Freyermuth v. Lutfy

• Decision Date: 13 November 1978
• Citation: 376 Mass. 612,382 N.E.2d 1059
• Parties: Joanne M. FREYERMUTH, Administratrix, v. Samuel J. LUTFY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1059

382 N.E.2d 1059

376 Mass. 612

Joanne M. FREYERMUTH, Administratrix, v. Samuel J. LUTFY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 15, 1978.

Decided Nov. 13, 1978.

John J. Thornton, Boston, for defendant.

Alton F. Lyon, Rockland, for plaintiff.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

LIACOS, Justice.

The administratrix of the estate of Norma M. Kendall seeks recovery in this tort action against Samuel J. Lutfy for the conscious pain and suffering of the decedent and for wrongful death. The plaintiff alleged in her amended complaint that the defendant's negligent operation of a motor vehicle caused Mrs. Kendall severe personal injuries, resulting in her death by suicide. At a jury waived trial, evidence was presented with respect to the central issues of (1) whether the defendant was negligent and (2) whether the suicidal death of the plaintiff's decedent was causally related to the accident. After the trial, the judge filed findings resolving both issues in favor of the plaintiff and ordered entry of judgment for her. The defendant appealed. We transferred the appeal from the Appeals Court on our own motion. We affirm.

We summarize the pertinent facts, as found by the trial judge.

On the morning of November 30, 1971, the decedent Norma Kendall was involved in an automobile accident at the intersection of Ashland and Washington streets in the town of Abington. She was driving a 1971 International Scout automobile eastbound on Ashland Street. Lutfy, the defendant, was operating a 1971 Ford Econoline automobile southbound on Washington Street. The weather was clear and the roads were dry. A stop sign governed traffic entering Washington Street from Ashland Street. At the time of the accident, telephone trucks were parked near the intersection, obstructing to some degree the view of vehicles either traveling southbound on Washington, or entering Washington from Ashland.

As soon as Lutfy saw the Kendall vehicle, he applied his brakes and traveled about one length of his vehicle before the collision occurred. His van impacted the left front of the Kendall vehicle. The entire front of that car was bent to the right hand side or away from the driver's side. After the collision, the Kendall car spun around in the roadway. The judge found that the decedent had stopped at the stop sign before proceeding into the intersection and was entirely within the intersection at the time of collision, while Lutfy was only partially into the intersection. Further, he found Lutfy to be 60% Negligent.

Several years prior to the accident, from June, 1963, to December, 1965, the decedent had been hospitalized on four occasions for a mental disorder. The diagnostic impressions during those hospitalizations were as follows: Involutional psychotic reaction: paranoid type; Involutional psychotic reaction: most probably of a depressive type. However, from the time of her release from the Foxborough State Hospital in December of 1965 up to the date of the accident, the illness of the decedent was in remission. For several years prior to the accident she was employed as a librarian in Abington and had kept house for herself and her husband.

Immediately following the accident, the decedent got out of her vehicle and appeared to be in shock. She did not speak or respond to any remarks made to her. She appeared dazed and walked away from the scene. On the same day, she was taken to Goddard Hospital and then transferred to Foxborough State Hospital. She was completely psychotic and required physical restraint.

The medical records indicated she had sustained a contusion on her forehead and also leg injuries. She was belligerent, hostile, and uncooperative during most of her stay at the hospital. She remained there until December 17, 1971, when she was let out on an indefinite visit. On January 20, 1972, Norma Kendall took her life by means of self-inflicted cuts from a sharp razor.

On the issue of proximate causation, the judge found that (1) the decedent had had a preexisting illness diagnosed as paranoia which was in remission and had been for the six years preceding this accident, (2) the trauma and mental distress of the accident precipitated a recurrence of the illness, and (3) the suicide itself was an unpremeditated and spontaneous act resulting from that illness. The judge found for the plaintiff in the amount of $5,000 for conscious pain and suffering and $20,000 for wrongful death. ¹

The defendant contends that the judge's findings with respect to both the issues of negligence and proximate causation are unwarranted by the evidence, and require reversal of the judgment, or, at least, remand for a new trial. As the defendant recognizes, in nonjury cases such as the one before us, the rules provide that "(f)indings of fact shall not be set aside unless clearly erroneous . . . ." Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Marlow v. New Bedford, 369 Mass. 501, 508, 340 N.E.2d 494, 497 (1976), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). We think that no such mistake in fact-finding has been committed. Further, we think that the judge's ultimate findings of liability in the defendant are neither clearly erroneous nor inconsistent with the relevant legal standards. See Marlow v. New Bedford, supra at 508, 340 N.E.2d 494.

