Garbincius v. Boston Edison Co.

• Decision Date: 28 May 1980
• Docket Number: 79-1376,Nos. 79-1365,s. 79-1365
• Citation: 621 F.2d 1171
• Parties: 6 Fed. R. Evid. Serv. 130 Peter P. GARBINCIUS, Administrator of the Estate of Paul C. Garbincius, Plaintiff-Appellee, v. BOSTON EDISON COMPANY, Defendant-Appellant-Appellee, and Charles Contracting Co., Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1171

621 F.2d 1171

6 Fed. R. Evid. Serv. 130

Peter P. GARBINCIUS, Administrator of the Estate of Paul C Garbincius, Plaintiff-Appellee, v. BOSTON EDISON COMPANY, Defendant-Appellant-Appellee and Charles Contracting Co., Inc., Defendant-Appellant.

Nos. 79-1365, 79-1376.

United States Court of Appeals, First Circuit.

Argued Feb. 5, 1980.

Decided May 28, 1980.

Cynthia J. Cohen, Cambridge, Mass., with whom Philander S. Ratzkoff, Charles W. O'Brien, Ellen S. Cooper, and Parker, Coulter, Daley & White, Boston, Mass., were on brief, for Charles Contracting Company, Inc.

Thomas D. Burns, Boston, Mass., with whom Lawrence B. Wernick, and Burns & Levinson, Boston, Mass., were on brief, for Boston Edison Company.

David A. Barry, Boston, Mass., with whom Anthony M. Doniger, Natasha C. Lisman, and Sugarman, Rogers, Barshak & Cohen, Boston, Mass., were on brief, for Peter P. Garbincius, et al.

Before ALDRICH and BOWNES, Circuit Judges, PETTINE, District Judge. ^**

BOWNES, Circuit Judge.

This diversity wrongful death action arises as a result of an accident in which Paul C. Garbincius, plaintiff's intestate, drove his automobile into an excavation on Commonwealth Avenue in Boston, dug by defendant-appellant, Charles Contracting Co., Inc. (Charles), pursuant to a contract with defendant-appellant, Boston Edison Company (Edison). The jury answered nine questions, finding that both defendants were negligent, that the culpability of Edison amounted to $100,000, that the culpability of Charles was $150,000, and that the comparative negligence of the parties was as follows: Charles 60%; Edison 35%; the decedent 5%. Judgment was rendered in favor of plaintiff against Charles in the amount of $142,500 and against Edison for $95,000. Edison had brought a cross-claim against Charles based on indemnity under Massachusetts law and by contract. Judgment was rendered in favor of Edison in the amount of $95,000 on its cross-claim. Both defendants have appealed.

The issues are as follows: (1) whether plaintiff had the legal capacity to sue; (2) whether it was error for the district court to admit certain testimony and evidence; (3) whether it was error to award judgment to Edison on its cross-claim; and (4) whether the trial court erred in its wording of the special question on the degree of comparative negligence of the parties.

We start on a sour note. Most of the issues we address involve Massachusetts law, yet none of the parties has complied with our local rule 11(h), which requires that citations to state cases include the National Reporter System. Since the writing judge does not have ready access to the Massachusetts Reports, he has had to do a lot of work that is the responsibility of counsel. This comment is particularly appropriate when parties cite only the Advance Sheets of the Massachusetts Appeals Court, which no federal judge should be expected to possess.

Capacity to Sue

Paul Garbincius died on November 17, 1973, as a result of the injuries received on November 11, 1973, when his car went into the excavation. On January 24, 1974, Peter Garbincius, Paul's father, was appointed administrator of his son's estate in New York, the state of the decedent's residence. In the complaint filed on June 7, 1974, it was alleged that plaintiff was the duly appointed administrator of the estate of Paul Garbincius. He was not appointed ancillary administrator in Massachusetts until March 30, 1979. Trial commenced on May 3, 1979. At the close of plaintiff's case, both defendants moved for a directed verdict on the ground that plaintiff lacked capacity under Massachusetts law to maintain the action. In a thoughtful and perceptive opinion, which we adopt, the district court denied the motions. The court looked to the rationale for requiring ancillary administration, i. e., to make sure that there be only one action and one recovery and to ensure that taxes and other debts owed by the decedent are paid, and correctly concluded that, since plaintiff was ancillary administrator at the time of trial, the state interests were fully protected. We also agree with the district court that the defendants waived any defects as to plaintiff's standing. Edison filed a general denial, but made no specific negative averment as required by Fed.R.Civ.P. 9(a). ¹ See Marston v. American Employers Insurance Co., 439 F.2d 1035, 1041 (1st Cir. 1971). Charles waived any defects by failing to raise the defense prior to trial at all.

