Bourget v. Holmes

• Decision Date: 01 April 1937
• Citation: 8 N.E.2d 356,297 Mass. 25
• Parties: BOURGET v. HOLMES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 25

8 N.E.2d 356

BOURGET

v.HOLMES et al.

Supreme Judicial Court of Massachusetts, Worcester.

April 1, 1937.

Action of tort for personal injuries by Armand L. Bourget against Albin R. Holmes and trustee. From an adverse order and findings, plaintiff appeals.

Appeal dismissed.Appeal from Superior Court, Worcester County; Whiting, Judge.

Nicholas Fusaro and Nunziato Fusaro, of Worcester, for appellant.

H. Seder, of Worcester, for appellee.

RUGG, Chief Justice.

This is an action of tort. It is alleged in the declaration that the plaintiff, while employed as a truck driver by the defendant and in the performance of his duties, received personal injuries by reason of the negligence of the defendant, his agents or servants. Claim for trial by jury was made on the writ by the plaintiff. The defendant filed a plea wherein he denied liability and alleged that after the injury he entered into an agreement with the plaintiff whereby the latter received compensation during his disability and also medical attention at the expense of the defendant, that this agreement made between the parties was substantially in accordance with the provisions of the Workmen's Compensation Act, and that the plaintiff was bound by the terms of the agreement. This agreement was pleaded as a bar to the plaintiff's cause of action. Under date of February 14, 1935, there is in the record, apparently indorsed on the back of the plea, this statement signed by a judge of the superior court: ‘Plaintiff's oral motion for jury trial of issues raised by the within plea is denied after hearing, because no claim for jury trial thereof was made as required by Rule 44. Plaintiff excepts.’ Under the same date there was also filed this: ‘Plaintiff's Claim of Exceptions. The plaintiff having claimed an exception in open court immediately upon the ruling of the court made upon the defendant's plea, now immediately reduces his claim of exceptions to writing; the plaintiff's exception is upon two grounds: 1. Plaintiff did not rely upon oral motion addressed to discretion of court. 2. The plaintiff did insist upon his right to a trial by jury upon the issues raised by said plea because he had originally claimed a trial by jury endorsed upon the writ at entry of same in this court.’ This was signed by the attorneys for the plaintiff but was not signed nor allowed by any judge. Under date of February 26, 1936, there is in the record signed by another judge of the Superior Court this statement: ‘After hearing on the merits the within plea is sustained. I find as facts that the agreement set forth in the plea was entered into and that the defendant had performed his part prior to the bringing of this action.’ On March 16, 1936, the plaintiff filed an appeal to the full court ‘from the order and findings entered on February 26, 1936, sustaining the defendant's plea and certain findings made. * * *’

The matter set up in the plea was in substance an accord and satisfaction. Curley v. Harris, 11 Allen, 112;Stimpson v. Poole, 141 Mass. 502, 6 N.E. 705. It does not appear that the injury to the plaintiff was compensable under the Workmen's Compensation Act. (G.L. (Ter.Ed.) c. 152, § 46, is not shown to be applicable and does not on the facts disclosed render ...