1. Sufficiency of the evidence as to the defendant's negligence. We cannot agree with the defendant's claim that the judge committed plain error in finding him 60% Negligent. Let a few points suffice. The judge found that Mrs. Kendall was entirely within the intersection at the point of collision, while Lutfy was only partially into the intersection. The testimony of one of the telephone repairman, a disinterested witness, formed part of the basis for this finding. Additionally, Lutfy testified that he had not entered the intersection when he impacted Kendall's vehicle.

The rule of right of way at intersections is set forth in G.L. c. 89, § 8. ² The clear inference from the testimony is that Mrs. Kendall entered the intersection first. However, her right of way was modified by the presence of a stop sign on Ashland Street at the intersection with Washington Street. The rule in such situations is that "(o)ne directed to stop by such a sign may not have the benefit of the general rule, if the rule grants him the right of way, until he has complied with the order to stop. After he has stopped, he again becomes subject to the general rule and may proceed and thereafter exercise the right of way in accordance with that rule." Canane v. Dandini, 355 Mass. 72, 75, 242 N.E.2d 854, 856 (1968).

The judge determined that Mrs. Kendall had stopped at the stop sign. ³ The defendant argues that this finding is clearly erroneous, based as it is on the investigating police officer's uncorroborated hearsay testimony that someone at the scene had so informed him. This testimony was elicited by the plaintiff on redirect examination and clarified by the defendant on recross. The defendant at no time made either an objection to the question or a motion to strike the answer. The consequence of the failure to object is to waive the objection to the testimony. Douglas v. Holyoke Mach. Co., 233 Mass. 573, 124 N.E. 478 (1919). W. B. Leach & P. J. Liacos, Massachusetts Evidence 72 (4th ed. 1967). Although the testimony doubtless would have been excluded on objection, in the absence of objection it retains its full probative force. Regan v. John J. Amara & Sons, 348 Mass. 734, 205 N.E.2d 705 (1965). O'Kane v. Travelers Ins. Co., 337 Mass. 182, 148 N.E.2d 397 (1958). Thus, the defendant's claim of clear error as to this finding by the judge is ill-founded.

The judge also determined that (1) the view of the intersection was obstructed, (2) Lutfy applied his brakes when he saw the Kendall vehicle, and then traveled about one length of his vehicle before the collision occurred, and (3) Kendall's car, impacted on the left front and damaged consistently with that impact, spun around in the roadway after the collision. Despite the defendant's protestations to the contrary, we think that these additional findings, supported by ample evidence in the record (including photographic exhibits), further substantiate the judge's determination of 60% Negligence in the defendant, for the reasons which follow.

The defendant contends there was no evidence that he was proceeding at an improper speed. We disagree. General Laws c. 90, § 14, as amended through St.1969, c. 54, § 2, sets forth the appropriate standard. In pertinent part, it states: "The person operating a motor vehicle on any way or a curve or a corner in said way where his view is obstructed shall slow down and keep to the right and upon approaching any junction of said way with an intersecting way shall, before entering the same, slow down and keep to the right of the center line." The record indicates that, despite the presence of the obstructing telephone vehicles at the intersection he was approaching, the defendant did not slow down until he actually saw the Kendall vehicle. ⁴ In view of the mandate of c. 90, § 14, and on the basis of both the testimony in the record and photographic evidence of the damage to the Kendall vehicle, the judge could reasonable infer that the defendant was operating his vehicle at an excessive rate of speed. See Fallovallita v. Johnsyn, 317 Mass. 153, 57 N.E.2d 532 (1944).

Thus, warranted as it is by a reasonable view of the evidence, and in light of the relevant statutory provisions, we find no error in the judge's determination of 60% Negligence in the defendant. See Russell v. Central Package Store, Inc., 359 Mass....