286 Mass. 168 | Mass. | 1934
It is admitted, or not denied by the insurer, that the injury to Joseph Chernick from which he died occurred February 4, 1932, between 7:30 a.m. and 8 a.m. ; that the place of injury was Seekonk, Massachusetts; that the cause of the injury was a collision between an automobile driven by Chernick and two other automobiles; that Chernick was an employee of The A. L. Nichols Company with places of business at Fall River, Massachusetts, and Providence, Rhode Island; that the employee is survived by his widow, Faye K. Chernick, the claimant, and one child, Ernest Kramer Chernick, born August 13, 1931; and that they were dependent upon the employee at the time of his injury and death. It was further admitted, or not denied, that the deceased lived in Providence, and was a collector for The A. L. Nichols Company, an instalment furniture house in-Fall River.
It appeared from the testimony of the claimant that she overheard her husband’s talk with the witness Simons and heard him say, among other things, that “he would start early in the morning to give the change.” Against the objection and exceptions of the insurer the claimant was permitted to testify, in reply to a question, as to what her husband told her of his conversation with Simons; her answer was that her husband “told her Mr. Simons wanted to know why he didn’t bring.the cards and the cash in and why he didn’t bring the change to a customer and [told him] to make sure that he leave tomorrow morning early”; she further stated that “her husband told . . . [her] to wake him up early in the morning he had to leave earlier than usual.” This testimony clearly was a private conversation between husband and wife, and was obnoxious to the first -exception stated in G. L. (Ter. Ed.) c. 233, § 20. It follows that the insurer’s exception thereto, if material to the issue involved, must be sustained.
The claimant testified that her husband ordinarily left for work about eight o’clock; that on the morning of February 4,1932, he left about 7:30 or quarter of eight; that it is about seventeen or eighteen miles from her residence to the center of Fall River; that her husband was supposed to be at work at 8:30 o’clock; and that he was having his own car repaired the morning of the accident and was using a dealer’s car. The witness Simons testified that Chernick did not have route slips for the day on which he was killed; that he would have to report to the Fall River office for them.
As above stated it was in evidence and not disputed that Chernick left his home a little earlier than usual, in an automobile hired for the occasion by him, and was involved in an accident near “Charlie’s Diner” in Seekonk. This place is located approximately at the junction of the Fall River-
The decree in the opinion of a majority of the court must be reversed and judgment entered for the insurer.
So ordered.