Whitcomb v. New York, N.H. & H.R. Co.

• Decision Date: 12 September 1913
• Parties: WHITCOMB v. NEW YORK, N.H. & H. R. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 440

102 N.E. 663

WHITCOMB v. NEW YORK, N.H. & H. R. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

September 12, 1913

COUNSEL

Walter B. Grant, of Boston, for plaintiff.

John L Hall, of Boston, for defendant.

OPINION

MORTON J.

These two actions were tried and have been argued together. They are brought to recover for injuries caused by and damages arising out of a collision of trains on the defendant's road at Sharon Heights, on August 24, 1898. Both the plaintiff and his wife, Virginia H. Whitcomb, were injured and it is claimed by the plaintiff that a sum of money belonging to him was lost at the time of the collision from a handbag carried by his wife.

The first action is for the plaintiff's personal injuries and for the money in the handbag belonging to him. The second action is for loss of the services and consortium of his wife during an illness subsequent to the accident, and for the expenses incident to such illness.

An action for the injuries sustained by the wife was brought by her and a verdict of $5,000 was rendered in her favor on which judgment was entered and an execution issued which was satisfied.

The cases were tried to a judge without a jury. At the trial the defendant did not contest the question of its negligence nor the question of due care on the part of the plaintiff and his wife. The judge found in favor of the plaintiff in both actions, but refused to make certain findings or rulings requested by the plaintiff, and the cases are here on exceptions by the plaintiff to such refusal and to certain findings and rulings made by the presiding judge.

In the first action the judge found for the plaintiff and assessed the 'damages in the sum of $750 including therein $100 for medical attendance.' He ruled as 'matter of law that the plaintiff cannot recover for money in the bag as it appears and I find that it was not carried for necessary traveling expenses.' There is nothing to show that the money in the bag which the plaintiff claimed to belong to him was for traveling expenses, and it is plain that the ruling and finding in regard to such money were right. Levins v. N. Y., N.H. & H. R. R., 183 Mass. 175, 66 N.E. 803, 97 Am. St. Rep. 434; Dunlap v. International Steamboat Co., 98 Mass. 371; Jordan v. Fall River R. R., 5 Cush. 69, 51 Am. Dec. 44.

The amount which the plaintiff was entitled to recover for personal injuries and which should be allowed for medical attendance on him was especially a matter for the presiding justice to pass upon. He saw and heard the plaintiff and his witnesses as well as the witnesses for the defendant, and had opportunities which we have not of judging how much weight should be given to their testimony and whether the claims by the plaintiff in regard to the injuries alleged to have been sustained by him were fair and reasonable or were exaggerated with a view to inflating the damages.

There was testimony brought out on the cross-examination of the plaintiff's physician tending to show that the injuries sustained by the plaintiff were not so serious as he claimed that they were. And the same witness testified further on cross-examination that out of a bill for $6,500 rendered by him for medical attendance on the plaintiff and his wife he 'should say $200 was for treatment upon Mr. Whitcomb.' There was evidence which we think fairly warranted the presiding judge in finding that even that amount was in excess of what could have been properly charged for attendance on the husband. The whole matter was one entirely within the discretion of the presiding judge, and if reviewable here we see no error in the exercise of his discretion. No ruling of law was asked for or made.

In regard to the other action the judge found that 'the plaintiff's wife received full compensation from the defendant for any injuries suffered by her by reason of the accident,' and he ruled as matter of law that the plaintiff was not entitled to recover for loss of consortium. The evidence warranted the finding, and the ruling was clearly right. Bolger v. Boston Elev. Ry., 205 Mass 420, 91 N.E. 389; Feneff v. N.Y. C. & H. R. R. R., 203 Mass. 278, 24 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 291. The plaintiff claimed and introduced evidence tending to show that after the accident his wife had an ovarian tumor of which the accident was the exciting cause, and that as a result of that and of other injuries sustained by the...