Fialkow v. DeVoe Motors, Inc.

• Decision Date: 08 June 1971
• Citation: 270 N.E.2d 798,359 Mass. 569
• Parties: Jay L. FIALKOW, executor, v. DeVOE MOTORS, INC. et al. (and two companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 798

270 N.E.2d 798

359 Mass. 569

Jay L. FIALKOW, executor, v. DeVOE MOTORS, INC. et al. (and two companion cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 8, 1971.

Decided June 8, 1971.

Walter F. Henneberry, Boston (David H. Kopleman, Boston, with him), for the defendants.

Abner R. Sisson, Boston (Moses I. Simon, Beverly, with him), for Arthur E. Mignault.

J. Newton Esdaile, Boston (Norman I. Jacobs, Boston, with him), for Jay L. Fialkow, executor.

Robert F. Sylvia, Boston, for Phil David Fine, administrator.

Before TAURO, C.J., and SPIEGEL, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

These are three actions in tort for negligence arising out of a motor vehicle accident which resulted in the death of two persons and in personal injuries to a third person. The cases are before us on the defendants' exceptions to several rulings made by the trial judge during the course of the trial, to his denial of motions for directed verdicts, to his instructions to the jury, and to his denial of motions for a new trial.

Sometime after 11 P.M. on April 5, 1963, a Renault automobile which was being driven northerly on Route 24 in Randolph by Arthur E. Mignault turned over and came to rest on its roof with Mignault trapped inside. Route 24 is a divided highway, with four lanes for travel in each direction, separated by a median strip about thirty to forty feet wide. The car lay across the most westerly of the north-bound lanes which is the passing lane. The road was practically level and its surface was dry. The weather was clear and visibility was good.

A number of persons from passing or approaching automobiles stopped and assisted in trying to turn the Mignault automobile upright. Included among those assisting were Frederick E. Penn and Earl E. Collins. Before they were able to right the Mignault automobile it was struck by another automobile owned by and registered in the name of DeVoe Motors, Inc. (DeVoe) and driven by Walter E. Sprague and traveling northerly. In the collision Mignault sustained personal injuries, and Penn and Collins sustained personal injuries which resulted in their deaths within about one-half to one hour thereafter.

The first case before us was brought by Jay L. Fialkow, as executor under the will of Penn, against DeVoe and Sprague. ¹ The declaration contains separate counts against each defendant for conscious suffering, and separate counts against each for death. The second case was brought by the predecessor of Phil David Fine, as administrator of the goods and estate of Earl E. Collins, ² against the same defendants, and his declaration is substantially the same as that in the Penn case. The third case was brought by Mignault against the same defendants. His declaration contains separate counts against each defendant for personal injuries. The trial judge submitted the cases to the jury on all counts, and they returned verdicts for the plaintiffs on all counts.

1. Exceptions during trial. It is obvious from the record before us that prior legal contests involving counsel for one of the plaintiffs and counsel for the defendants had left some still festering wounds and perhaps bitterness which affected their conduct in the trial of the present cases. It resulted in an unduly abrasive trial in so far as these two lawyers were concerned. They engaged in mutual personal accusations and recriminations, sometimes in the hearing of the jury, and now one of them complains that the trial judge should have done something about it. On one occasion counsel for the defendants asked that the other counsel be rebuked for a statement which he made and the court denied the request. On another occasion he moved for a mistrial because of a question put to one of his witnesses in the course of a vigorous cross-examination by the plaintiff's counsel, and the motion was denied. On seven occasions he arose to object to statements being made by the plaintiff's counsel in final argument to the jury, and in each instance the objection was overruled.

