These actions of tort arise out of a collision between an automobile driven by the plaintiff Barry and a so called tractor-trailer unit operated by the defendant Hamilton. The tractor of this unit was owned by the defendant Keeler and the trailer was owned by the defendant Shawmut Transportation Co. Inc. Actions were brought by Barry and three passengers (Dunn, Grison and McDonald) and by the plaintiff Gruberski as administra-trix of the estate of her husband (also a passenger) against Hamilton, Keeler and the Shawmut Transportation Co. Inc., hereinafter called Shawmut. The jury returned ver-diets for the plaintiffs in all the cases against the defendants Hamilton and Keeler and for the defendant in all the cases brought against Shawmut. Numerous motions for new trials were presented which were disposed of as indicated on pages 117-118, supra. The cases come hеre on exceptions of all of the defendants. The defendants concede that there was evidence which would have warranted the jury in finding negligence on the part of the defendant Hamilton in the operation of the tractor-trailer unit. They also concede that the evidence warranted a finding that all of the occupants of the automobile were in the exercise of due care.
I. Exceptions of the Defendants Hamilton and Keeler.
1. Whеn the cases came on for pre-trial hearing on April 21, 1944, counsel representing Hamilton and Keeler pressed a motion on behalf of these defendants that the trial of the cases be stayed because Hamilton was in military service and was outside of the country. It does not appear that the facts on which the motion was grounded were challenged.
Thе soldiers’ and sailors’ civil relief act of 1940, Act of October 17, 1940, c. 888, § 201 (54 U. S. Sts. at Large, 1181) reads: “At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behаlf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service” (emphasis supplied). Whether or not a stay should have been granted to Hamilton by reason of his military service was a question to be decided by the trial judge in the exercise of his discretion. Boone v. Lightner,
Viewing the action of the pre-trial judge in the light of these principles, we think that there was no abuse of discretion. The statement of Hamilton, which counsel had agreed might be read аt the trial, strongly tended to show negligence on his part in driving on a slippery road leading to an intersection at a speed which made it impossible for him to stop in time to avoid the collision, in not seeing Barry until he was close upon him, and in going through a red light. The statement failed to show any negligence on the part of the plaintiffs and contained little or nothing which bore on other issues in the case. The judge might well have concluded that Hamilton’s presence in court and the testimony that he presumably would give would not have aided his case materially. In other words, the judge was warranted in concluding that Hamilton’s ability to conduct his defence was "not materially affected by reason of his military service.” See Gross v. Williams, 149 Fed. (2d) 84 (C. C. A. 8). Johnson v. Johnson, 59 Cal. App. (2d) 375. The subsequent course of the trial tends to confirm the conclusion of the judge.
The right of Keeler to a cоntinuance must be considered without reference to the provision of the soldiers’ and sailors’ civil relief act discussed above, for that applies only in an "action or proceeding ... in which a person in military service is involved, either as plaintiff or defendant.” See Royster v. Lederle, 128 Fed. (2d) 197, 199 (C. C. A. 6); Johnson v. Johnson, 59 Cal. App. (2d) 375, 382-383. Keeler was not in the military service at the time of the trial. Whether he was entitled to a continuance was a matter for thе judge to determine in the exercise of sound judicial discretion. Noble v. Mead-Morrison Manuf. Co.
2. The defendant Keeler argues that portions of the judge’s charge were erroneous and that the judge erred in failing to grant requests numbered 3, 4, 6 and 8. Before discussing them it will be necessary to set forth in greater
Requests numbered 3, 4 and 6 in effect asked for instructions that if Shawmut at the time of the accident had exclusive control over Hamilton’s conduct Keeler would not
The eighth request was as follows: “If you find that the tractor was under lease to the Shawmut Transportation Co. and was being used by it in its usual business as a common carrier under a license or franchise from any govеrnmental agency, the Shawmut Transportation Co. would have a direct responsibility to the public, and would be liable in this action if there is negligence on the part of the operator of the vehicle and the defendant Keeler would not be liable” (emphasis supplied). For reasons that will appear later when we come to discuss the exceptions of Shawmut, this request was substantially correct except for the clause in italics. But with the italicized words it was not correct. The jury could have found that Shawmut was liable because its duty was nondelegable and that Keeler was liable because he was Hamilton’s employer. See Wall’s Case,
Keeler excepted to that portion of thе charge which discussed the principles of law that were applicable in determining whether Hamilton was the servant of Keeler or of Shawmut. Reading the charge as a whole, we are of
Keeler also excepted to the judge “stating that the jury could disregard all reference to the I. C. C. franchise.” But no such statement appears in the charge. The judge, to be sure, instructed the jury that they could disregard the evidence concerning the regulations of the interstate commerce commission, since there was no evidence as to what they were. If the exception can be stretched to refer to this portion of the charge, there was no error. Assuming, without deciding, that the courts of the Commonwealth are required to take judiсial notice of these regulations,
3. Finally the defendants Hamilton and Keeler urge that the manner in which the trial judge dealt with thе various motions for new trials was prejudicial to them. There is nothing in the exceptions to the granting of new trials on the issue of damages in the actions brought against them by Barry. This was clearly within the discretion of the trial judge. Baxter v. Bourget,
II. Exceptions of the Defendant Shawmut.
As we have noted above, the jury found for the defendant Shawmut at the first trial in all cases brought against it. At the second trial the plaintiffs Gruberski and Barry, to whom new trials had been granted, obtained verdicts against Shawmut. At this trial the cases brought by Barry against Hamilton and Kеeler were also retried, but only on the issue of damages.
