Marsh v. Beraldi
| Decision Date | 15 June 1927 |
| Citation | 260 Mass. 225,157 N.E. 347 |
| Parties | MARSH v. BERALDI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County.
Separate actions of tort by Marion E. Marsh and by Benjamin Thomas and by Judson J. Sartwell and by Thomas Whelan against Joseph Beraldi to recover for personal injuries in collision between defendant's motor truck and a motor police ambulance in which plaintiffs were riding. Actions tried together. Verdicts for plaintiffs, and defendant excepts. Exceptions overruled.E. W. Ogden and G. L. Ellsworth, both of Boston (M. M. McChesney, of Boston, on the brief), for plaintiffs.
D. H. Fulton, of Boston, for defendant.
The plaintiffs were injured in a collision between a motor truck driven by one Toscano and a motor police ambulance, in which they were riding, driven by the plaintiff Sartwell. The four actions at law were tried together and are before us upon exceptions of the defendant. He admits that there was evidence which would justify finding that Toscano's negligence contributed to the accident. He contends that there was insufficient competent evidence to justify submission of the cases to the jury, and that he was prejudiced by the admission of incompetent evidence, by the refusal of certain requests for instructions, and by instructions given.
The essential questions of fact and of law in dispute are (1) whether Sartwell negligently contributed to the accident; (2) whether, if he did, the other plaintiffs were precluded thereby from recovery; and (3) whether the defendant was liable for negligence of Toscano.
[1] (1) There was nothing in the evidence which, as matter of law, required the judge to rule that Sartwell was negligent in the speed at which he was driving, in the observation of traffic conditions about him, in the position he was holding in the road, in the ringing of his ‘gong’ as a warning, in the turn to the right when he saw the on-coming truck suddenly and unexpectedly turn toward him in a swing to its left before reaching the middle point of an intersecting way, or in the application of his brake. There was evidence for the jury. The judge was right in refusing to take the cases from them on this ground. He read to the jury all but one of the defendant's requests for instructions on this point, and covered fully in his charge the substance of the omitted request. No error appears in this regard.
[2] (2) It is unnecessary to decide whether the jury should have been instructed that the other plaintiffs could not recover if Sartwell, the driver, contributed to the accident by his negligence. The jury found that Sartwell was not negligent and, thus, demonstrated that the defendant was not prejudiced by the conduct of the judge in this respect.
[3] (3) The troublesome question is, whether the defendant could properly be found to be responsible for negligence of Toscano. The judge rightly instructed the jury that this depended upon whether Toscano or the defendant was in control of the truck; whether Toscano was an independent contractor, not subject to the direction and control of Beraldi in driving the truck or was a servant or agent of Beraldi and, as such, subject to his control and direction. Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648.
[4] Toscano and the defendant both were called by the plaintiffs as witnesses. The material facts on the issue of control came from them. Neither spoke good English. It was for the jury to decide whether they comprehended the questions; what their answers, often expressed in broken English, were to be taken to mean, and to what extent those answers expressed rather the suggestions of examining counsel than the knowledge or thought of the witness. The defendant rested at the end of the plaintiffs' case. Substantially all the facts in regard to control were in dispute, and there was occasion for further dispute as to the meaning of the testimony. The judge was right in denying the motions to direct verdicts for the defendant.
[5] No one questioned that Beraldi had been owner of the truck under a conditional sale until May of 1923. He testified that, with the assent of his vendor, he sold it to Toscano about May 21, 1923. The registration was changed from his name as owner to that of Toscano as of May 22, 1923. The jury could have found that the terms of sale were $800 cash down, the balance of the purchase price of $5,000, with interest at seven per cent., to be paid $300 per month ‘provided he works every day in the week,’ title not to pass until the full price was paid; and that Beraldi agreed, orally, to keep the truck in his back yard and to furnish work to keep it busy. A chauffeur, Nolan, was engaged by him to operate it. Every week Toscano and Beraldi had an accounting, in which Beraldi charged for gasoline, oil and repairs. He paid the chauffeur and allowed a regular price per day for the truck. Any balance of its earnings was retained by Beraldi on the purchase price. Only one full payment of $300 for a month was made, but Toscano testified that by the time of the accident he had paid $2,400. Beraldi found occupation for the truck and directed what should be done with it. Toscano remained in his employment as a railroad brakeman until a few weeks before the accident, which happened on November 5, 1923. During this period he did nothing about the truck beyond attending to the weekly accountings. Beraldi was dissatisfied with Nolan, and, a few weeks before the accident, advised Toscano to run the truck himself. Toscano, who had a family to support, said he must have $30 per week instead of the $27 which Nolan was receiving. As he put it, he said: ‘I will work for you, if you will give me $30.00 a week.’ He learned to drive the truck from a chauffeur furnished by Beraldi, and was driving it at the time of the accident. In accounting he was allowed $18 a day for the truck and was paid $30 per week. He went with the truck wherever Beraldi directed; reported to Beraldi whenever employment ceased on any job, and never, so far as appeared in evidence, did anything in the use of the truck unless advised or directed by Beraldi.
[6][7] There is nothing here to require a finding that Toscano was anything other than an employee of Beraldi hired to drive a truck; and nothing to suggest it, unless it be that he was owner of the truck. The jury were not bound to believe him owner. The plaintiffs are not bound by Beraldi and Toscano's evidence, although they introduced it....
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