Herlihy v. Kane
| Decision Date | 30 December 1941 |
| Citation | 310 Mass. 457,38 N.E.2d 620 |
| Parties | HERLIHY v. KANE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Bristol County; Hurley, Judge.
Proceeding by Dennis Herlihy against Jacob Kane to vacate a judgment rendered against the petitioner in an action brought by him against the respondent for injuries sustained when the petitioner was struck by an automobile driven by respondent. On respondent's exceptions.
Exceptions overruled.
Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.
T. F. O'Brien, of New Bedford, for petitioner.
J. G. Ashe, of Boston, for respondent.
This is a petition to vacate a judgment rendered against the petitioner on June 12, 1939, in an action brought by the petitioner against the respondent for personal injuries sustained by the petitioner when struck by an automobile driven by the respondent.
In the original action the court had nonsuited the plaintiff (the present petitioner) on March 20, 1939, for failure to answer interrogatories propounded by the defendant (the present respondent), with the condition that the nonsuit ‘be vacated as of course’ if answers were filed within twenty days. Later the time for filing the answers was extended until June 1, and the answers not then being filed, judgment for the defendant (respondent) followed.
The respondent excepts to the denial of his motion to dismiss the petition, filed at the close of the evidence at the hearing on the petition, and to the refusal of the judge to give requests for rulings to the effect (1) that the petition on its face fails to set forth sufficient ground to vacate a judgment, (2) that the evidence failed to show that the petitioner had a meritorious cause of action, and (3) that ‘On all the facts adduced in evidence the petition must be dismissed.’
The respondent's motion to dismiss and the request numbered (3) above may be taken as raising the question whether a sufficient cause was disclosed at the hearing to justify the judge's exercise of his discretion in favor of vacating the judgment. There was evidence that the petitioner had sustained a very serious injury, including the fracture of ten of the bones of his body and a cerebral concussion and shock; that he was in a hospital five months, during which time his mental state was ‘otherwise than normal’; that after his discharge from the hospital ‘his condition was not normal’; that he was ‘non-cooperative,’ ‘disoriented,’ and ‘wouldn't listen to questions, or reason, or anything else’; that the accident was at least a contributing cause of this condition; and that answers to the interrogatories were finally procured from the petitioner by his counsel with the assistance of his physician on January 17, 1940, after his mental condition had improved somewhat, although two or three months before he had refused to answer them and did not then appear to understand them. The judge found that as a result of the petitioner's abnormal mental condition it was impossible for his counsel to secure the answers before the judgment was entered, and that the petitioner's failure to answer which resulted in the judgment against him ‘was due to accident and mistake, to a genuine misunderstanding resulting from his abnormal mental condition,’ and that it was not due to inadvertence or neglect.
The finding that it was impossible to secure the petitioner's answers before the judgment was entered was warranted by the evidence. Whether the failure to answer could also properly be found to have been ‘due to accident or mistake’ is immaterial. General Laws (Ter.Ed.) c. 250, § 15, under which this petition is filed, makes no attempt to prescribe the causes for which a judgment may be vacated. Those causes are not necessarily limited to accident or mistake. The granting of such a petition ‘is addressed largely although not exclusively to the sound discretion of the court.’ Russell v. Foley, 278 Mass. 145, 148, 179 N.E. 619, 621, and cases cited. We have no doubt that it is within the discretion of the court to vacate a judgment which has been brought about as the result of an abnormal mental condition of the party against whom it was rendered and who was not represented by a guardian or a guardian ad litem. It would seem that a misfortune of this kind belongs within the class for...
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...a judge's exercise of discretion to vacate a judgment where a petition is brought within the one-year limit. See Herlihy v. Kane, 310 Mass. 457, 459, 38 N.E.2d 260 (1941). Under the statutory language we think the judge here was given no power to exercise such discretion after that time. Se......
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