Cuddy v. L & M Equipment Co.

• Decision Date: 28 April 1967
• Citation: 352 Mass. 458,225 N.E.2d 904
• Parties: George F. CUDDY v. L AND M EQUIPMENT CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 904

225 N.E.2d 904

352 Mass. 458

George F. CUDDY v. L AND M EQUIPMENT CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 7, 1967.

Decided April 28, 1967.

Robert D. Callahan, Stoneham, for William C. Foster.

Charles W. O'Brien, Boston, for Bay State Petroleum Co., Inc.

Reuben Hall, Boston (John J. Murphy, Boston, with him), for plaintiff.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

This is an action of tort for personal injuries sustained by the plaintiff as a result of a motor vehicle accident. The accident involved an automobile in which the plaintiff was riding as a passenger and a tractortrailer unit owned by the defendant Bay State Petroleum Co., Inc. and operated by the defendant William C. Foster. ¹

The jury returned a verdict for the defendant L and M Equipment Co. and a verdict for the plaintiff against each of the other defendants. The case is here on the latter defendants' exceptions.

The plaintiff testified that he was riding in the back seat of an automobile, 'stopped in traffic, when it was 'violently rammed' in the rear by a truck.' Foster testified that 'he was proceeding south in the center lane on the Southeast Expressway when the plaintiff's vehicle came out of the entrance at North Station into the center lane 50 feet ahead of the defendant's vehicle. An unidentified vehicle ahead of the plaintiff's vehicle slowed or stopped quickly forcing the plaintiff's vehicle to come to a sudden stop about 40 feet ahead of the * * * truck (which) was then proceeding about twenty-five miles per hour.'

The evidence as to the plaintiff's injuries was as follows. The plaintiff testified that upon impact 'his head went backwards and forward; he had a sensation 'like two stones rubbing together' and he felt a sharp pain.' Dr. Richard Quintiliani, called by the plaintiff, testified that he first examined him four days after the accident. He diagnosed the injury as 'cervical sprain and aggravation of pre-existing osteo-arthritis of the fifth and sixth cervical vertebrae.' It was his opinion that a bony fragment, later found in the plaintiff's neck, was probably broken off from one of the neck vertebrae, and 'that the accident in question was an efficient cause of the bone displacement.' Dr. Quintiliani treated the plaintiff from March 11, 1963, until sometime in May of 1963. On March 11, 1963, the plaintiff felt in good health, with a minor exception. Thereafter Dr. Quintiliani observed the plaintiff practically every day until the end of June, 1964. In his opinion, the plaintiff will probably have a permanent residual effect from his injury.

Dr. Robert Hormel, an orthopedic specialist, testified that he first saw the plaintiff on April 30, 1963, 'complaining of pain in his neck * * * which would increase as the day went on, and was associated with headaches, which would cause him to lie down and rest upon arriving home from work. * * * Examination disclosed marked restriction of neck motions.' He prescribed the use of a Thomas collar. He examined the plaintiff again in June and August and performed surgery in September to remove the bony fragment. He saw him 'during his confinement, and at that time concluded that there was no evidence of systemic arthritis or general arthritic disease.' He saw him again on several occasions in the year following the operation. 'During this period the post-operative pain had been altered in that it was steady, but remained local in the neck, neck motions being quite restricted.' The pain increased and he was confined to a hospital for traction and physical therapy. He was discharged on February 24, 1965, with a diagnosis of cervical osteoarthritis. It was Dr. Hormel's opinion 'that * * * limitation of motion and his pain was different from the normal 58 year old person, and that the sort of injury which the patient sustained in this accident, assuming his history to be true, would bring about the pain that has been described.' He stated that 'the probabilities are that the patient's symptoms would continue about the same way as they are without much change, 'that he will continue to have a partial disability permanently. '' On cross-examination, he testified that the plaintiff was perfectly capable of doing all his work during the time he was treating him, except when he was hospitalized and convalescing.

Dr. Robert Dine, called by the defendants, testified that his examination of the plaintiff on October 22, 1963, showed that he 'had moderate limitation of motion of his neck and, to this extent, was partially disabled.'

1. An actuary, called by the plaintiff, testified over the defendants' objection that the life expectancy of a white male of the plaintiff's age and in good health at the time of the accident was 18.15 years. The defendants argue that this testimony should have been excluded because there was no showing that the plaintiff was in good health, or that his earning capacity had been impaired.

In view of the testimony of Dr. Quintiliani as to the plaintiff's health on March 11, 1963, the defendants' first point is not well taken.

Nor is there merit to the defendants' second contention. The life expectancy of the plaintiff was clearly relevant on the issue of the degree of expected future pain and suffering, which has always been an element of damages for personal injuries. 'The sum of money fixed upon must be such as fairly compensates the injured person for the loss of time, the physical pain and the mental suffering, both that undergone in the past and likely to occur in the future.' Cochran v. City of Boston, 211 Mass. 171, 172, 97 N.E. 1100, 39 L.R.A.,N.S., 120. There was ample testimony that the plaintiff's pain and suffering would continue indefinitely. In these circumstances the expert testimony as to the plaintiff's life expectancy was admissible, even though his earning capacity was not impaired. Banks v. Braman, 195 Mass. 97, 99, 80 N.E. 799.

2. Foster excepted to the admission of his answer to the following interrogatory of the plaintiff: 'If the accident occurred because you were unable to bring to a stop the motor vehicle which you were operating, please set forth fully facts which account for your being unable to bring said motor vehicle to a stop.' The following answer was admitted: 'The defendant operator felt that the trailer did not stop as well as it should, and sometime afterwards the brakes were found to be faulty and were relined.'

Foster argues that '(t)his answer embodied hearsay in that there was no evidence that the defendant had personal knowledge that 'sometime afterwards the brakes were found to be faulty and were relined.''

The statute governing the questions which may be propounded by interrogatories and the use at the trial which may be made of interrogatories and the answers thereto is G.L. c. 231, §§ 61, 62, 89. ² In Warren v. Decoste, 269 Mass. 415, 417, 169 N.E. 505, 507, we reviewed the purpose of § 61, saying it was to 'enable a party to interrogate his adversary to the same extent as would be permissible if he were called as a witness at the trial.' Clearly, under this standard, the question propounded was a proper one. The answer given could have been based on Foster's personal knowledge. It was not 'couched in terms of hearsay.' Cf. Falzone v. Burgoyne, 317 Mass. 493, 497, 58 N.E.2d 751; Altman v. Barron's, Inc., 343 Mass. 43, 48, 175 N.E.2d 506.

Although evidence of repair in order to show negligence may be excluded (see Shinners v. Proprietors of Locks & Canals, 154 Mass. 168, 28 N.E. 10, 12 L.R.A. 554), we note that in the case at bar Foster made a general objection to the admission of his own answer at least part of which was plainly admissible. Oehme v. Whittemore-Wright Co. Inc., 279 Mass. 558, 565, 181 N.E. 733. See McCormick, Evidence, § 77.

3. The defendants excepted to a portion of the plaintiff's argument to the jury (set out in the margin) ³ relating to the 'measurement of damages for pain and suffering.'

The defendants maintain that this argument was prejudicial because there was no evidence of 'permanent partial disability' and cite Gardner v. State Taxi, Inc., 336 Mass. 28, 31, 142 N.E.2d 586, in support of their contention. We do not agree. In ...