Cieplinski v. Severn

• Decision Date: 27 November 1929
• Citation: Cieplinski v. Severn, 269 Mass. 261, 168 N.E. 722 (Mass. 1929)
• Parties: CIEPLINSKI v. SEVERN (two cases).
• Court: Supreme Judicial Court of Massachusetts

269 Mass. 261

168 N.E. 722

CIEPLINSKI

v.SEVERN (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 27, 1929.

Appeal from District Court of Springfield; Wallace R. Heady, Judge.

Two separate actions by Amelia Cieplinski and Michael Cieplinski against Frank Severn, heard as one case. Case reported. From an order of the Appellate Division dismissing the report, plaintiffs appeal. Reversed and remanded.

James F. Egan, of Springfield, for appellants.

Wooden, Small & Malary, of Springfield, for appellee.

PIERCE, J.

These are two actions of tort, each in two counts. The plaintiff in the second action, who is the husband of the plaintiff in the first action, seeks to recover for consequential damages. The cases were heard together as one case by a judge of the district court of Springfield. The plaintiff in the first action will herein be referred to as the plaintiff. At the close of the trial and before final arguments, the plaintiff made certain requests for rulings as to count one of the declaration. The judge made certain findings of fact and severally denied each request for rulings of law because contrary to the facts found by the court. The judge found for the defendant on the first count of the plaintiff's declaration, and at the request of the plaintiff made report to the Appellate Division. This report contains all the evidence material to the questions reported. The cases are before this court on the appeal of the plaintiff from the order ‘report dismissed’ of the Appellate Division.

The first count of the plaintiff's declaration alleges that ‘while she was walking along East Street, in Ludlow, the defendant contriving to injure the plaintiff and to compel her against her will to do as he wished her to do, stopped her and under the pretense that he was to take her to her home in his automobile induced her to ride with him in his automobileover East Street in the direction of her home; that she rode with him in said automobile on East Street, in said Ludlow, in the direction aforesaid; that when said automobile was a block away from the street on which she resided, in said Ludlow, she informed the defendant and requested him to let her off there; that despite her request, the defendant, operating said automobile in wilful and reckless disregard of the safety of the plaintiff, and making indecent proposals to the plaintiff carried her beyond her street for some distance; that the plaintiff then in her endeavor to get from the defendant's automobile to safety, leaped from it while it was moving and sprained her ankle, was shaken up and sustained other serious injuries.’ The defendant's answer was a general denial and an allegation of contributory negligence on the part of the plaintiff.

The facts found by the judge and reported are as follows: ‘About 6.30 o'clock in the evening of April 21, 1928, the plaintiff was walking northerly on the left hand side of East Street in Ludlow, in said county, to ward the corner of Lakeview Avenue, which was a little over a street block away from her and on which she lived, at a considerable distance from East Street. The defendant, driving a truck northerly on the opposite side of East Street, drove the truck to the left hand side of the street, near the plaintiff, asked the plaintiff if her husband was home, and on receiving an affirmative answer, said, ‘Come on, sit down, I'll take you home.’ After demurring slightly, the plaintiff got in and sat on the driver's seat near defendant in the cab of the truck and defendant drove along. They had known each other slightly for quite a good many years, and defendant had at least once been to plaintiff's home to see plaintiff's husband on a business matter. Before getting to Lakeview Avenue, the plaintiff notified defendant that that was the corner to turn; but defendant continued on past the corner. He said to plaintiff, ‘We'll go for a ride.’ Plaintiff said, ‘I don't want to ride; I've got a husband and kids.’ Defendant replied, ‘you can change them.’ Plaintiff replied, ‘If you want a change, take a young lady, not me.’ Defendant replied, ‘I want you.’ Defendant twice put the fingers of his right hand on the breast of the plaintiff on one side of her body. Plaintiff opened the door on her side of the car and stood up in the cab and said to defendant, ‘you stop the machine; you no stop I'm going to jump.’ They were then past Lakeview Avenue and, with the car ‘going a little slower’ kept on to Kirkland Street, the next street beyond Lakeview Avenue, with plaintiff still standing up in the cab of the truck. Defendant then put the fingers of his hand for the third time on the breast of plaintiff. The plaintiff testified that after she stood up and directed him to stop the car, the defendant ‘slowed the car down’ that when she turned to the door to leave the car, ‘the car was being driven very slowly’ that the car ‘continued to third time, the plaintiff, having picked up the put his hand on her breast the third time, which immediately, and almost instantly preceded her leaving the car. When defendant put his hand on the breast of the plaintiff the third time, the plaintiff, haveing picked up the bag of groceries which she had with her, stepped to the running board of the truck, and at once stepped or jumped from the running board to the...