Turcotte v. DeWitt

• Decision Date: 03 February 1955
• Citation: 124 N.E.2d 241,332 Mass. 160
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Leontine TURCOTTE, administratrix, v. Marines E. DE WITT (two cases). leontine TURCOTTE, administratrix, v. KAHN TRANSPORTATION COMPANY, Inc. (two cases).

Page 241

124 N.E.2d 241

332 Mass. 160

Leontine TURCOTTE, administratrix, v. Marines E. DE WITT (two cases).

leontine TURCOTTE, administratrix, v. KAHN TRANSPORTATION COMPANY, Inc. (two cases).

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 25, 1954.

Decided Feb. 3, 1955.

Benjamin G. Sykes, Norwood, for plaintiff.

Gerald P. Walsh, New Bedford, for defendants.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

These are four actions of tort brought by Leontine Turcotte, administratrix of the estate of Hubert A. Turcotte. Two actions are brought against Kahn Transportation Company, Inc., and two are brought against Marines E. DeWitt. The plaintiff seeks to recover against each defendant for death, conscious suffering, and property damage. The judge directed a verdict for each defendant on the count for conscious suffering. The counts for death and property damage were submitted to the jury and verdicts in favor of the plaintiff on these counts were returned by the jury. The cases come here on the defendants' exceptions to the denial of their motions for directed verdicts, to certain rulings relating to evidence and the conduct of the trial, and to the denial of their motions for a new trial.

We summarize the evidence as follows: About 7:15 in the evening of December 22, 1949, the plaintiff's intestate, hereinafter called the deceased, was driving his automobile on Broadway, a public highway in the city of Taunton. Broadway is a 3 lane highway, each lane being 10 feet in width, which runs substantially north and south. The weather was clear and the road was dry. On each side of the road there is a tar shoulder or gutter 2 feet in width. Immediately prior to the accident the deceased was driving south toward Taunton and a furniture van owned by the defendant Kahn Transportation Company, Inc., and operated by its employee, the defendant DeWitt, was proceeding north. At the point where the accident occurred the road was straight. About 75 to 100 feet south of this point the road makes a turn to the left, which would be a right turn for a vehicle proceeding north. Just prior to the accident the deceased was travelling 'at a normal rate of speed in his own right' or westerly lane. While proceeding thus the furniture van collided with the automobile of the deceased and pushed it to within 2 feet of the westerly curbing. The left front portion of the van struck the left front portion of the deceased's automobile. The vehicles 'came together just on the inside of the right lane facing south toward Taunton.' ¹ The automobile of the deceased was badly damaged and the deceased sustained severe injuries. He was dead when seen by the medical examiner about a half hour after the accident. There was no evidence of conscious suffering.

1. The judge did not err in denying the defendants' motions for directed verdicts. True, there was evidence which would have warranted a finding that there was no negligence on the part of the operator of the van or that the deceased was guilty of contributory negligence, but the jury were not obliged to believe it. On the evidence most favorable to the plaintiff it could have been found that the van collided with the deceased's automobile on the westerly lane, which would be the deceased's right hand lane. If the jury believed that the accident occurred at this point in the road they could have found negligence on the part of the operator of the van. The question was one of fact for the jury to decide.

2. When the accident occurred G.L. (Ter.Ed.) c. 229, § 2, as appearing in St.1947, c. 506, § 1A, was in force. This section, so far as material, provided that 'if any person * * * [by his negligence] causes the death of a person in the exercise of due care who is not in his * * *employment or service, he * * * shall be liable in damages, in an amount not less than two thousand nor more than fifteen thousand dollars, to be assessed with reference to the pecuniary loss sustained by the parties entitled to benefit hereunder * * *.' (See now G.L. [Ter.Ed.] c. 229, § 2C, inserted by St.1949, c. 427, § 3, restoring the degree of culpability of a defendant as the measure of damages.) Under such a statute the plaintiff was entitled to show the probable span of the deceased's life in order to establish the pecuniary loss sustained. Durdle v. Baron, 328 Mass. 460, 463, 104 N.E.2d 421. One Boermeester, called by the plaintiff, whose qualifications as an expert were conceded by the defendants, testified that he had been an actuary for 21 years and was an assistant actuary of John Hancock Mutual Life Insurance Company. He further testified that there is a table known as the American Experience Table of Mortality and he identified such a table. He then stated, without objection, that from his experience the deceased, based on his age when he died, would have had a life expectancy of 21.1 years. Counsel for the plaintiff then asked what according to the mortality table would be the deceased's expectancy of life. Over the objection and exception of the defendants the witness was permitted to answer that the expectancy would be 21.1 years. The following then appears in the record: 'This witness further testified that the mortality table, which he had identified, was not used by him in connection with his work as an actuary and that he based his answer on the fact that the table had had precedence in the courts for a number of years to show the expectation of life of men of this age. The rates, the expectation of life, compare very close to other tables in use at this time for persons 49 and over. Counsel for the defendant then moved to strike out all his testimony concerning the actuary table and life expectancy and the following colloquy occurred:

'Counsel for the defendants: Then on the basis of that, may I move that the witness's testimony be stricken out, all of his testimony concerning this table and what it shows relative to life expectancy.

'The Judge: No. I will save your exception.

'Counsel for the defendants: My exception.'

It has been held both here and elsewhere that standard mortality tables are admissible to prove the probable duration of a person's life. Banks v. Braman, 195 Mass. 97, 99, 80 N.E. 799; Hanley v. Boston & Maine Railroad, 286 Mass. 390, 399, 190 N.E. 501; Wigmore on Evidence (3d ed.) s. 1698. The objection of the defendants does not appear to have been based on the fact that the table was not a standard one. In any event we think enough appeared to show that it was one in general use. Nor was the objection based on the fact that the table itself was not introduced in evidence. Moreover the expectancy contained in the table did not differ from that which the witness testified to without objection on the basis of his own knowledge. There was no prejudicial error.

3. One Fahey, a police officer called by the plaintiff, testified that he went to the scene of the accident and observed the position of the vehicles involved in it. 'He drew a sketch on the blackboard to indicate the position of the vehicles as he saw them after the accident and the car was placed in the right lane, the truck was placed up against the left side of the front of the car, and that he saw a mark on the road. It was a skid mark and it ran...