Costello v. Hayes

• Decision Date: 23 May 1924
• Citation: 144 N.E. 368,249 Mass. 349
• Parties: COSTELLO v. HAYES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 349

144 N.E. 368

COSTELLO

v.HAYES.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1924.

Exceptions and Appeal from Superior Court, Middlesex County; Franklin T. Hammond, Judge.

Action of tort by Margaret Costello against John F. Hayes for injuries and damages sustained by being struck by an auto. Verdict for defendant, and plaintiff brings exceptions and appeals. Exceptions overruled, and appeal dismissed.

Dr. O'Brien was permitted to testify that there was a lineal fracture of the left parietal.W. A. Lackey, of Boston, for plaintiff.

L. C. Doyle and C. M. Pratt, both of Boston, for defendant.

BRALEY, J.

The plaintiff on July 11, 1919, was struck and severely injured by an automobile owned and driven by the defendant. The answer among other defenses pleaded a release under seal dated September 15, 1919, which purported to discharge the defendant from all liability. We assume on the record that there was evidence for the jury on the question of the plaintiff's due care and the defendant's negligence, and that the principal issues were whether the release which bore the plaintiff's signature was invalid by reason of lack of mental capacity to understand the nature and effect of the instrument, and whether it was procured by the undue influence of Frank J. Perry, a claim agent of the Travelers' Insurance Company, in which the defendant apparently was insured. The judge without objection of either party accordingly submitted the following questions to the jury:

‘Did the plaintiff have sufficient mental capacity to be capable of making the settlement, and executing the release of September 15, 1919?’

‘Was the execution of the release by the plaintiff procured by the undue influence of the defendant's agents?’

The jury, having answered the first question, ‘Yes,’ and the second question, ‘No,’ returned a general verdict for the defendant, and the case is here on the plaintiff's exceptions to the exclusion and admission of evidence, and to the refusal of the judge to rule as requested, and to the instructions to the jury.

The exceptions, which are numerous, have been severally and urgently pressed, and we consider them as presented. While the jury could find that the plaintiff was illiterate, and at the date of the release was suffering from the permanent effects of the accident which caused a ‘fracture of the left parietal bone,’ with ‘a compound fracture and laceration of the same region,’ and that her mental condition was of a low grade, the exclusion of the questions as to what she thought the defendant's agent meant by his statements when solicuting her to execute the release, and what she thought when she received the money, as stated in the release, were proper. It could not be avoided, even if the plaintiff had a mistaken conception of its effect. Rosenberg v. Doe, 146 Mass. 191, 193, 15 N. E. 510;Atlas Shoe Co. v. Bloom, 209 Mass. 563, 569, 95 N. E. 952, and cases cited. The further question as to her intention, as well as the question whether she would have signed, if she had known that the instrument was a release of all claims, or that she did not understand anything further than what she had already answered, were irrelevant. The plaintiff's signature having been admitted, she could not characterize or describe its conents. Gold v. Boston Elevated Railway, 244 Mass. 144, 147, 138 N. E. 251.

The statement of the plaintiff, that she thought she would be arrested because of the language used by Perry, also was excluded rightly. It also is of no consequence whether the plaintiff understood that she was precluded ‘from any further action.’ McKinney v. Boston & Maine Railroad, 217 Mass. 274, 476,104 N. E. 446.

The plaintiff's medical expert, Dr. Schallenbach, having described at length her physical condition and mental condition at the time of his examination on September 30, 1919, the defendant's counsel, subject to the plaintiff's exception, was permitted to ask in cross-examination:

‘Would you expect a woman under these circumstances cumstances to exert her utmost, particularly as far as answering questions quickly, brightly, and that sort of thing, under the circumstances that this examination was made?’

The question at least was within the discretion of the judge, and the colloquy between plaintiff's counsel and the court when a request was made and denied that the question be repeated, presents under the circumstances appearing in the present record no error of law. Jennings v. Rooney, 183 Mass. 517, 67 N. E. 665;Taylor v. Schofield, 191 Mass. 1, 5, 77 N. E. 652.

The plaintiff asked Dr. O'Brien, a specialist in ‘radiograph work,’ who had examined plates taken of the plaintiff's head, whether there was any doubt as to the correctness of the plates, to which the replied ‘that he could not testify as to that.’ A further question was then asked, ‘To the best of your judgment, then, was it a fracture of the left parietal bone?’ The judge immediately said to the witness, ‘You need not answer that question,’ and the plaintiff excepted. The question well might have been admitted, but in view of what the witness had previously said we cannot hold as matter of law that the plaintiff was harmed. Garland v. Boston Elevated Railway, 210 Mass. 458, 460, 97 N. E. 97.

[7] The plaintiff's counsel complains that the general conduct and attitude of the court, and especially the order of the judge to her counsel that he take his seat, tended to prejudice the jury, and that the plaintiff did not have a fair and impartial trial. A detailed review of all that took place at intervals during the proceedings would serve no useful purpose. The tone of a trial is not subject to exception, nor can the printed record reproduce the inflections of voice and manner of counsel. We are satisfied, after a full examination, that the conduct of the judge did not exceed his province, and that no reversible error is shown. Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495, 84 N. E. 95.

We now come to the refusal to give the plaintiff's fifth, eighth, tenth, twenty-second, thirty-eighth, thirty-ninth, and fortieth requests. The requests, with the exception of the fifth, were either based on the recital of portions of the evidence or were sufficiently covered by the instructions. The execution and delivery of the release were not in dispute. The burden of proof, therefore, was on the plaintiff, not only to show its invalidity because of undue influence, but also that she was not of sufficient mental capacity to understand it. Barron v. International Trust Co., 184 Mass. 440, 446,68 N. E. 831, and cases cited; Farnam v. Brooks, 9 Pick. 212, 220;Reed v. Mattapan Deposit & Trust Co., 198 Mass. 306, 314, 84 N. E. 469. The fifth request however was:

‘That if they shall find that Mr. Perry, the agent of the insurance company, acting for the interests of the defendant Hayes, knew either from herself or her husband that she was in a weak state mentally and physically, and if her husband told the said agent to leave the house, and to take it up with Mr. Lackey or their attorney, and the said agent did not take it up with the said attorney, but persisted in returning to his house when he was not at home, so that finally he induced her to sign a release at the time when she did not understand the purport of the instrument that she signed, this is a fraud on his part, and the release is no bar to this action.’

It called...