Leone v. Doran

• Decision Date: 22 January 1973
• Citation: 363 Mass. 1,292 N.E.2d 19
• Parties: Veronica A. LEONE v. Richard R. DORAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 19

292 N.E.2d 19

363 Mass. 1

Veronica A. LEONE v. Richard R. DORAN et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Nov. 8, 1972.

Decided Jan. 22, 1973.

James W. Smith, Framingham (James J. Twohig, George A. McLaughlin, Sr., and George A. McLaughlin, Jr., Boston, with him), for defendant Patrick J. McDonough.

Lovell S. Spaulding, Boston, for plaintiff.

Before TAURO, C.J., and REARDON, HENNESSEY, KAPLAN, and WILKINS, JJ.

HENNESSEY, Justice.

This is an action in tort to recover damages for personal injuries sustained by Veronica A. Leone (the plaintiff) against the defendants, Richard R. Doran, John F. Ridge and Patrick J. McDonough. The three defendants joined in the consolidated bill of exceptions which is now before us. The plaintiff brought this action through her mother and next friend, Veronica M. Cadose. The accident in which the plaintiff sustained her injuries resulted from a collision of two automobiles, one driven by the defendant Doran and the other by the plaintiff.

The action against McDonough is based solely on the claim that the automobile which was driven by Doran was either owned or controlled by McDonough and that he had allowed Doran to operate the motor vehicle in violation of c. 90 of the General Laws. No claim was made that McDonough was present in the automobile when the accident occurred, and a count against McDonough based upon a theory of an agency relationship between him and Doran was waived by the plaintiff in open court.

At the close of the evidence, McDonough moved for a directed verdict which was denied and an exception was saved. The jury returned a verdict against each of the defendants for $650,000. After the return of the verdicts, the judge reserved leave under G.L. c. 231, § 120. Subsequently, McDonough moved for the entry of a verdict in accordance with leave reserved, the motion was denied and an exception was saved. McDonough's motion for a new trial was also denied. The case comes to this court principally upon exceptions taken by McDonough to the denial of his motions for a directed verdict and for entry of a verdict under leave reserved; to the denial of his motion for a new trial; to numerous alleged errors on the part of the trial judge in her rulings relative to the introduction of evidence and allowance of exhibits; to her refusal to make a statement to the jury correcting misstatements made by the plaintiff's counsel in his closing argument; and to numerous alleged errors on the part of the trial judge in her instructions to the jury.

The defendants Ridge and Doran joined in the bill of exceptions, and asserted numerous exceptions. Neither Ridge nor Doran has filed a brief with this court, nor has any motion for extension of time or other relief been filed with this court. It is appropriate for us to dismiss the bill of exceptions as to Ridge and Doran and to direct that judgment shall enter for the plaintiff on the jury verdicts against Ridge and Doran, and we have entered that order at the conclusion of this opinion. Accordingly we have reviewed only the exceptions asserted by McDonough.

In so far as we can do so from the confused record, we summarize certain of the facts, with emphasis on the evidence which bears on the alleged legal responsibility of McDonough.

The plaintiff was seriously injured in a collision of two automobiles at an intersection in Scituate on August 11, 1962. The plaintiff was the operator of one of the vehicles and the other automobile was driven by Doran. There was evidence which tended to show that Doran was operating the vehicle while under the influence of intoxicating liquor, that he drove into the intersection without stopping at a stop sign, and that he may have been in other respects operating the automobile in violation of law.

The principal evidence as to McDonough's alleged ownership or control of the automobile driven by Doran was as follows. The automobile was registered in the name of the defendant Ridge. Ridge purchased the automobile from Stilphen Motors in Dorchester in 1960. In purchasing the automobile, Ridge traded in his 1956 Ford and agreed to pay instalments totaling $2,139. Ridge alone paid the instalments on the automobile. Ridge alone paid the excise taxes on the automobile. The automobile was insured in the name of Ridge. Ridge never gave McDonough, or any member of his household, a duplicate set a keys to the automobile. Prior to the accident, the automobile was on many occasions parked in front of McDonough's house. A Governor's Council plate was seen attached to the automobile prior to the accident on various occasions and was found on the ground at the scene of the accident. McDonough was a member of the Governor's Council and knew Ridge had the plate. On various occasions the automobile was seen being driven by Ridge and Doran and less frequently by the two sons of McDonough, and once or twice by McDonough himself. McDonough was occasionally a passenger in the automobile. Ridge worked periodically for McDonough in 1961 and early 1962 and on occasion ran errands for McDonough. In 1961 and 1962, gas and regular service for the car were purchased on the credit of P. J. McDonough Insurance Agency, Inc. at a gasoline station operated by Herbert Carl. Ridge is related to McDonough and during the summer and fall of 1961 Ridge slept at the McDonough residence approximately three nights each week. During the summer of 1962 he stayed three or four days a week. Ridge also testified that he used McDonough's Governor's Council plate in order to obtain parking privileges around the State House. McDonough regularly used automobiles which he had leased, and these vehicles were not registered in his name. McDonough was in the insurance business.

