Hobart v. O'BRIEN, 5172

• Decision Date: 22 April 1957
• Docket Number: No. 5172,5173.,5172
• Citation: 243 F.2d 735
• Parties: Harold HOBART, Defendant, Appellant, v. Michael P. O'BRIEN, Plaintiff, Appellee. Harold M. HOBART, Plaintiff, Appellant, v. John G. DONOVAN et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

243 F.2d 735 (1957)

Harold HOBART, Defendant, Appellant, v. Michael P. O'BRIEN, Plaintiff, Appellee.

Harold M. HOBART, Plaintiff, Appellant, v. John G. DONOVAN et al., Defendants, Appellees.

Nos. 5172, 5173.

United States Court of Appeals First Circuit.

April 22, 1957.

COPYRIGHT MATERIAL OMITTED

Thomas H. Mahony, Joseph G. Bryer, Boston, Mass., on the brief, for Harold Hobart, appellant in No. 5172.

Michael Prendergast, Reuben Nitkin, Boston, Mass., on the brief, for Michael P. O'Brien, appellee in No. 5172.

Philip B. Buzzell, Charles M. Ewing and Hemenway & Barnes, Boston, Mass., on the brief, for Harold Hobart, appellant in No. 5173.

Philander S. Ratzkoff, Robert N. Daley and Parker, Coulter, Daley & White, Boston, Mass., on the brief, for John G. Donovan and others, appellees in No. 5173.

Before WOODBURY and HARTIGAN, Circuit Judges, and FORD, District Judge.

HARTIGAN, Circuit Judge.

These appeals are from final judgments based upon jury verdicts in personal injury actions, entered in the United States District Court for the District of Massachusetts on December 13, 1955, one (No. 5172) ordering that plaintiff-appellee, Michael P. O'Brien, recover of the defendant-appellant, Harold M. Hobart, in the sum of $61,000 with interest thereon from June 26, 1952 totalling $12,677.83, and the other (No. 5173) denying the claim for recovery of plaintiff-appellant, Harold M. Hobart against defendants-appellees John G. Donovan and Michael P. O'Brien. Subsequent to judgment a remittitur of $13,000 was made by appellee O'Brien in accordance with an order of the court.

The litigation arose out of a collision of a tank truck owned by appellee John G. Donovan, d.b.a. the Utility Oil Co., and driven by his employee, appellee O'Brien, and an automobile owned by Irma B. Hobart and driven by her husband, appellant Hobart, on Route 2 in Concord, Massachusetts, on June 21, 1952. Jurisdiction was based upon diversity of citizenship.

By a complaint filed June 26, 1952 appellee O'Brien alleged that appellant Hobart negligently drove a motor vehicle so that it collided with the motor vehicle being operated by O'Brien. In a complaint filed May 8, 1953 appellant Hobart alleged that appellee Donovan and his employee, appellee O'Brien, negligently drove a motor vehicle on the aforementioned public highway against Hobart who was then driving on said highway. The two actions were consolidated for trial.

In seeking reversal of the judgment entered for appellee O'Brien, Hobart, as defendant-appellant, asserts that the trial court erred in refusing to grant (1) his motion for summary judgment, (2) his motion for directed verdict and (3) his motion for judgment n.o.v. or a new trial. In addition, Hobart assigns as error certain rulings of the trial court on evidence, excessive damages and the allowance of interest from the date of the writ.

In seeking reversal of the judgment denying his claim for recovery, Hobart, as plaintiff-appellant, asserts that the trial court erred in refusing to grant his motion for new trial and assigns as error certain rulings of the trial court on evidence. Since the two appeals to some extent turn on similar issues, we shall treat them both in this opinion.

The record shows that in the early afternoon of June 21, 1952 Hobart was traveling west on a section of Route 2 that was comprised of three lanes. As he approached the town line between Concord and Acton, approximately one quarter of a mile east of the scene of the accident, he observed indications of construction going on and found the northern lane obstructed by warning signs, dirt, materials and equipment. By reason of these obstructions he went into the middle lane. Traveling behind him some fifty feet was an automobile driven by Robert Whitney, a witness at the trial.

O'Brien, driving a tank truck in the course of his duty as an employee of Donovan, was traveling east in the southern lane of this highway. As Hobart and O'Brien approached and went to pass each other their vehicles collided. The truck and automobile, as a result of the collision, ended up against a guard rail on the northern lane, Hobart's car facing south and the truck facing northeast.

