Christensen v. Bremer

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtPIERCE
PartiesCHRISTENSEN v. BREMER et al. (two cases). SAME v. NEW ENGLAND ROAD MACHINERY CO. (two cases).
Decision Date09 March 1928

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.


[263 Mass. 132]C. W. Proctor, of Worcester (E. A. Ryan, of Worcester, on the brief), for plaintiff.

[160 N.E. 411]

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 [263 Mass. 133]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.

[263 Mass. 134] The refusal to allow the plaintiff's motions at the time they were made was...

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11 practice notes
  • Guinan v. Famous Players-Lasky Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 6, 1929
    ...Co., 194 Mass. 341, 343, 80 N. E. 482;Pitman v. Lynn Gas & Electric Co., 241 Mass. 322, 323, 135 N. E. 223;Christensen v. Bremer, 263 Mass. 129, 160 N. E. 410. In the absence of negligence a retail dealer, in selling a commodity not inherently dangerous, is not liable in tort for its de......
  • Carter v. Yardley & Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 17, 1946
    ...Gas & Electric Co., 241 Mass. 322, 323, 135 N.E. 223;Tonsman v. Greenglass, 248 Mass. 275, 277, 142 N.E. 756;Christensen v. Bremer, 263 Mass. 129, 136, 160 N.E. 410;Giberti v. James Barrett Mfg. Co., 266 Mass. 70, 73, 165 N.E. 19;Smith v. Davidson Rubber Co., 306 Mass. 617, 35 N.E.2d 48......
  • Mentzer v. New England Tel. & Tel. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 11, 1931
    ...Mass. 447, 109 N. E. 363, L. R. A. 1916F, 1077. That ground need not be traversed again. See, also, [276 Mass. 488]Christensen v. Bremer, 263 Mass. 129, 136-137, 160 N. E. 410;Giberti v. James Barrett Manuf. Co., 266 Mass. 70, 73, 165 N. E. 19. There is no sound ground for a contention that......
  • Mitchell v. Lonergan
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 15, 1934
    ...no contractual relations and illustrated by Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482, and Christensen v. Bremer, 263 Mass. 129, 136, 160 N. E. 410. The analogy between the business of keeping a livery stable and the business conducted by the defendants is very close. W......
  • Request a trial to view additional results
18 cases
  • Guinan v. Famous Players-Lasky Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 6, 1929
    ...Wheel Co., 194 Mass. 341, 343, 80 N. E. 482;Pitman v. Lynn Gas & Electric Co., 241 Mass. 322, 323, 135 N. E. 223;Christensen v. Bremer, 263 Mass. 129, 160 N. E. 410. In the absence of negligence a retail dealer, in selling a commodity not inherently dangerous, is not liable in tort for its ......
  • Carter v. Yardley & Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 17, 1946
    ...Mass. 147, 149. Pitman v. Lynn Gas & Electric Co. 241 Mass. 322 , 323. Tonsman v. Greenglass, 248 Mass. 275 , 277. Christensen v. Bremer, 263 Mass. 129 , 136. Giberti v. James Barrett Manuf. Co. 266 Mass. 70 , 73. Smith v. Davidson Rubber Co. 306 Mass. 617 . Huset v. J. I. Case Threshing Ma......
  • Carter v. Yardley & Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 17, 1946
    ...Lynn Gas & Electric Co., 241 Mass. 322, 323, 135 N.E. 223;Tonsman v. Greenglass, 248 Mass. 275, 277, 142 N.E. 756;Christensen v. Bremer, 263 Mass. 129, 136, 160 N.E. 410;Giberti v. James Barrett Mfg. Co., 266 Mass. 70, 73, 165 N.E. 19;Smith v. Davidson Rubber Co., 306 Mass. 617, 35 N.E.2d 4......
  • Mentzer v. New England Tel. & Tel. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 11, 1931
    ...Mass. 447, 109 N. E. 363, L. R. A. 1916F, 1077. That ground need not be traversed again. See, also, [276 Mass. 488]Christensen v. Bremer, 263 Mass. 129, 136-137, 160 N. E. 410;Giberti v. James Barrett Manuf. Co., 266 Mass. 70, 73, 165 N. E. 19. There is no sound ground for a contention that......
  • Request a trial to view additional results

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