Hurnanen v. Nicksa

• Decision Date: 23 October 1917
• Citation: 228 Mass. 346,117 N.E. 325
• Parties: HURNANEN v. NICKSA. SAME v. GARDNER AUTO CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 346

117 N.E. 325

HURNANEN

v.NICKSA.

SAME

v.GARDNER AUTO CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 23, 1917.

Exceptions from Superior Court, Worcester County; George A. Sanderson, Judge.

Two actions by Frank Hurnanon, administrator, against Bronislaw Nicksa and against the Gardner Automobile Company. Verdicts for defendants, and plaintiff brings exceptions. Exceptions overruled.

See, also, 225 Mass. 189, 114 N. E. 198.

John G. Annala and Alvah M. Levy, both of Fitchburg, for plaintiff.

Jos. P. Carney and Herbert W. Blake, both of Gardner, for defendants.

PIERCE, J.

These are actions of tort which were tried together.

The declaration in the first case contains two counts; the first count alleging the plaintiff's interstate's due care and the negligence of the defendant in operating an automobile in Gardner on September 11, 1915, and while so negligently operating, the automobile collided with the plaintiff's intestate, who was thereby killed. The second count is for conscious suffering, alleging the plaintiff's intestate's due care and the defendant's negligence in the operation of his automobile. The answer is a general denial, with an allegation of the plaintiff's intestate's contributory negligence. These issues were tried to a jury, which found for the defendant.

The declaration in the second case contains two counts; the first one being for the death of the plaintiff's intestate, caused by a collision with the defendant's automobile, alleging the plaintiff's intestate's due care and the defendant's negligence in operating and negligently suffering it to be operated without having the automobile properly registered. The second count alleges a collision with the defendant's automobile, the plaintiff's intestate's due care, the defendant's negligence in operating an automobile, that the automobile had not been properly registered, and the conscious suffering of the intestate. The answer is a general denial, with an allegation of the plaintiff's contributory negligence.

[1] At the close of the evidence in the action against the automobile company, the presiding judge granted a motion to direct a verdict for the defendants and submitted the following special questions to the jury:

‘First. Was Matti Hurnanen [the intestate] in the exercise of due care?

‘Second. Was the accident caused by the negligence of Bronislaw Nicksa, the operator of the automobile?

‘To both of these questions the jury answered ‘No,’ and returned a general verdict for the defendant.'

This procedure was correct. Edwards v. Worcester, 172 Mass. 104, 51 N. E. 447;Burke v. Hodge, 211 Mass. 156, 162, 97 N. E. 920, Ann. Cas. 1913B, 381. See also St. 1913, c. 716.

It was in evidence that the Gardner Automobile Company, a corporation engaged in the business of selling automobiles, on May 27, 1915, delivered to the defendant, Bronislaw Nicksa, an automobile under an agreement reading as follows:

‘This agreement, made this 27th day of May, A. D. 1915, between the Gardner Auto Company, a corporation having a usual place of business in Gardner, in the county of Worcester, and commonwealth of Massachusetts, as lessor, and Bronislaw Nicksa, of Gardner, Mass., as lessee, witnesseth:

‘That in consideration of the agreements of the lessee hereinafter mentioned, the lessor does hereby lease for the term of 1 1/2 years from this date, and agree to deliver forthwith to the lessee one automobile manufactured by Ford Motor Co., style, touring Model T, manufacturer's number 677065, upon the following terms and conditions:

‘That said automobile shall remain the property of the lessor and shall not be removed from the town of Gardner, Massachusetts, without the written consent of the lessor or until it shall have executed and delivered a bill of sale thereof to said lessee.

‘That said lessee shall pay to the lessor for the use of said automobile as follows: Twenty-five dollars per month payable on the first of each month until the full sum of three hundred seventeen 70/100 dollars, with interest at the rate of six per centum shall have been paid to the lessor, all of which shall constitute and only be as rent for the use of said automobile, and when said sum has been paid in full with interest as aforesaid, the lessee may use said automobile free of charge for the balance of said term.

‘The lessee promises to pay said rent in the amount and upon the terms specified, to keep the automobile fully insured for the benefit of the lessor and not to suffer any injury to be done to said automobile (reasonable wear and tear excepted), nor to lease or underlet the same to any person or persons; also to pay any damage caused to any other person or corporation or the property of any person or corporation by said automobile while in the possession of the lessee.

‘It is further agreed that upon the failure of the lessee to make said payments or any of them, it shall be lawful for the lessor or its agent or attorneys to take possession of said automobile wherever it may be, and in case any of the conditions of this agreement shall be violated by the lessee, the payments to be made thereon...