might, and I argue to you it is proper for me to comment, that, knowing the availability of that doctor and having it proved to you, why didn't they bring him in?' The defendants objected and excepted. The plaintiff's counsel continued.' 'I wonder why they didn't bring him in, if this woman didn't fall down, if they didn't tell him that she slipped on the pea stone, if she didn't have a head injury and she didn't have a back injury.'

The judge in his charge instructed that 'if a witness is shown * * * to be available * * * and does not appear * * * it is proper for counsel to comment * * * but there must be a showing that the witness was available * * *. You...