Hobart, in describing the accident, testified that he was traveling 25-30 miles an hour, that he at all times remained in the center lane and that when the O'Brien truck was four or five car lengths away it left the southern lane and came into the center lane at an angle, colliding with his automobile. At one point in the trial Hobart said it was the truck's right bumper that hit his left front bumper. Later he changed this testimony, stating that it was the left front side of the truck that collided with the left front side of his automobile. Irma B. Hobart, the appellant's wife, who was riding in the automobile with him gave the same general description, except that she testified specifically that the left front of the truck hit the left front of the Hobart automobile.

O'Brien, on the other hand, testified that he was traveling approximately 25 miles an hour, that he was on the "right side" of the road and that the Hobart car came towards him, hitting the left front side of his truck. He further testified that the force of the collision pulled the wheel out of his hands and "swung the truck completely around," throwing him to the right side of the cab.

On cross-examination O'Brien testified as follows:

"X-Q. You have said, at one time, have you not, that the Hobart car was in its right lane, in the center lane, have you not? A. I said the right lane.

"X-Q. Was it in its right lane? A. Yes, that\'s right.

"X-Q. And that, at the time of the collision? A. No, not at the time of the collision."

Joseph Mullaney, a co-employee of O'Brien who was riding with him in the truck, testified that he was looking out the window to his right and did not see the Hobart automobile prior to the moment of impact. But he did state that "there was a crash" and the truck swerved to the left, throwing O'Brien on his lap.

Whitney, who was traveling some distance behind Hobart, on direct examination stated that Hobart was driving in the center lane at the time of the collision and that the O'Brien truck, traveling with the two left wheels in the center lane, drove into the Hobart automobile. However, on cross-examination he stated that the Hobart automobile turned to the left immediately prior to the accident, and that the collision occurred as it was turning.

Whitney's wife, who was riding with her husband, testified on direct examination that the O'Brien truck came into the center lane and hit the Hobart automobile, but, on cross-examination, she could not say whether the Hobart automobile turned or did not turn to the left at any time.

In addition to these eye-witnesses there was testimony from three state police officers who testified and submitted photographs as to the location and condition of the vehicles immediately following the accident and as to statements made by the parties at that time; the superintendent of the Concord Water and Sewer Department who described the nature of the construction and obstructions on the highway on that date; and an array of medical witnesses.

The rulings of the trial court and the evidence will be further developed in discussing the errors asserted by the appellant, which we now proceed to consider.

Mass.Ann.Laws, c. 152, § 15 (1949), in pertinent part, provides:

"* * * Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages or against the insurer for compensation under this chapter, but, except as hereinafter provided, not against both. If compensation be paid under this chapter, the insurer may enforce in the name of the employee or in its own name and for its own benefit, the liability of such other person, and if, in any case where the employee has claimed or received compensation within six months of the injury, the insurer does not proceed to enforce such liability within a period of nine months after said injury, the employee may so proceed. * * * An employee shall not be held to have exercised his option under this section to proceed at law if, at any time prior to trial of an action at law brought by him against such other person, he shall after notice to the insurer discontinue such action, provided that upon payment of compensation following such discontinuance the insurer shall not have lost its right to enforce the liability of such other person as hereinbefore provided. * * *"

O'Brien, after filing his complaint on June 26, 1952, entered into an agreement on August 8, 1952 with his employer's insurer whereby the insurer agreed to pay him the benefits provided by the Massachusetts Workmen's Compensation Act for the injuries received in the accident. Accordingly, O'Brien received weekly payments, effective retroactively to June 23, 1952, until July 21, 1954 when his case was closed under a lump sum payment. It was stated to the district judge at trial that upon O'Brien's agreement to receive workmen's compensation benefits, a duly authorized agent of the insurer "stated that he then wanted Mr. Nitkin O'Brien's counsel to understand that they were to be subrogated to the O'Brien case, which was then pending in the Federal Court and that he then wanted Mr. Nitkin to handle the case from then on on behalf of the insurer and as their attorney and that in due course if and when any moneys were received as a result of the case * * the moneys were to be divided in accordance with Chapter 152, Massachusetts General Laws." It was further stated by an officer of the insurer "that no further actions of any kind or nature by way of new suits or new claims or other types of legal proceedings other than whatever may be necessary by way of appealing...