*1 Goldstein v. Gontarz. 1, “Yes,” B, question questions
4. We answer A and “No.” The Housing cases are remanded to the Court of the City disposition. of Boston for
So ordered. Louis vs. Theodore Gontarz & another. 7, 1973. 20, 1974.
Suffolk. November March Tauro, C.J., Reardon, Kaplan, Wilkins, Present: Quirico, & JJ. Negligence, vehicle, Practice, Civil, Contributory. Charge Motor jury; trial; Error, Exceptions: Conduct of whether error harmful. Whether Act, Compensation per- error harmful. Workmen’s Action third Words, son. “Extremecare.” tort, In an action of evidence of the circumstances in which the injured standing was as he docking bay was in a warehouse and direct- ing defendant, backing fifty-foot a truck driver a tractor-trailor bay, require ruling into the did not a of law that the was con- tributorily negligent. [804] personal injuries allegedly arising In an negligence action for from backing fifty-foot docking bay defendant in tractor-trailer into a of a warehouse, judge charge, there was no reversible error where the his correctly stating single care, repeatedly after standard of due used discussing backing the words “extreme care” in of vehicles. [805-807] action, negligence permitting plaintiff, opening In a in the statement of again testimony, interject his counsel and in his he the fact that had elected not to receive workmen’s benefits and had not money employer expenses prejudicial received from his for his was error by any jury. Tauro, which was not cured instructions to the [807-814] C.J., dissenting. negligence per- No abuse of discretion was shown at the trial of a action in mitting plaintiff’s during closing argument to use counsel his form, indicating plaintiff’s damages even blackboard tabular though place the blackboard remained in while the delivered charge. [814-815] negligence judge’s"reading At the trial of a action there was no error in the jury setting portion large of the writ out a ad damnum where figure “arbitrary” instructed that it respect damages.” “did not mean much with [815-816] August 1970. Superior Court dated Writ Tort. *2 Kelleher, J., the judge of was tried before The action authority. sitting statutory under District Court Lynch for the defendants. A. Daniel plaintiff. the Newton Esdaile for J. which injuries in personal In this action for J.
Kaplan, against the verdicts recovered Louis the defendants, Theo- Corporation agent and its Transport Yale Gontarz, denying did not err in dore we hold that verdicts, but that the defendants’ motions directed put irrelevant judgments cannot stand because the prejudicial matter before the and the failed and points action. We also discuss other take corrective on a new trial. arise they appear to
We state the facts of the accident as could jury. employed by J. was as a foreman Company, Incorporated, a wholesalеr of nails and Shore & activity burlap products. He was in warehouse including loading unloading through dock- trucks 10, 1969, ing bays. the accident on March he At the time of fifty-two years age, had worked for J. Shore since was $200 earning and was about a week. . fair, day. eight inches of snow March 10 was a cold Six to lay yard. The truck from two snowstorms the warehouse icy. and made it somewhat packed traffic had the snow at morning, a J. Shore truck was When work started that truck bay plaintiff helped to load it. After bay, of the defendant Yale Trans- moved out of the a truck Gontarz, the defendant port Corporation was backed unassisted.