It would add nothing to our jurisprudence to try to determine which lawyer tossed the first irrelevant barb, which was the abuser and which was the abused, or to spread the details of the alleged improper statements and arguments on the printed pages of our permanent judicial precedents. It is sufficient to state that when a trial judge is faced with such a situation, he should and does have broad discretion to take whatever action he thinks is necessary to cope with and control the situation and to safeguard the rights of the parties. The trial judge, with the benefit of his presence in a vantage position when the alleged improper statement or argument is made, is in the best position to decide what corrective measures, if any, are required and when they should be taken. He has discretion to decide whether a mistrial should be declared or whether instructions should be given to the jury immediately or later as part of their final instructions. In short, he has discretion to decide whether any action is required and, if it is, what it should be and when it should be taken. This court will not intervene in such a case where no abuse of such discretion is shown. Hess v. Boston Elev. Ry., 304 Mass. 535, 540--541, 24 N.E.2d 550. Shea v. D. & N. Motor Transp. Co., 316 Mass. 553, 555, 55 N.E.2d 950. Salter v. Leventhal, 337 Mass. 679, 697, 151 N.E.2d 275. Luz v. Stop & Shop, Inc. of Peabody, 348 Mass. 198, 207, 202 N.E.2d 771. In the cases before us the trial judge included in his charge to the jury an instruction that neither the arguments of counsel nor their extraneous statements or remarks made during the progress of the trial are evidence. The defendants did not ask the court to give the jury any additional or different instructions on this point. The trial judge did not abuse his discretion in the manner in which he handled the alleged improper statements and arguments.

2. Motions for directed verdicts. Although the defendants' bill of exceptions claims error in the denial of their motions for directed verdicts in their favor on all counts in all three cases, their treatment of this subject in their brief presents a much more limited question to this court. The argument in their brief is limited to a claim that there was insufficient evidence of conscious suffering by the deceased Collins, and therefore that it was error to deny their motion for directed verdicts on counts 2 and 4 of the declaration in that case. We treat the exceptions to the denial of such motions with respect to all other counts in the three cases as waived.

By reason of this limited argument, we are not asked to decide whether there was sufficient evidence of negligence on the part of the defendants to submit the cases to the jury. The only question for our decision is whether there was sufficient evidence to permit the jury to find conscious suffering by Collins in the period between the time of the collision and the time of his death. In making this decision we consider the evidence in its light most favorable to the plaintiff, disregarding evidence tending to prove the contrary. Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302, 52 N.E.2d 411. STEWART V. ROY BROS. INC., MASS., 265 N.E.2D 357^A.

We summarize the evidence on this issue. Collins was found entirely under the automobile operated by Sprague when it stopped seventy-two feet beyond the point of its impact with the overturned Mignault automobile. A police officer who saw Collins there said that he was 'bleeding from the face, and trying, gasping, you know.' He also testified that when he went down to get Collins out, 'his arm moved down.' While Collins was under the car, the left side of his face was against the pavement. The officer saw Collins's eye looking at him. There was blood coming from him, a gurgling sound came from his mouth, and he was breathing heavily. In the opinion of the officer, Collins was then ablive. The automobile operated by Sprague had to be jacked up to remove Collins. As Collins was being removed from under the automobile, he emitted a noise which a witness described as a moan. While Collins was being removed to the Milton Hospital, a very faint sound was heard from him. The hospital record said in part: 'admitted 4/5/63--11:45 p.m., D.O.A. Clinical Diagnosis: pronounced dead 11:55 p.m.' The death certificate for Collins gave the cause of death as 'fractured skull and legs, struck by car.'

The question before us is whether the evidence summarized above showing gasping, gurgling, heavy breathing, and a bery faint noise coming from Collins after he was injured is sufficient to create a jury issue on whether he suffered consciously. We hold that it is not. In our recent decision of Carr v. Arthur D. Little, Inc., 348 Mass. 469, 474--478, 204 N.E.2d 466, we collected, discussed and analyzed many of our decisions on this subject. We then concluded as follows (p. 477, 204 N.E.2d p. 471.): 'The foregoing review of our cases on this subject leads to the conclusion that they may be classified in three categories. 1. Cases wherein the sounds, movements, or both, of the decedent are insufficient in the light of common experience and present medical knowledge to warrant a finding of conscious suffering. 2. Cases wherein the acts, utterances or both are sufficient in the light of common experience to warrant a finding of conscious suffering...