The Admission of Testimony and Evidence

Both defendants claim that it was error for the court to allow George Kent to testify as an expert and give an opinion as to highway construction safety. In a diversity jurisdiction case, the Federal Rules of Evidence with respect to expert witnesses control. Gibbs v. State Farm Mutual Insurance Co., 544 F.2d 423, 428 n.2 (9th Cir. 1976). Cf. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (Fed.R.Civ.P.). Under Fed.R.Evid. 104, preliminary questions concerning the qualification of a potential witness are determined by the court. Fed.R.Evid. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Our standard of review of the trial court's determination of admissibility of expert opinion is the clearly erroneous test. Ignacio v. People of Territory of Guam, 413 F.2d 513, 520 (9th Cir. 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970); see 11 Moore's Federal Practice § 702.10(3) (1976).

Kent was a graduate civil engineer who had worked for the Interborough Rapid Transit Company in New York from 1929 to 1943, one and one-half years of which were spent investigating claims and accidents. His safety work had to do with controlling automotive traffic when supports for the elevated railway were being removed from the streets. He was also responsible for safety procedures to be followed when street excavations for repairing underground sewer lines and cables were dug. After that, he had extensive experience with Stone and Webster relative to the construction and operation of power plants. Prior to trial, Kent had studied publications on traffic safety procedures to be used during highway construction. He familiarized himself with photographs of the scene of the accident, the accident reports filed, and the depositions of investigating officials. We find that it was not clearly erroneous for the district court to have allowed Kent to give his opinion about the adequacy of the number and placement of the devices used for warning motorists of the excavation. While his work experience in traffic safety procedures during highway construction stopped in 1943, we think this background plus his engineering training and focussed study preparatory to trial made him, but just barely, a qualified witness whose testimony could assist the jury.

During his direct examination, Kent was allowed to read from two manuals which were subsequently marked as exhibits. One was the Manual on Uniform Traffic Control Devices, Part VI, Traffic Controls for Street and Highway Construction and Maintenance Operations by the Department of Transportation, Federal Highway Administration. The other was Chapter 39, Highway and Street Construction, part of the Manual of Accident Prevention in Construction published by the Associated General Contractors of America. The two documents were offered and received in evidence after Kent had read portions of them to the jury over the objections of defense counsel.

While it can be argued that reading from the booklets was permissible under Fed.R.Evid. 803(18), ² the rule expressly prohibits such material from being received as exhibits. However, the question of prejudice in every case depends upon the facts and, although the underpinnings of plaintiff's expert were shaky to the point of trembling and the admission of the manuals was clear error, a divided court believes that, on the record as a whole, the errors were harmless and not prejudicial. 28 U.S.C. § 2111; Fed.R.Civ.P. 61. There was testimony that on three sides of the excavation there were barricade planks six to eight feet above the street level, while the opening facing oncoming traffic only had two foot high barrier boards. There was also testimony from which the jury could have found that there was only one lighted caution sign warning of the excavation. A disinterested witness, called by the defendants, who was driving behind the decedent testified that there were two barricades (wooden horses) in front of the excavation. The jury, without the benefit of any expert opinion, could well have found that the placement and number of barricades were woefully inadequate. The undisputed testimony was that no one from Charles or Edison checked the position or location of any of the warning devices after they were put in place on Friday afternoon at the close of work. The accident occurred shortly after 1:00 A.M. on Sunday morning.

The Judgment on Edison's Cross-claim

There are two questions to be decided: whether Edison had a right to be indemnified under Massachusetts common law and/or whether the contract indemnification agreement between it and Charles was valid. We address first the issue of common law indemnity. It seems settled in Massachusetts that "ordinarily one who has defended and lost an action of tort for his own negligence cannot recover for indemnity against another." Ford v. Flaherty, 364 Mass. 382, 305 N.E.2d 112, 115 (1973). But indemnity is allowed where there is vicarious liability. Indemnity is permitted only when one does not join in the negligent act but is exposed to derivative or vicarious liability for the wrongful act of another. In such cases the court has held that plaintiffs in the indemnity...