The Yale truck consisted of a diesel tractor about twelve to long fifteen forty-foot body feet and a trailer whose was eight eight high about feet wide and feet and stood about four ground. and one-half to five feet from the The tractor adjustable giv- had rear view on both sides of the cab mirrors ing a view the sides and rear of the trailer. Forward the wheels; had two wheels and in the rear tractor two dual rear wheels. Each wheel was air-braked trailer had four accelerator, con- pedal, inches from the single brake three weighed five tons and trolled all the brakes. The tractor bailing twenty nearly tons of nails and hauling a load of wire. ground. four feet above
Bay approximately 3 was eight yard pitched bay ten feet in front of From eight wide and open bay was feet up to the dock. The inches nearly matching the width and high, thus eight or nine feet On each side of body of the Yale trailer. height of the faced dockboard, bay, a steel within an inch of end fastened, wide eight inches been about bumper rubber had inches from long, about four protruding inches and sixteen *3 surrounding building building. The surfaces the the face of docking A held spring and brick. bay were of concrete the lip, protruding with a sixteen inch square feet plate, six vehicle flooring bay. the When a inside part of the formed docking the bay, operator would raise to the the was backed lever, lever, lip with another out the with a hand draw plate vehicle, walking the lip onto the back of lower the and then flooring for it to insure a firm driving a fork lift over it or on unloading purposes. loading and The Yale truck of March 10: with the events Resuming bay, low- backed, the plaintiff, from inside the having been trailer, the and onto docking plate over lip of the ered the running lift of a fork byit means to unload proceeded and over the trailer warehouse and the forth between back and re- nails were pallets of lip. its As docking plate and the rose, the up pushing gradually moved, of the trailer the end overhang shortening the thereby and docking plate the lip of movement flooring for the breaking up the and the trailer had the nails three-quarters When about the forklift. Gontarz defendant removed, told the plaintiff been end of getting too close trailer was edge of the back or fif- out ten pull the truck Gontarz to lip and instructed readjust. teen feet but it became stuck out truck drove
Gontarz with two other J. Shore plaintiff snow, Gontarz so Goldstein Gontarz.
employees removing snow and ice from the rear set about then plaintiff wheels of the tractor and the trailer. The told go shop Gontarz to wait and he would into the and direct bay. okay plaintiff him back to the Gontarz said and the bay through building went the office to the warehouse platform (as the left hand end one stood at the front of yard) into the with one on the ce- looked out warehouse foot docking plate. ment and the other on the The took up position this before Gontarz reentered the tractor. Gon- times, tarz rocked truck back and forth a few then slowly backwards, signal- started the truck with the plaintiff Gontarz, see, ling sweeping whom he could not with a hand, motion of his left the arm extended the side of building. When the trailer had come within a few feet of platform, plaintiff signalled with his left hand to stop. stopped. The The plaintiff signalled truck then with the back, sweeping again, motion slowly and the truck started coming, slightly angle, at an within a few inches of the bumpers. plaintiff again signalled The stop, and the truck stopped two inches from the bumpers. looked down to make sure that the trailer was in position to receive lip docking plate. There was a roar of the truck and, motor beforе the had a chance to withdraw his arm, left the truck lurched bumper, back over the left ram- *4 ming bay the corner and wall left platform. of the plaintiff’s caught arm was between the truck and the corner. severely permanently The arm injured. was part, On arrange- his Gontarz testified that there was no plaintiff bay, per- ment for the to direct him into the that he backing unassisted, operation looking formed the in the mirror, left, right sight hand the not and that he had no plaintiff nothing any signalling by and knew him. Two officers, however, police testified to a conversation with appear Gontarz after the accident that from which it would taking Gontarz plaintiff; was directions from the plaintiff testified that Gontarz admitted to him at hospital slipped that his foot had off the brake and onto the accelerator. 800
804
364 Mass.
mo
1. The defendants claim error
denial of their
verdicts,
insisting
not
wаs
tions
directed
that Gontarz
negligence,
free of
but that the
should
found
have
contributorily negligent
matter of
plaintiff
have been
plaintiff
establishing
law. The burden of
was con
231,
defendants. G. L. c.
tributorily negligent was on the
1973,
1969,
761,
c.
and St.
(prior
amendments
St.
85
in an
situa
1123).
only
exceptional
It
in a “rare” case
c.
has
proponent
law that a
it can be ruled as matter of
tion that
Nawn,
28,
Inc.
30
Halley Hugh
v.
356 Mass.
met this burden.
York,
(1969). Joyce New
H. and H.
Mass.
v.
N.
R.R. 301
361,
It is
(1938).
363
We do not think this is
a case.
such
his arm
argued
extending
that the action of the
fifty
directing
while
truck
in a cab
wall
driver
see,
away,
utterly heed
feet
whom he could not
amounted to
it
find that
less conduct. But on
evidence the
could
agreed
give
would
to the move
was
directions as
truck,
understanding
in pursuance
ment of the
that
of the
end,
nearly
given
directions
and followed
to the
that
were
arrangement
foolhardy, and its
was not
execution
Moreover,
part
safety.
plaintiff’s
not indifferent
to his own
hough
duty
It
it was the
of the
to exercise
“[a]
reasonably prudent person
under
the circum
care of
all
stances,
that
rely
assumption
he
to some extent on the
could
hit
would
some
to avoid
the driver
the truck
exercise
care
488,
Keogh Storage
ting him.”
v.