1. Shawmut at the first trial excepted to being ordered to trial in the absence of Hamilton and renewed its exception at the opening of the second trial. In support of its exception it invokes the provision of the soldiers’ and sailors’ civil relief act discussed above. But as we have previously stated in dealing with the exceptions of Hamilton and Keeler, this act applies only to persons in the military service. Shawmut, therefore, was not entitled to invoke it. As in the case of Keeler, we cannot say that the trial judge abused his discretion in denying a continuance.
2. At the first trial the judge instructed the jury in substance that either Keeler or Shawmut could be found to be hable for Hamilton’s conduct but not both. To this statement the plaintiffs did not except. Shawmut argues that this instruction became the law of the case and that since the plaintiffs’ verdicts against Hamilton and Keeler were allowed to stand, at least as to liability, the judge was precluded from granting new trials in the cases against Shawmut. If the judge followed the theory of law set forth in his charge, it is difficult to see on what basis he granted new trials in the cases against Shawmut. But he was not obliged to follow it. He might have come to the conclusion thаt he erred in not instructing the jury that Shawmut
3. Shawmut contends that in the Gruberski and Barry cases the judge erred in denying its motions for directed verdicts. It argues that the evidence afforded no basis for a finding that Hamilton was under its direction and control at the time of the accident. If we assume, without deciding, that this was so, the plaintiffs would still be entitled to go to the jury against Shawmut. Even if as matter of law Keеler was an independent contractor and liable for Hamilton’s conduct, Shawmut might nevertheless be liable. To the rule that one who employs an independent contractor is not ordinarily liable for his negligence or that of his employees there are several exceptions. One of them is stated by the American Law Institute in Restatement: Torts, § 428, in these terms: “An individual or a corporation carrying on an aсtivity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Decisions supporting this rule are Venuto v. Robinson, 118 Fed. (2d) 679 (C. C. A. 3), Hodges v. Johnson, 52 Fed. Sup. 488 (D. C. W. D. of Va.), Cotton v. Ship-By-Truck Co.
The exception to that portion of the charge which dealt with this principle likewise must be overruled. The instructions on this point were complete and accurate.
4. Shawmut, in the Gruberski case, excepted to the exclusion of evidence of the verdicts returned by the jury at the first trial in favor of that plaintiff in the cases against Hamilton and Keeler. Exceptions were also taken to that portion of the charge which permitted the jury to fix damages for death and consсious suffering of Gruberski’s intestate in amounts in excess of those established by these verdicts. If these rulings were wrong they were prejudicial to Shawmut because the verdict against it was substantially in excess of the verdicts against Hamilton and Keeler at the first trial. We are of opinion that the rulings were right and that the exceptions to them must be overruled.
It is true that, if judgments had been obtained against Hamilton and Keeler, Shawmut could have introduced them in evidence and would have been entitled to an instruction that, although not bound by the judgments, it could not be held liable for an amount in excess of them. The applicable rule of law in such a case is found in § 96 of the Restatement of Judgments which reads: "(1) Where two persons are
The reason for the rule is this. The indemnitee is in effect a surety of the indemnitor, and, to the extent that the latter’s wrongful conduct has subjected him to liability to a third person, he is entitled to be indemnified. Restatement: Restitution, § 96. Restatement: Agency, § 401. Karcher v. Burbank,
The rulings of the trial judge were not at variance with the principles just discussed. The verdicts against Hamilton and Keeler, the indemnitors, had not ripened into judgments and bound nobody. And they might never become judgments. Exceptions were thеn pending, and, in the event that they were sustained by this court, the cases would have to be tried anew. On a retrial, other verdicts might have been returned. The judge could not foresee what the outcome would be. He was required to
However, as a result of the overruling of the exceptions of Hamilton and Keeler, Gruberski’s cases against them will now go to judgment. Under the principles discussed above those judgments fix Shawmut’s rights of indemnification against them. Should the verdict against Shawmut ripen into a judgment, it would be compelled to pay a larger amount than it can recover over against its indemnitors. To avoid that injustice, we think that the circumstances are such that this court under G. L. (Ter. Ed.) c. 231, § 124, should order that judgment be entered for the plaintiff Gruberski in the same amount (except for such differences as therе might be in the matter of interest and costs) as that established in her judgments against Hamilton and Keeler. Section 124 provides that “Whenever a question in dispute at the trial of an issue of fact in any civil action or proceeding depends upon the decision of a question of law, the full bench of the supreme judicial court, upon appeal, exceptions or report or otherwise, may, if satisfied that it has before it all the facts necessary for determining the question in dispute, direct that such judgment or decree be entered ... as shall accord with the determination of the full court . . ..” See Adams v. Silverman,
We have discussed the principal contentions of Shawmut. Other questions argued by it have not been overlooked. We find nothing in them that requires discussion.
The entry in all of the cases must be
Exceptions overruled.
Notes
There was evidence that the dеpartment of public utilities of Massachusetts had issued a plate which allowed Shawmut to operate Keeler’s tractor within the Commonwealth pursuant to the provisions of G. L. (Ter. Ed.) c. 159B, inserted by St. 1934, c. 264, § 1, and amended, and that this “plate was in full force and effect on February 28, 1942.”
These regulations are found in the Federal Register. In U. 8. C. (1940 ed.) Title 44, § 307, it is provided that “The contents of the Federal Register shall be judicially noticed.” To what extent, if at all, this statute was intended to apply to proceedings in State courts was left open in Glover v. Mitchell,