It appears that the only evidence offered as to Doran's incompetence as a driver, and McDonough's knowledge thereof, was the testimony of several witnesses who stated Doran's reputation in the community of Scituate as: 'a reputation for drinking, and being a reckless driver, fast driver'; 'a wild kid . . . wild boy'; 'driving automobiles around the town at fast rates of speed, and driving while intoxicated'; 'noted to have a heavy foot . . . speeding . . . known to drink quite excessive (sic).' It was shown that McDonough had been a summer resident of that community for many years prior to the accident.

1. The trial of this action consumed more than five weeks. It generated a transcript of more than 3,500 pages, and more than 800 exceptions were claimed by the defendants. The trial judge died after the trial. The bill of exceptions and the contents of the record on appeal were settled, with great difficulty, by another Superior Court judge.

McDonough asks that judgment be entered for him on the ground that the judge was in error in failing to allow his motions for directed verdict and for entry of a verdict under leave reserved. Alternatively, McDonough asks that he be granted a new trial.

We have found numerous errors prejudicial to McDonough in the rulings of the judge. These concerned rulings on evidence, instructions to the jury, and the failure to cure the unfair tactics of the plaintiff's counsel in the presentation of evidence and argument to the jury. Chief among these errors, as more particularly described later in this opinion, were the rulings related to whether McDonough must be shown to have had actual prior knowledge of the operator Doran's incompetence or his violation of law.

We conclude that justice will best be served if we now order a new trial of the action against McDonough upon all issues. We are unable for several reasons to give appropriate consideration to McDonough's contention that he is entitled, by reason of the insufficiency of the proof against him, to have judgment ordered in his favor. The record before us, partly by reason of the judge's death, is not dependable. It is obvious that the judge's erroneous rulings on evidence guided the proof of the case into incorrect channels from almost the beginning of the trial. At several important junctures in the transcript of proceedings it is uncertain, from the nature of the testimony as appraised in the light of the judge's rulings and the defendant's exceptions, what the net effect in proof was.

From the foregoing appraisal it is clear that, in awarding a new trial rather than ordering judgment for McDonough, we intend no implied ruling as to whether the plaintiff sustained her burden of proof on any one of the vital issues in the case.

We turn now to a consideration of the principal issues which may recur at a new trial of the case.

2. Ownership or Control; Permission.

In subsequent discussion in this opinion, we state that a defendant's negligence may be inferred (1) by reason of his violation of G.L. c. 90, § 12, or (2) aside from any violation of the statute, by reason of his knowingly allowing an incompetent operator to drive the defendant's vehicle. In either case, it is necessary for the plaintiff to show, among other things, that the defendant owned or controlled the motor vehicle concerned, and that the defendant gave the driver permission to operate the vehicle.

There is no requirement to show, as in a case relying on a master and servant relationship between defendant and operator, that the defendant had the right to control the operator's general activities. See Konick v. Berke, Moore Co. Inc., 355 Mass. 463, 467, 245 N.E.2d 750. There is a necessity to show ownership of the vehicle by the defendant, or at least to show that he had such a sufficient proprietary interest as to permit the use of the vehicle by others. See Downey v. Bay State St. Ry., 225 Mass. 281, 284, 114 N.E. 207; Hurnanen v. Nicksa, 228 Mass. 346, 350, 117 N.E. 325; Shufelt v. McCartin, 235 Mass. 122, 126 N.E. 362; Harlow v. Sinman, 241 Mass. 462, 463--464, 135 N.E. 553; Burns v. Winchell, 305 Mass. 276, 25 N.E.2d 752; MacKenzie v. MacKenzie, 306 Mass. 291, 28...