Johnson v. Johnson

Decision Date24 May 1939
Citation21 N.E.2d 224,303 Mass. 204
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Exceptions from Superior Court, Essex County; Burns, Judge.

Action of tort by Gertrude G. Johnson against Alexander Johnson to recover compensation for personal injuries. Defendant's motion that action be dismissed was allowed, and plaintiff brings exceptions.

Exceptions overruled.

Weston U. Friend, of Gloucester, for plaintiff.

J. F. A. Daly, of Boston, and J. Z. Doherty, of Woburn, for defendant.

FIELD, Chief Justice.

This is an action of tort to recover compensation for personal injuries sustained by the plaintiff when the automobile in which she was riding collided with a tree. The declaration is in two counts-one, alleging negligence, the other, gross negligence, of the defendant in operating the automobile. The accident occurred in the State of Maine. The case was heard by a judge of the Superior Court sitting without a jury. At the hearing it was agreed that the plaintiff, at that time and at the time of the accident, was the wife of the defendant. The plaintiff offered in evidence a motor vehicle liability insurance policy issued to the defendant covering accidents occurring outside of Massachusetts. The policy was excluded and the plaintiff excepted. The defendant moved that the action be dismissed. The motion was allowed and the plaintiff excepted. The bill of exceptions states that the ‘pleadings may be referred to and are made a part of this bill of exceptions,’ and that it ‘contains all of the evidence material to the questions presented thereby.’

The plaintiff contends that, though she is the wife of the defendant, she can maintain this action against him by reason of the existence of the liability insurance. But it is unnecessary in this case to decide whether, according to the law either of this Commonwealth or of Maine, the existence of such insurance enables a wife to maintain an action against her husband for negligent operation of an automobile. Compare Lubowitz v. Taines, Mass., 198 N.E. 320;Luster v. Luster, Mass., 13 N.E.2d 438;Sacknoff v. Sacknoff, 131 Me. 280, 161 A. 669.

The bill of exceptions does not set forth any evidence of negligence of the defendant that would support an action against him even if he was not the husband of the plaintiff. A copy of an auditor's report has been transmitted to this court by the clerk of the Superior Court. See G.L. (Ter.Ed.) c. 231, § 135. This report, however, is not incorporated in the bill of exceptions or even referred to therein. It is not one of the ‘pleadings' so incorporated. And there is nothing before us to show that it was introduced in evidence at the hearing in the Superior Court. Yet even if it is...

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