Murray v. Rossmeisl

• Decision Date: 25 October 1933
• Citation: 284 Mass. 263
• Parties: JESSE MURRAY v. OSCAR J. ROSSMEISL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 263

JESSE MURRAY v. OSCAR J. ROSSMEISL.

Supreme Judicial Court of Massachusetts, Hampden.

October 25, 1933

September 21, 1933.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & DONAHUE, JJ.

Pleading, Civil Declaration, Answer. Workmen's Compensation Act, Action by insurer against negligent third person. Practice, Civil Amendment, Conduct of trial, Waiver. Evidence, Presumptions and burden of proof.

It was stated that in an action under G. L. (Ter. Ed.) c. 152, Section 15, brought by an insurer in the name of an employee against a person other than the subscriber to enforce the defendant's liability to pay damages for injuries to the plaintiff, the authority of the insurer to prosecute the action, by reason of its having paid compensation to the plaintiff, is a preliminary question to be heard and determined by the trial judge and is not an essential part of the plaintiff's case triable by the jury.

It was stated that, in an action of the character above described, it was not necessary to allege in the writ or declaration that the action was brought in the name of the plaintiff for the benefit of the insurer; and that allegations in the answer, to the effect that the plaintiff was an employee of a subscriber under the workmen's compensation act and had received compensation thereunder for his injuries, were irrelevant to any issue to be tried by the jury.

It was stated that, if allegations of the character above described had been included in an answer filed without the plaintiff's consent, he, upon a proper motion seasonably made, would have been entitled to have them struck out, and that the denial of such a motion would have been error.

Where the attorney for the plaintiff in such an action, previous to trial, consented to an amendment of the defendant's answer, whereby allegations of the character above described were added, the original answer not having contained any allegations of that character, the plaintiff was not entitled as of right to contend at the trial that such allegations were not properly a part of the answer or that, as such, they should not be read to the jury; and there was no reversible error in the denial of a motion by the plaintiff at the opening of the trial that "the amended answer" be struck out "and not read to the jury."

TORT. Writ dated November 17, 1931. The pleadings, proceedings at the trial in the Superior Court before Dillon, J., and an exception saved by the plaintiff, are described in the opinion. There was a verdict for the defendant. The plaintiff alleged an exception.

The case was submitted on briefs. W. G. Brownson, for the plaintiff.

R. S. Spooner & E.

W. Sawyer, for the defendant.

FIELD, J. This is an action of tort to recover compensation for personal injuries alleged to have been caused by negligent operation of a motor vehicle in which the plaintiff was riding. There was a verdict for the defendant. The case comes before us on the plaintiff's exception to the denial of his motion hereinafter referred to, to strike out the defendant's amended answer.

There was no statement in the writ that the action was brought for the benefit of any person other than the plaintiff. Neither the declaration nor the original answer alleged any facts which would bring the case within the provisions of the workmen's compensation law. G. L. (Ter. Ed.) c. 152. The original answer contained a general denial and allegations that "the injuries alleged were caused in whole or in part by plaintiff's own negligence," and that the motor vehicle was not "being operated by and under the control of a person for whose conduct the defendant was legally responsible." Before the trial the defendant, with the consent of the plaintiff's attorney, amended this answer by adding allegations to the effect that the plaintiff as an employee of the city of Springfield was within the provisions of the workmen's compensation law and had received compensation thereunder for the injuries alleged in the declaration. The case was referred to an auditor who made a report.

At the trial, after the jury were impaneled, the attorney for the plaintiff, in the absence of the jury, stated that the action was "brought for the benefit of the insurer under the workmen's compensation act," that "The plaintiff was an employee of the city of Springfield, which was insured under that act," and that "the action is brought for the benefit of the insurer, which is the city;" and presented an affidavit of the plaintiff that "at the time of the accident . . . [he] was in the employ of the City of Springfield, a municipal corporation, which was insured under the Workmen's Compensation Act. That the plaintiff made an agreement for compensation with the insurer, and received compensation for the injury in question. That this action is being enforced in the plaintiff's name by the said insurer, and for its benefit, and that any judgment obtained in this action shall be subject to division or apportionment as set forth in said Act. And that this action was brought and is being prosecuted with the consent and by the authority of the insurer," and moved that "the amended answer of the defendant be struck out, and not read to the jury." The judge ordered the affidavit filed and denied the motion,...