Ford v. Flaherty

• Decision Date: 13 December 1973
• Citation: 305 N.E.2d 112,364 Mass. 382
• Parties: Adelaide A. FORD v. Kyle L. FLAHERTY, Yankee Dodge, Inc., et al., Third-Party Defendants.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 112

305 N.E.2d 112

364 Mass. 382

Adelaide A. FORD v. Kyle L. FLAHERTY, Yankee Dodge, Inc., et al., Third-Party Defendants.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 8, 1973.

Decided Dec. 13, 1973.

Thomas D. Burns, Boston (Mitchell J. Sikora, Jr., Boston, with him), for Yankee Dodge, Inc.

David W. Kelley, Boston, for Kyle L. Flaherty.

Karl L. Gollub, Boston (John B. Johnson, Boston, with him), for Chrysler Corp.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

HENNESSEY, Justice.

This case is before us as a consequence of our allowance of an application by Yankee Dodge, Inc. (Yankee), a third-party defendant, for leave to obtain further appellate review after a decision of the Appeals Court. Ford v. Flaherty, Mass.App (1973), ^a 294 N.E.2d 437 G.L. c. 211A, § 11. S.J.C. Rule 3:24, § 7, Mass. (1972).

The plaintiff brought an action in tort for personal injuries, arising out of an accident that occurred on August 18, 1964, against Kyle L. and Marguerite R. Flaherty, operator and owner, respectively, of a motor vehicle. The Flahertys, as third-party plaintiffs, impleaded Yankee, Chrysler Motors Corporation, and Chrysler Corporation (Chrysler), the manufacturer. At the conclusion of the evidence, the plaintiff waived the action against Marguerite Flaherty, thus eliminating the third-party claims of Marguerite Flaherty. As to Yankee and Chrysler, counts for negligence, misrepresentation, and breach of warranty remained against both corporations in the third-party declaration by Kyle L. Flaherty (Flaherty).

After a jury trial, the judge allowed the motions of both Yankee and Chrysler for directed verdicts on counts alleging misrepresentation and breach of warranty, sending to the jury, both in the direct action of Ford against Flaherty and in the third-party action of Flaherty against Yankee and Chrysler, only the negligence counts. The jury returned a verdict for the plaintiff in the direct action against Flaherty for $15,000 and in the same amount for Flaherty over against Yankee and Chrysler. These verdicts against the third-party defendants were taken under leave reserved and, after argument, verdicts for Yankee and Chrysler were entered under the leave reserved by the judge.

The case then came to the Appeals Court on the exceptions of the third-party plaintiff Flaherty against Yankee and Chrysler (1) to the entry of the verdicts under leave reserved and (2) to the allowance of the motions for directed verdicts on the counts for misrepresentation and breach of warranty.

The Appeals Court (1) sustained Flaherty's exception to the entry of a verdict under leave reserved and ordered the reinstatement of his jury verdict on the negligence count against Yankee, and (2) found it 'unnecessary to consider whether there was error with respect to . . . (the) count' for breach of warranty. As to Chrysler, it overruled the exceptions to the entry of a verdict under leave reserved on the count for negligent manufacture and to the directed verdict on the count for breach of warranty. ¹ The case then came to this court because of the allowance of Yankee's application for leave to obtain further appellate review.

On August 18, 1964, at approximately 1:30 P.M., at the intersection of Columbia Road, Dorchester, and the entrance ramp to the Southeast Expressway, a car driven by the defendant third-party plaintiff Flaherty struck and injured the plaintiff, a pedestrian. Flaherty was driving a 1964 Dodge, manufactured by Chrysler and purchased by the Flahertys from Yankee about July 8, 1964. The plaintiff was walking along the sidewalk of Columbia Road when she saw the Flaherty car traveling about thirty miles an hour and going in the same direction, on the right hand side of the island dividing Columbia Road. She heard a screech and saw the Flaherty vehicle making a sharp left turn through the space in the dividing island which permitted access to the ramp for the Southeast Expressway. The vehicle continued sharply left across the eastbound lane of Columbia Road, and its left front wheel struck the seven-inch high curbing, flattening the tire. The car then struck the plaintiff, knocked over a utility pole and came to rest with the left front wheel on the sidewalk and the remainder in the road and perpendicular to it.

The automobile was equipped with a regular hydraulic brake system and power steering; at the time o the accident it had been driven about 1,900 miles since the time of its purchase, as a new vehicle, from Yankee. There was evidence that the Flahertys noticed difficulty with the brakes and steering of the vehicle and that, on or about August 1, 1964, Flaherty told employees of Yankee about the complaints and left the vehicle with that company. When he picked the car up, the steering and brakes seemed all right. There was extensive evidence as to the inspection of the vehicle, particularly as to the brakes, prior to its sale.

1. Here we have a granted an application by Yankee for further review only of the issue as to whether the Appeals Court was correct in its determination that the verdict for the third-party plaintiff on the negligence count against Yankee should have been allowed to stand. ² The thrust of Yankee's argument is that the evidence did not warrant an inference that any negligence of Yankee, by its servants or agents, contributed to cause the accident. Evidence on this issue was complex, and the question was well argued by the parties. We have reviewed all relevant parts of the record before us, and we find no error in the conclusion of the Appeals Court that an inference was warranted that negligence of Yankee contributed to cause the accident.

Another principal consideration in this court's decision to grant further review in this case concerns the rule that ordinarily one who has defended and lost an action of tort for his own negligence cannot recover for indemnity against another. The principle has long been clearly stated by this court: 'It is simply this: If a party is obliged to defend against the act of another, against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own . . . (he may recover from the other party) not only for the amount of damages recovered, but for all reasonable and necessary expenses incurred in such defence' (emphasis supplied). Westfield v. Mayo, 122 Mass. 100, 109 (1877). See Consolidated Hand-Method Lasting Mach. Co. v. Bradley, 171 Mass. 127, 133, 50 N.E. 464 (1898); Pittsley v. Allen, 297 Mass. 83, 7 N.E.2d 442 (1937); Buhl v. Viera, 328 Mass. 201, 102 N.E.2d 774 (1952). In a few cases indemnity has been allowed to persons who were not free of fault, but the facts and reasonsing of those exceptional cases are not apposite here. See Gray v. Boston Gas Light Co., 114 Mass. 149 (1873); Boott Mills v. Boston & Maine R.R., 218 Mass. 582, 106 N.E. 680 (1914); Hollywood Barbecue Co., Inc. v. Morse, 314 Mass. 368, 50 N.E.2d 55 (1943). Compare Stewart v. Roy Bros., Inc., 358 Mass. 446, 265 N.E.2d 357 (1970), and BECKER'S INC. V. BREYARE, MASS. (1972), 279 N.E.2D 651.^B Nor is there any relevance here to G.L. c. 231B, which provides for contribution among joint tortfeasors, since what Flaherty seeks against Yankee is reimbursement for his entire loss rather than a distribution of the loss between himself and Yankee.

In this case the negligence of Flaherty, as established by the jury verdict against him, constituted a defence against him in his third-party action against Yankee. The opinion of the Appeals Court...