Christensen v. Bremer

• Decision Date: 09 March 1928
• Citation: 160 N.E. 410,263 Mass. 129
• Parties: CHRISTENSEN v. BREMER et al. (two cases). SAME v. NEW ENGLAND ROAD MACHINERY CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 129

160 N.E. 410

CHRISTENSEN

v.BREMER et al. (two cases).

SAME

v.NEW ENGLAND ROAD MACHINERY CO. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

March 9, 1928.

Exceptions from Superior Court, Worcester County; Broadhurst, Judge.

Separate actions by Emma Christensen, administratrix, against Arthur F. Bremer and others and against the New England Road Machinery Company. On plaintiff's exceptions after verdict. Exceptions overruled.

C. W. Proctor, of Worcester (E. A. Ryan, of Worcester, on the brief), for plaintiff.

C. C. Milton, S. B. Milton, and J. H. Meagher, all of Worcester, for defendants Bremer et al.

J. P. Carr, of Boston, for defendant New England Road Machinery Co.

PIERCE, J.

These four actions of tort, by the same plaintiff against two different defendants, were tried together. In two of the cases the plaintiff seeks to recover for conscious suffering and death of her intestate; in the other two cases she seeks to recover for personal property damage.

The bill of exceptions shows that the declarations in the property damage cases were filed in court on January 5, 1925, and answers thereto on January 5 and January 21, 1925, respectively; that in the death actions substitute declarations were filed and allowed on October 28 and 26, 1926, respectively; that the answer of the defendants Bremer et al. contained general denials, an allegation of contributory negligence, and an averment that ‘the plaintiff has entered into an agreement and received compensation under the provisions of General Laws, c. 152, the Workmen's Compensation Act so-called.’

On the opening day of the trial, the plaintiff's counsel stated to the trial judge that the plaintiff administratrix is receiving compensation from the insurer of the decedent's employer under the provisions of the Workmen's Compensation Act. Thereafter the defendant New England Road Machinery Company filed, and the judge allowed, a motion to amend its answer so as to include an allegation in effect that the plaintiff had entered into an agreement and received compensation under G. L. c. 152, and additions and amendments thereto. The plaintiff filed written motions in the death actions that the defendants be required to strike out from their answers that part which referred to the plaintiff's receiving compensation under the Workmen's Compensation Act. The judge declined at that time to grant the motions because the plaintiff would not ‘admit or agree that the action to recover for conscious suffering and death against each defendant is in fact being prosecuted in the name of the plaintiff for the benefit of the deceased's employer's insurer, under the act.’ At the close of the trial, following a conference at the bench, the ‘court stated in the hearing of the jury and for the purpose of the record’ that ‘counsel for the plaintiff now says that the suit to recover damages for the conscious suffering and death of Charles P. Christensen, brought here in the name of the administratrix of his estate, is being prosecuted in the interest of the insurer of the town of Shrewsbury, the employer of the deceased, under the provisions of the Workmen's Compensation Act.’ The bill of exceptions states that:

‘The motion to strike out that part of the defendant's answer in said case referring to plaintiff's recovering compensation under the Compensation Act was not again called to the attention of the court by the plaintiff, or in any way renewed.’

It is to be observed, however, that the record shows that the plaintiff in each death action made a written motion to strike out from the answer the part referring to the plaintiff's receiving compensation under the Workmen's Compensation Act, citing Chaves v. Weeks, 242 Mass. 156, 736 N. E. 73; Portland Gas Light Co. v. Ruud, 242 Mass. 272, 136 N. E. 75;Hall v. Henry Thayer & Co., 225 Mass. 151, 113 N. E. 644;Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443-and that the motion was allowed October 28, 1926.

The refusal to allow the plaintiff's motions at the time they were made was error and prejudicial to the plaintiff. But that error was cured by the subsequent allowance of the motions, and more particularly by that part of the charge, not excepted to, wherein the judge said:

‘I would like to have you bear in mind, Mr. Foreman and gentlemen, that in the assessment of damages, if you come to that point, you treat the case as though there had not been any reference to the insurance company in the thing at all. Treat the thing wholly on its merits as though Mrs. Christensen had never elected to receive compensation from the insurance company. * * * If you get to the point of assessing damages assess them with reference to the right Mrs. Christensen has, as widow and administratrix, to recover, as though there had not been any question of insurance here at all.’

The facts shown by the record, succinctly stated, pertaining to the exception taken by the plaintiff to the allowance of the motions to direct verdicts, are as follows: The defendant Arthur F. Bremer ran a sand business alone in the town of Shrewsbury. After he had been in the business about a month, a representative of the New England Road Machinery Company (hereinafter called the company) came to the pit and asked him why he did not go into the gravel business too, to which Bremer replied ‘he had no money or little of it.’ Later, the president said he would put the machinery up for him and talked with Bremer about the kind of bin he ought to have, and told him that if he took the machinery from the company it would give him the drawings for the bin. Bremer thereupon purchased the machinery under a lease form of agreement, which was read to the jury, and received the drawings from the company. The bin shown by the plans was supposed to hold 150 tons of gravel, and at the time of the accident ‘there were probably 75 tons of gravel in it.’ It was a large, rectangular, boxlike structure sixteen feet wide, twenty-four feet long, built of heavy planks and timbers with four compartments for sand and gravel. When installed it was placed upon nine wooden supports, nine feet high and eight inches wide and eight inches thick. They were set on cement piers with a steel rod running through the cement pier into the bottom end of the eight inch by eight inch posts probably five or six inches, and the posts were braced with four inch by four inch timbers. A place for the loading of a team with sand or gravel was...