Nisbet v. Medaglia

• Decision Date: 07 January 1970
• Citation: 356 Mass. 580,254 N.E.2d 782
• Parties: John E. NISBET v. Anthony J. MEDAGLIA, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 782

254 N.E.2d 782

356 Mass. 580

John E. NISBET v. Anthony J. MEDAGLIA, Jr.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 5, 1969.

Decided Jan. 7, 1970.

Thomas D. Burns, Stephen N. Subrin, Boston, for defendant.

Monto Rosenthal, Boston, for plaintiff.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL and QUIRICO, JJ.

WILKINS, Chief Justice.

This is an action of tort for personal injuries ¹ incurred on March 13, 1964, in a collision of motor vehicles, one of which the plaintiff was operating. The jury returned a verdict of $82,500 for personal injuries, which the trial judge found to be excessive, and which was remitted to $42,500 by the plaintiff. There was evidence of the defendant's negligence.

The exceptions are to two rulings on evidence. The first is to the judge permitting an actuary to answer a hypothetical question which assumed that the plaintiff's earning capacity was reduced by $35 a week from 1966 to 2002. One Hurlbut, an actuary called by the plaintiff, testified on direct examination that the expectancy of life as of March 13, 1964, of a white American male born on October 16, 1937 (as was the plaintiff according to some evidence) is 44.34 years. The actual question which is the subject of exception was, '(W)ould you calculate * * * what sum of money invested at 4 per cent interest is sufficient to provide * * * a weekly amount of $35 * * * from February 1, 1966, until October 16, 2002, such sum to be exhausted at that time?' The answer was, '$36,000.'

In order to test the propriety of the question and answer, it is necessary to attempt to state, at the risk of being tedious, a fair representation of the pertinent testimony.

On direct examination the plaintiff testified that he was working for Prudential Insurance Company in Boston when he was injured. His work required a lot of physical activity. 'He was moving around all the time, setting up tapes, setting up forms. * * *' Besides his work at Prudential, he had a newspaper agency in Stoughton for The Boston Herald. His salary with Prudential was $5,700 and 'he cleared $35 a week after automobile expenses for a newspaper route.' He used to get up about 5 A.M. to do his newspaper work. ² This took about an hour and a half and then he worked from 4:30 P.M. until 12:30 A.M. at Prudential. Then he would go home and sleep for a while and get up and do the newspapers. When he was on the morning shift, he would work from 8:30 A.M. until 4:45 P.M. One week he would be on the first shift and the second week he would be on the second shift from 4:30 P.M. to 12:30 A.M. He described his injuries, which were largely to his back and legs and quite painful. In May, 1964, two months after the accident, he entered a hospital, where a myelogram was performed. 'From March he tried to carry out the duties that he had other than at Prudential, the newspaper thing, but he just couldn't handle it.' From March until he went into the hospital a sixteen year old boy helped with the paper route. 'As far as his work with the Boston Herald, he had this boy working for him and he hoped his recovery was soon so that he would be able to assume full responsibility for it himself. His wife tried to help, but she could not handle it.' On October 5, 1965, he went to work for Inland Express as a truck driver. When he went to work he was getting $3.15 an hour. In October and November he was a part time truck driver; and in December he was on a full time seniority list. After a year and a half, in August, 1967, he gave that up. He used to work nights for Inland Express. He went in at 7 P.M. and the shift ended at 4 A.M. and he would go and deliver the Globe after he finished work. If he did not go to work, he would have to get up at 5 o'clock in the morning to 'do them.' 'At the end of the day he was all used up.' He left Inland in August, 1967. He gave up the Herald when he went to work for Inland Express. For a while he had both the Globe and the Herald. He continued with the Globe after he went with Inland. His income from the Globe until he went to work for Inland was $30 a week plus the profits he made on the newspaper which went into the expense of the automobile. He gave up the Globe in the spring of 1967. After he left Inland he went to work at Nisbet Trucking Company, of which his brother is president, for $125 a week, his duties being largely office work.

On cross-examination the plaintiff testified: 'After the accident, he made deliveries himself.' When he could not get the boy 'to do them and there was nobody else to do them, they had to be done so he did them.' He received more money in 1964 from the Herald than he had in 1963. 'He testified on deposition ³ that he did not continue the route after the accident and was averaging $35 a week from the Herald Traveler. * * * When he testified in his deposition that between the day of the accident and October, 1965, he delivered no newspapers, that was not a fact. * * * He began delivering papers on a regular basis near the end of October, 1965.' 'He took on the agency of another newspaper before he went to work for Inland Express, and that was the Boston Globe.' He was working in May, 1967, place unspecified, and he earned $142 a week.

On redirect examination he...