Ferris v. Ray Taxi Serv. Co.

• Decision Date: 17 May 1927
• Citation: 259 Mass. 401,156 N.E. 538
• Parties: FERRIS v. RAY TAXI SERVICE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 401

156 N.E. 538

FERRIS

v.RAY TAXI SERVICE CO.

Supreme Judicial Court of Massachusetts, Essex.

May 17, 1927.

Exceptions from Superior Court, Essex County; J. F. Quinn, Judge.

Action by Irene E. Ferris, administratrix, against the Ray Taxi Service Company. On exceptions after verdict for plaintiff. Exceptions sustained as to one count only.

C. E. Flynn, of Cliftondale, for plaintiff.

R. L. Sisk and W. E. Sisk, both of Lynn, for defendant.

CARROLL, J.

In this action of tort by the administratrix of the estate of James Ferris the plaintiff recovered a verdict under the first count for conscious suffering and under the second count for the death of the intestate.

1. The first contention of the defendant is that the judge erred in instructing the jury on the question of the due care of the plaintiff's intestate. The jury were told in effect that when the trial opened the deceased was presumed to be in the exercise of due care, but when ‘the evidence is put in, then the presumption disappears and you will judge then as to whether or not he [the intestate] was lacking in due care by the testimony introduced, in so far as the testimony introduced shows all his actions and movements and conduct previous to his injury, and the burden is with the defendant.’ This instruction was correct. As there was evidence bearing on the question of the intestate's care, it was for the jury to determine that issue on the evidence, and there was, therefore, no presumption in his favor. The principle laid down in Duggan v. Bay State Street Railway, 230 Mass. 370, 377, 119 N. E. 757, L. R. A. 1918E, 680, was followed. St. 1914, c. 553.

2. The defendant also contends that the judge erred in failing to give certain requests bearing on the defendant's theory of the case. The judge fully explained all the material aspects of the case, and directed the attention of the jury to the conduct of the deceased and of the defendant's chauffeur. He was not obliged to single out certain portions of the evidence. His charge in this respect was free from error. Ayers v. Ratshesky, 213 Mass. 589, 593, 101 N. E. 78;Lounsbury v. McCormick, 237 Mass. 328, 337, 129 N. E. 598;Director General of Railroads v. Eastern Steamship Lines, Inc., 245 Mass. 385, 401, 139 N. E. 823.

3. The defendant's president testified that he talked with the plaintiff's intestate at the hospital after the injury had been received; that ‘he inquired of Mr. Ferris how the accident happened and Ferris told him that while he ran behind the car he said the car was backing and he told him not to blame the boy, that the boy was absolutely blameless; that it was his own fault in going in between the car and the truck.’ This evidence was admitted without exception. In the charge the jury were told that this evidence was admissible on the first count only, and the ‘second count for death you will give no consideration or thought to the statement claimed to have been made by the deceased to Ray [the defendant's president]. The statement that was made to Mr. Ray is not evidence at all under the second count.’ The defendant excepted to this instruction. The administratrix was acting as the representative of the estate of James Ferris in suing on the count for conscious suffering. On the second count, to recover for his death, she was not acting for his estate, and the damages recovered thereunder would be in the nature of a fine or penalty and would go to the next of kin. The admissions of Ferris did not bind them, and his statement considered merely as an admission of his own fault would be admissible as such and binding on his estate under the first count; his statement, however, would not be admissible as an admission under the second count. Eldridge v. Barton, 232 Mass. 183, 122 N. E. 272.

But under G. L. c. 233, § 65, a declaration of a deceased person is not to be deemed inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant. If the preliminary requirements were complied with, the declaration of Ferris was admissible under the second count, as well as under the first count, because of the statute. Eldridge v....