Landry v. Gomes

• Decision Date: 25 November 1930
• Citation: 173 N.E. 428,273 Mass. 225
• Parties: LANDRY et al. v. GOMES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 225

173 N.E. 428

LANDRY et al.

v.GOMES.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 25, 1930.

Report from Supreme Judicial Court, Bristol County.

Proceedings by George E. Landry and others against Michael R. Gomes, as administrator of the estate of Raymond L. Gomes, deceased. On writ of error on the report of a single justice in accordance with Rule 30 of the Rules of the Supreme Judicial Court.

Decree in accordance with opinion.

J. T. Kenney, of New Bedford, for plaintiffs.

David Radovsky of Fall River, for defendant.

RUGG, C. J.

This writ of error comes before us on report by a single justice in accordance with Rule 30 of the Rules of the Supreme Judicial Court for the Regulation of Practice at Common Law (1926), adopted pursuant to G. L. c. 250, § 2, whereby the practice stated in Perkins v. Bangs, 206 Mass. 408, 92 N. E. 623, was changed. Platt v. Commonwealth, 256 Mass. 539, 541, 152 N. E. 914. The proceeding seeks reversal of a judgment of the superior court in an action of tort brought by the present defendant in error as administrator of the estate of Raymond L. Gomes, deceased, as plaintiff, against the present plaintiffs in error, as defendants, to recover damages arising out of an automobile accident alleged to have caused conscious suffering and death to said decedent. It appears by the return of record that, at the Superior Court holden at Taunton, within and for the county of Bristol, on the 20th of September, 1929, in Gomes, Admr. v. Landry et al., the jury found for the plaintiff and assessed damages in the sum of $5,000 for the death and $1,000 for the conscious suffering of said decedent; that, after the rendition of the verdict and in making up the judgment, the clerk added to the sum of $6,000, being the total amount found by the jury, interest from the date of the writ to the date of the verdict amounting to $1,124.28. The jury had not been directed by the court to add interest to the damages found for the death and suffering and the jury did not add any interest from the date of the writ, but the clerk according to his practice added such interest. On February 18, 1930, by virtue of an execution on the judgment thus entered, levy was made upon real estate of the plaintiff in error Vigneault, and the real estate was sold to an attorney in the office of the attorney for the plaintiff for the sum of $3,500, and from the proceeds of said sale the execution was satisfied to the extent of the sum of $3,464.48.

It was held in Fidelity & Casualty Co. of New York v. Huse & Carleton, Inc. (Mass.) 172 N. E. 590, decided since this case was reported by the single justice, that under G. L. c. 229, § 11 it was the duty of the jury to add interest as a part of their verdict, and that the addition of interest by the clerk according to pre-existing statutes, see Nugent v. Boston Consolidated Gas Co. 238 Mass. 221, 238, 130 N. E. 488, was no longer permissible. It there was said at page 593 of 172 N. E.: ‘It was the duty of the judge by appropriate instructions to make plain to the jury that after ascertaining the initial amount of damages...