Nicoli v. Berglund

• Decision Date: 27 February 1936
• Citation: 200 N.E. 373,293 Mass. 426
• Parties: NICOLI v. BERGLUND. SAME v. SWENSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 426

200 N.E. 373

NICOLI

v.BERGLUND.

SAME

v.SWENSON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 27, 1936.

Two actions of tort by John Nicoli, one against Gustav Berglund and the other against Henning W. Swenson and another. Verdict for the plaintiff in each action in the sum of $6,780, and defendants appeal from orders dismissing reports.

Orders affirmed.

Appeal from Appellate Division of District Court, Third District; Green, Judge.

J. P. Sullivan, of Boston, for appellants.

J. G. Ashe and S. S. Epstein, of Boston (H. Klein, of Boston, on the brief), for appellee.

RUGG, Chief Justice.

These are two actions of tort whereby the plaintiff seeks to recover compensation for injuries to his person and for damages to an automobile owned by him as the result of a collision with a motor vehicleowned by the defendants, in one case, and negligently operated by their agent, one Berglund, in the course of his employment, the defendant in the other case. The cases were tried in a district court before a special justice. There was evidence tending to show that upon a public way the plaintiff, operating his automobile, and the defendant Berglund, operating an automobile truck owned by the other defendants, were approaching each other. The plaintiff was driving on his right hand side of the road. At his right was a stone wall. Berglund was driving on his left hand side of the road in the path of the oncoming automobile of the plaintiff and was not looking ahead but into a field at his left. The truck was moving at a speed of about thirty-five miles an hour. The plaintiff reduced the speed of his automobile and sounded the horn continuously, but the defendant Berglund continued in the same course. When the two motor vehicles were about fifteen or twenty feet apart, the plaintiff, in an effort to avoid collision, turned sharply to his left. At the same moment Berglund turned sharply to his right. The two motor vehicles came together in the middle of the road and both went six to eight feet before stopping. When the motor vehicles stopped, the right front wheel of the truck ‘was over about one foot on the shoulder on the right side off the macadam and the right rear wheel of the * * * truck was at the edge of the macadam and the front of the plaintiff's automobile was up against the left side of the * * * truck.’

The defendants requested several rulings of law, which were denied. The only ones now argued were presented in each case and are these: ‘If the plaintiff violated Chapter 89, Section 1, such violation is evidence of negligence and if it contributed to the accident the plaintiff cannot recover.’ ‘As the plaintiff violated Chapter 89, Section 1, such violation is evidence of negligence and as it contributed to the accident the plaintiff cannot recover.’ It is provided by G.L.(Ter.Ed.) c. 89, § 1, that ‘When persons traveling with vehicles meet on a way, each shall seasonably drive his vehicle to the right of the middle of the traveled part of such way, so that the vehicles may pass without interference.’ Gallagher v. Wheeler (Mass.) 198 N.E. 891. These requests were denied as inapplicable to the facts found. The trial judge found that the injuries to the plaintiff were caused solely by the negligence of Berglund while acting on the business of his employers, the other defendants, and that the plaintiff was in the exercise of due care, and assessed damages in a substantial sum in favor of the plaintiff.

The general finding for the plaintiff in each case imports a finding of all subsidiary facts necessary to that conclusion. Adams v. Dick, 226 Mass. 46, 53, 115 N.E. 227;Engel v. Checker Taxi Co., 275 Mass. 471, 475, 176 N.E. 179;Mahoney v. Norcross, 284 Mass. 153, 187 N.E. 227;Wood v. Town of Oxford (Mass.) 195 N.E. 321. Whether or not there was a violation of the statute was a question of fact. Patrican v. Garvey, 287 Mass. 62, 190 N.E. 9. The general finding for the plaintiff implied a specific finding that the plaintiff did not violate the law of the road. The requested rulings thus were inapplicable to the facts found. Globe Discount & Finance Corp. v. Sawyer, 288 Mass. 431, 193 N.E. 8. There was no error of law in the denial of the requests.

Motion for a new trial supported by affidavit was filed in each case, based on alleged bias and prejudice on the part of the trial judge against the insurance company which had insured the motor truck involved in this collision. The substance of the motion and affidavit was that, on December 14, 1934, after the trial of the cases at bar and before the findings were filed, the trial judge, while engaged as an attorney for a plaintiff in the trial of a case in which the same insurance company was insurer for the defendant, became incensed because of the failure of that insurance company to give him certain information, and used language and a tone of voice expressing great displeasure and perhaps anger, and indicating a disposition to punish that company, thus demonstrating his hostility to it. These motion were heard before the trial judge. At that hearing the defendants offered as a witness the person who had made the affidavit and made offer of proof that, if sworn, his testimony would be as set forth in his affidavit. The trial judge refused to permit the affiant to be a witness; the defendants duly requested a report of this ruling. No evidence appears to have been introduced at the hearing outside the affidavit. The motions for new trial were denied. The trial judge filed in each case a statement of facts to which was annexed an affidavit of the assistant clerk of the court. The statement of facts in substance was that his findings in the cases at bar had been made in writing on December 12, 1934, before the date mentioned in the affidavit; that the findings thus made were filed unchanged except that a ‘7’ was written over ‘2’ in the date, making it December 17 instead of December 12, ‘which is clearly apparent on the record’; and that ‘The affidavit * * * is grossly exaggerated and distorted. On the occasion in question * * * I made no criticism of any person or persons, except my own client and the inference attempted to be drawn in said affidavit is wholly false and misleading and in no sense justified by the actual occurrence on December 14th. This occurrence had no bearing, directly or indirectly, on my decision * * * which had been made on December 12th.’ The affidavit of the assistant clerk of courts was to the...