Burke v. Hodge

• Decision Date: 11 March 1912
• Citation: 97 N.E. 920,211 Mass. 156
• Parties: BURKE v. HODGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 156

97 N.E. 920

BURKE v. HODGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 11, 1912

COUNSEL

Patrick J. Duane and B. F. Murphy, for plaintiff Burke.

Jos. G Wright, for plaintiffs Perone and Domeo.

H. D McLellan and H. R. Bygrave (Declan W. Corcoran, of counsel) for defendants.

OPINION

RUGG C.J.

I. These are six actions, each of three different plaintiffs bringing an action against his employers, a firm known as Hodge, Kerr & Co., and another against a firm of independent contractors known as McArthur Bros., both engaged in the erection of the same building under separate contracts with a third person. The cause of action for each plaintiff was tort for personal injuries received by a falling wall while he was laboring in the construction of the building. In the actions against his employers each plaintiff counted at common law and under the employer's liability act, while in the actions against the independent contractors the counts were at common law. Against the objection and exception of the defendants, who were the independent contractors, the superior court directed all the actions to be tried together. In this no error is shown. All the actions grew out of a single physical incident. The evidence by which they were supported and defended was largely the same. The injury received by each plaintiff could not vary with the defendant, although the maximum of recovery would differ in the common-law action from that under the employer's liability act. Under these circumstances it was proper and within the discretion of the trial court to order all the cases tried together. Witherlee v. Ocean Ins. Co. 24 Pick. 67; Kimball v. Thompson 4 Cush. 441, 50 Am. Dec. 799; Springfield v. Sleeper, 115 Mass. 587; Burt v. Wigglesworth, 117 Mass. 302; Commonwealth v. Miller, 150 Mass. 69, 22 N.E. 434; Sullivan v. Boston Elec. Light Co., 181 Mass. 299, 305, 63 N.E. 904; Sullivan v. Fugazzi, 193 Mass. 518-520, 79 N.E. 775; Jones v. Boston, 197 Mass. 66, 83 N.E. 309. R. L. c. 173, §§ 2 and 3, have no bearing upon this rule of practice recognized for many years that in the interest of economy of time and expense separate actions depending in great degree upon the same evidence may be tried together in the judicial discretion of the presiding justice.

II. The contract of McArthur Bros. required them to do the carpenter work on the building. It was claimed by them at the trial that the evidence showed that they were to build certain forms into which Hodge, Kerr & Co., the plaintiffs' employers, who were contractors for concrete walls, were to place material, and that McArthur Bros. were to remove the forms as ordered by Hodge, Kerr & Co. This evidence is not reported, and from the record is cannot be determined whether it in fact supported these contentions. One Griffin testified that he was a carpenter in the employ of McArthur Bros., and removed the forms from the part of the wall which fell, the last being about 15 minutes before the accident, and there was no testimony that this was by direction of Hodge, Kerr & Co. or any one in their employ. Upon this state of the evidence, McArthur Bros. requested the court to instruct the jury that 'If Griffin or anybody in the employ of McArthur Bros. removed any forms not in the scope of their employment and without authority of McArthur Bros., then it is not the act of McArthur Bros. for which they are liable.' This was refused, and the jury were instructed that upon the evidence Griffin was one for whose act McArthur Bros. were responsible. The testimony of Griffin being the only testimony upon this point, there was nothing to control his statement that as a carpenter in the employ of McArthur Bros. he performed work which it was a part of their contract to do. There was no evidence on which an inference could be founded that the exceeded his instructions or that he was not acting within the scope of his employment. Hence no matter how sound the request may be as an abstract proposition of law, it was refused properly as having no relevancy to the issue raised. The prayer did not present the point whether Griffin was in the employ of McArthur Bros., but only whether being in their employ he exceeded his authority. The determination of the question, whether Griffin or others in fact removed the forms was left to the jury.

III. The defendants, McArthur Bros., excepted to a portion of the charge. But no error is shown. The jury were not asked to find a general verdict, but to answer 17 questions, important among which was one as to the proximate cause of the accident. It was in respect to that circumstance that the jury, after being instructed to find what the fact was with regard to the persons who might be responsible for the cause, were told in passing that if the plaintiffs 'were not negligent and somebody else was, they are entitled to a verdict, and ordinarily it would not be any matter of interest to them which party they got their verdict against. It would be left to the defendants to fight that battle out between themselves.' This was simply one way of impressing upon the minds of the jury their duty to answer the questions according to the evidence, regardless of which firm of defendants might appear to be affected thereby, for that was a matter which would be determined as between the two defendant partnerships in some other way. It cannot be doubted that ample instructions had been given as to the grounds upon which the several questions were to be answered. In view of the careful and definite phrase of each question and the precise point to which each was directed, the language of the charge, quoted above, to which exception was taken, is not fairly susceptible of the construction that the jury thereby were given to understand that if the plaintiffs were in the exercise of due care all the defendants were to be held as if they were joint tort-feasors. No one of the questions in terms fixed liability upon either set of defendants, although several related to specific acts of negligence. Liability became a question of law dependent upon the answers given.

IV. Among the 17 questions submitted to the jury were these:

'(4) 'What was the proximate cause of the accident?' To which the answer was, 'Removing of the forms.'

'(9) Were Hodge or Kerr negligent in the making of concrete for that part of the wall that fell?' To this the jury answered, 'Yes.'

'(12) Did the wall fall in consequence of improper making of concrete, in the constituents, or mixing?' To that the answer was, 'Yes, improper constituents.'

For the removal of the forms it appears that McArthur Bros. alone were responsible, while for the concrete Hodge, Kerr & Co. were alone responsible. The court gave full and accurate instructions as to what constituted proximate cause, and definitely pointed out that one or more of several causes might be the efficient agency, or that all together might concur, in producing the harmful result. When the answers were returned 'the court asked the jurors whether by their answers they meant to find that the only proximate cause of the accident was the removal of the forms by McArthur Bros. or that the negligence of Kerr in mixing of the concrete contributed and was also a proximate cause.' Two jurors, neither of whom was the foreman, replied, orally without contradiction from their fellows, 'Both.' Thereupon, without more, the court directed that verdicts be entered for the plaintiff in each of the six cases for amount of damages found by the jury for each. The exceptions of the defendants Hodge, Kerr & Co. bring the legality of this action under review. The foreman of the jury has been recognized by our statutes, and the manner of his choice regulated since the enactment of St. 1807, c. 140, § 11. Rev St. 1836, c. 95, § 20; Gen. St. c. 132, § 25; St. 1881, c. 300; Pub. Sts. c. 170, § 28; St. 1897, c. 515, § 8; R. L. c. 176, § 25. He is thus recognized by the statutes, as well as by the long-established custom of the courts, as the one who presides over the deliberations of the jury. His duty in this regard requires a maintenance of orderly discussion and decision. While his power is no greater than that of any juror, he is by virtue of his office the first juryman, and the chief of the twelve for the purpose of communicating with the court. He is the legally recognized voice of the jury. Through him the jury speaks. His signature alone is appended to verdicts and other papers in which the finding of the jury is expressed, and not that of each juror. In most instances the assent of the other members of the panel to all conclusions expressed in open court is asked formally, in order that there may be no mistake. Not infrequently questions are put orally to the jury by the presiding justice. On such occasions it is the general practice...