Co.
Dube
Burgoyne,
v.
317 Mass.
See Falzone
Bloom,
(1943). In the circum
314 Mass.
Holden
eyes
say
lowering
we
plaintiff’s
stances
cannot
moment,
stopped
platform
for a
after the truck had
dock,
conclusively
Fer
from
shows
a lack of care.
inches
Hewes,
Runnells
rairs
considering
And
how
Cassidy,
truck,
lurch of the
fault
sudden
the backward
nothing to the
contributed
plaintiff could be found
have
Phillips,
(1901).1
injury.
Neylon
Cf.
*5
case,
situations
present
involve
on
the defendants
authorities relied
1Unlike the
dangers,
precautions
ignore
deliberately
no
plaintiffs
to
took
сhose
obvious
in which
v. Gontarz.
negligence
accept
now
that Gontarz’s
The defendants
2.
judge
they
jury,
but
contend
question was a
erroneously
that matter.
on
instructed
first,
style,
that
charged,
conventional
judge
The
care,
degree of
the failure to exercise
“[njegligence is
would
ordinarily
person
safety
prudent
diligence and
that an
touching on
After
circumstances.”
under similar
exercise
subject, and
points,
returned
several other
is an
“backing of a vehicle”
amplification said that
only be undertaken
which should
“operation of a vehicle
language from
quoted
The
then
with extreme care.”
Pitaro,
109,112
further:
(1933). He said
Minsk v.
you’re back
when
of the driver’s view
“It entails a limitation
only with ex
something to be undertaken
ing up; and it’s
operator.” Twice
diligence
part
of the
care and
treme
passage
in this
repeated
“extreme carе” were
more the words
all
excepted to
charge.
objected and
of the
The defendants
judge.
but the initial statement
passes
it
we believe
exemplary,
was not
but
deciding
negligence, the trier
muster. In
whether there was
ordinary
act in the
person
prudence
how a
would
to ask
Cor
Kane v. Fields
circumstances. This is
sole standard.
Grille,
(1961). Restatement
ner
Inc. 341 Mass.
Prosser,
Torts,
p. 181
(4th ed.)
2d:
Torts
298§
sure,
prudent per
(1971). To be
the amount of care that the
circumstances,
with the
the care
son would exercise varies
harm
increasing
severity
likelihood
Dunton,
threatened,
(1933);
v.
Adams
31, 35
Clough
England
New
Tel. & Tel. Co. 342 Mass.
v.
others,
themselves,
protection
expectation
protect
from
and had no reasonable
to
Ry.
Neylon
Phillips,
(1901);
St.
v. Middlesex & Boston
179 Mass: 334
O’Neill
Barry
Stop
(1957);
&
v. W. T. Grant Co. 335 Mass.
Mass. 510
Shop,
O’Neill
York,
v. New
N. H. & H. R.R.
Inc.
such
ion as to the manner in which
themselves.”
that it is
to find a
definite
persons
conduct
who find themselves therein should
they
charged
exercise
duties because
been
with such
have often
4Common carriers
instrumentality,
consequences
lack of care
complete
and the
of a
control of the
Ry.
Carson v.
St.
Bannister v. Berkshire
be drastic.
