Marquis v. Messier

Citation22 N.E.2d 473,303 Mass. 553
PartiesMARQUIS v. MESSIER (two cases).
Decision Date07 July 1939
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Actions of tort by Ida Marquis against Philip A. Messier for personal injury in automobile accident, and by Aime Marquis against Philip A. Messier, for consequential damages, which were tried twice. The first trial resulted in findings for the defendant, and the second trial resulted in findings for the plaintiffs. From a judgment of the Appellate Division finding error in the first trial and ordering new trial, and dismissing a report in each case, defendant appeals.

Orders reversed. Findings for defendant at first trial to stand.Appeal from Central District Court of Northern Essex; C. J. Moynihan, Special Judge.

T. G. Heyliger, of Boston, for appellant.

G. Karelitz and S. Faraci, both of Haverhill, for appellees.

LUMMUS, Justice.

These cases have been tried twice. After findings for the defendant at the first trial, the Appellate Division found error and ordered a new trial. The second trial resulted in findings for the plaintiffs, and the Appellate Division dismissed a report in each case. The defendant appealed.

First we must consider whether there was error at the first trial. If there was none, the defendant is entitled to prevail, regardless of later proceedings. Weiner v. Pictorial Paper Package Corp., Mass., 20 N.E.2d 458.

The declaration in the first case was in three counts. The first count was based on G.L. (Ter.Ed.) c. 89, §§ 1, 5. The second count was based on G.L. (Ter.Ed.) c. 89, §§ 4, 5. Gallagher v. Wheeler, 292 Mass. 547, 198 N.E. 891. The repeal of the part of section 5 giving a civil remedy by St.1936, c. 49, destroyed these causes of action and prevented recovery on these counts, as the trial judge rightly ruled. Pittsley v. David, Mass., 11 N.E.2d 461;Sullivan v. Cushing, Mass., 11 N.E.2d 917;Finnegan v. Checker Taxi Co., Mass., 14 N.E.2d 127. The third count, the only one now of importance, was for gross negligence causing bodily injury to the plaintiff in the first case, who was a guest of the defendant in an automobile operated by him on October 20, 1935, when the automobile came into collision with a street car. The declaration in the second case, brought by the husband of the plaintiff in the first case to recover consequential damages, follows in its counts the declaration in the first case.

The trial judge, after setting forth the circumstances of the collision in detail, found that the defendant was guilty of ordinary negligence but not of gross negligence. Gross negligence, of course, was essential to recovery. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A.1918C, 264, Ann.Cas.1918B, 1088. But the judge refused a ruling, requested by the plaintiffs, that the evidence was sufficient to warrant a finding of gross negligence. Unless the judge was prepared to rule that as matter of law the evidence was insufficient, and to end his consideration before reaching the question of fact, the better practice would have been to give the ruling, even though, weighing the evidence upon the question of fact, he found that it did not prove gross negligence by a preponderance of the evidence. In other words, giving the ruling, and then finding for the defendant, would have been perfectly consistent. If the evidence did warrant though it did not require a finding of gross negligence, the refusal of the ruling requested would be error as implying a ruling that the defendant must prevail as matter of law, and as depriving the plaintiffs of their right to have the judge weigh the evidence upon the question of fact. All this is explained in Strong v. Haverhill Electric Co., Mass., 13 N.E.2d 39. See, also, Cameron v. Buckley, Mass., 13 N.E.2d 37.

In the present cases, however, as in the Strong case, the plaintiffs apparently were not deprived of that right. Notwithstanding the refusal of that ruling, the judge apparently did consider all...

To continue reading

Request your trial
4 cases
  • Perry v. Hanover
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 28, 1943
    ...is in accord with numerous decisions. Strong v. Haverhill Electric Co., 299 Mass. 455, 456-457, 13 N.E.2d 39;Marquis v. Messier, 303 Mass. 553, 554, 555, 556, 22 N.E.2d 473;Himelfarb v. Hovadel Agene Corp., 305 Mass. 446, 447, 448, 26 N.E.2d 320. See also Farina Brothers, Inc., v. Robinson,......
  • Perry v. Hanover
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 28, 1943
    ...... of the defendant. This conclusion is in accord with numerous. decisions. Strong v. Haverhill Electric Co. 299. Mass. 455, 456-457. Marquis" v. Messier, 303 Mass. 553 , 555-556. Himelfarb v. Novadel Agene Corp. 305. Mass. 446 , 447-448. See also Farina Brothers,. [314 Mass. 176] . . \xC2"......
  • People v. Werhollick
    • United States
    • United States Appellate Court of Illinois
    • October 22, 1968
  • Marquis v. Messier
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 7, 1939

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT