Lekarczyk v. Dupre
| Citation | 265 Mass. 33 |
| Parties | ANDREW LEKARCZYK, administrator, v. GEORGE D. DUPRE. |
| Decision Date | 20 November 1928 |
| Court | United States State Supreme Judicial Court of Massachusetts |
September 19, 1928.
Present: RUGG, C.
Negligence, Motor vehicle, Contributory, In use of highway, Causing death. Evidence, Competency, Of ownership of business, Of insurance. Practice, Civil, New trial. Damages, In tort.
At the trial of an action of tort by an administrator for causing the death of the plaintiff's intestate, the evidence in substance showed that the intestate, on an afternoon in June when it was "very stormy, raining and blowing pretty hard," was crossing a public way holding an umbrella against the wind, which was blowing from his right, when he was struck by the defendant's truck which came from his left over a straight and level street with a roadway twenty-eight feet wide at the speed of thirty to thirty-five miles an hour that by the force of the blow the skull of the intestate was fractured, one of his legs was broken in two places, his body was thrown onto the hood of the truck and was carried about ninety feet, then rolled off into the street and was run over by the truck, which ran eighty feet farther before it stopped; and that when the intestate started to cross the street, the truck was two hundred feet away from him. The driver stated that he could see the whole road, that the rain did not bother him, that he thought it was dangerous to drive at a speed greater than fifteen miles per hour and that going at that rate under the conditions he could stop within fifteen to twenty feet. Held, that
(1) A finding was warranted that the driver of the truck was negligent;
(2) A finding was warranted that the plaintiff's intestate was not guilty of contributory negligence.
At the trial of the action above described, it appeared that the defendant was the owner of the truck and that it was being driven by his brother.
The defendant contended that the brother was acting as an employee, not of the defendant, but of his mother, who, he further contended was the proprietor of a bakery business in which the truck was being used. It was admitted that the driver at the time of the collision was acting within the scope of his employment and in furtherance of the business of the owner of the bakery. The issue was directly raised, whether the defendant was the owner or had an owner's interest in the bakery. The defendant testified that he bought the truck "to be used in the baking business and not for anything else, and it was not used for anything else," and, in an application for liability insurance as to it, stated that his business was "baker," and that the truck was to be used for transportation of merchandise incidental to his business. Held, that
(1) It was proper to admit in evidence testimony of an insurance agent to the effect that a few months before the accident, at the request of the defendant, he renewed a policy of insurance indemnifying the defendant against loss or damage from accidents arising from the operation or use in the bakery business of the truck involved in the accident, and that such policy was in force at the time of the accident;
(2) It also was proper to admit evidence that the defendant's mother, who lived with her husband and sons, had not caused to be recorded under
G.L.c. 209, Section 10, a married woman's certificate for the year in which the accident occurred;
(3) It was proper to exclude evidence that three years before the accident a third person had executed a bill of sale to the defendant's mother of a one-half undivided interest in the bakery business and the appliances and utensils, where the record disclosed no statement that the bill of sale was delivered or that the mother was present when the bill of sale was signed, nor any fact to show her connection with the transaction, other than the statement of the attorney: "I knew . . . [the mother] at that time."
There was no abuse of judicial discretion in the denial of a motion for a new trial of the action above described based on the ground that the damages awarded, $9,000, were excessive.
TORT by the administrator of the estate of Franciszek Szczygiel for causing the death of the plaintiff's intestate through negligence on June 1, 1925. Writ dated September 18, 1925.
In the Superior Court, the action was tried before Irwin, J. Material evidence and exceptions saved by the defendant are stated in the opinion. There was a verdict for the plaintiff in the sum of $9,000. A motion of the defendant for a new trial on the ground that the verdict was against the evidence and the weight of the evidence, and that the damages were excessive, was denied by the trial judge. The defendant alleged exceptions.
The defendant, in his brief before this court, relied, so far as his exception to the denial of the motion for a new trial was concerned, only on the ground that the damages were excessive.
W.H. Brooks, J.P. Kirby & E.S. Searle, for the defendant, submitted a brief.
T.C. Maher, (J.A. Frankowski with him,) for the plaintiff.
This is an action of tort to recover damages for the death of Franciszek Szczygiel, the plaintiff's intestate, alleged to have been caused by the negligent operation of a Ford automobile truck by one Louis Dupre, who, it was alleged, was an employee of the defendant. A second count for conscious suffering was waived at the trial. The defendant's answer is a general denial and the contributory negligence of the plaintiff's intestate.
The case is before this court on exceptions taken by the defendant to the refusal by the trial judge, at the close of all the evidence to direct a verdict for the defendant; to the admission in evidence on behalf of the plaintiff of an insurance policy and application therefor insuring George Dupre against liability, as owner of the automobile which figured in the accident; to the admission of the evidence of the town clerk of Easthampton, that Mrs. Dupre, mother of George, had not filed a married woman's certificate in the office of the town clerk of Easthampton; and to the refusal by the judge to admit on behalf of the defendant a bill of sale of a bakery business and the appliances and utensils to Mrs. Dupre. All the material evidence is contained in the bill of exceptions.
At the trial it was not in dispute that the plaintiff's intestate came to his death through a collision, on Everett Street in Easthampton, with a Ford automobile truck, owned by the defendant, registered in his name, and operated by Louis Dupre, a brother of the defendant, while acting within the scope of his employment in "Dupre's Bakery" business.
On the motion for a directed verdict, the evidence upon the issue of the intestate's due care and the negligence of the driver of the car, in its aspect most favorable to the plaintiff warranted the jury in finding the following facts: The intestate at the time of the collision was a man about thirty-eight years old, about six feet tall, and weighed about one hundred seventy-five pounds. Everett Street in Easthampton is a public highway running easterly and westerly and is straight and level for a distance of several hundred feet easterly from the place of the accident. It is forty feet wide, the roadway being twenty-seven or twenty-eight feet wide. There is a row of buildings on the southerly side...
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