Taxi,
3. In opening his remarks jury, plaintiff’s to the “Now, counsel said: Mr. will tell that at the time he was working for J. injured, Shore and was that he could have taken his Compensation Workmen’s rights, but he didn’t do that. He has rights taken no any of kind. He has elected to take rights whatever got he’s against Yale and the defendant you Gontarz. He will tell he rights, has taken no money hospitalization, no no employers. from money his He’s elected to take rights got whatever he’s these suing defendants we are now.” plaintiff’s When the counsel spoken degree 7Seen. 3 above. The court has of “a of care with the commensurate probable consequences,” Spinney, (1942), harmful Thomas v. 310 Mass. Pelton, caution,” Wilgoren but the usual reference has been to “reasonable 266 466 (1929), “ordinary care,” e.g., Tighe, Mass. (1911); or Dowd v. Whittall, Bullard, Smith v. Walker 288, 290(1944). Mass. 800
Goldstein Gontarz. opening speech, concluded his the defendants filed a motion ground prejudice, for a mistrial on the but the motion denied, trial, exception. In the course of the when behalf, plaintiff was called as a witness in his own he was testify counsel, questioning by allowed to under and over objections you exceptions: defendants’ “Did ever Q. “No, Compensation?” take “Have Q. Workmen’s A. sir.” you penny Compensa- ever received a from the Workmen’s “No, any tion carrier J. Shore?” A. “Have Q. sir.” [of] Shore, your your hospital paid medical or bills been J. “No, any employer, carrier his?” A. jury sir.” The in his remarked that coun- in their were not evidence and that openings sel’s statements swayed by sympathy, judge’s should not be but the only any approach subject words that made to the actual quoted opening testimony make were: “It doesn’t plaintiff] difference whether he has had some [the *8 money injury. negligent source of to live since A which his right you defendant would have no to ask to diminish the reason, plaintiff’s damages for that since the defendant supply didn’t it.” the fact a case where
Although we have never ruled on of, compensation nonreceipt against, workmen’s or election action, implication of interjected negligence in a prejudicial unless here and elsewhere is that it is law settled First, ordinarily may not way palliated. some v. against liability. Braun is insured that the defendant show Bell, 437, (1924). Gladney 247 442-443 v. Holland 366, Prosser, (1957). (4th 368 Furnace Co. 336 Mass. Torts 83, p. (1971). Exposing juries 549 such information ed.) § probative because it is not itself relevant is condemned for verdicts to lead to undeserved and is taken proposition readily jurors will which exaggerated awards plaintiffs for paid companies supposedly insurance load on faceless (1940). (3d ed.) 282a Wigmore, Evidenсe taking § the risk. — may not a defendant counterpart proposition Second other plaintiff has received show that the Gray policy, insurance whether from an accident injury, 809 v. Goldstein Gontarz. Ry. (1913), from work- Elev. 146
v. Boston
Guyette,
v.
759
compensation,
men’s
Benson
Foundry
Co. Inc. 342 Mass.
9
(1965); West Molders
annotation,
(1961);
(1961),
77 A. L. R. 2d 1154
from an em-
Rettie,
(1934),
ployer, Shea v.
458
or from
sources,
Socony
Inc. 375 U.S.
Tipton
Co.
other
Mobil Oil
253
(1963); Eichel v. Atew York Cent. R.R. 375 U. S.
34
2
Rapid
Transit Dist. Cal.
Southern Cal.
Helfend
where, by
Again
1
the information is irrelevant
3d
rule,”
receipts
reason of the so called “collateral-source
go
the defendant’s
from the outside source do not
to reduce
liability; yet jurors might
irrelevancy
led
to con-
be
plaintiffs’
unimportant
sider
claims
or trivial or to refuse
them, believing
verdicts or reduce
plaintiffs’
that otherwise
Schwartz,
unjust
recovery.
there would be
double
See
Rule, 41
Collateral-Source
B. U. L. Rev. 348
Law,
Third,
Ann. Surv. of Mass.
2.7.
a defendant
is not
§
permitted
imply
protected by
to assert or
that he
not
insur-
ance; especially
proscribed
is this
when there
been no
has
improper suggestion
opposing party.
of insurance
Such statements are considered
plea
pov-
tantamount
to a
erty,
only
prejudicial
not
irrelevant
they might
but
in that
jurors
giving
influence
toward
compassionate
defendants
but
strictly
personal liability.
unmerited relief from
Piechuck v.
Starr,
Magusiak,
H.
(1926). King
82 N.
2d
Wash.
Marvin,
(1953). Socony
119-121
Co. v.
Vacuum Oil
McCormick,
(2d ed.)
Mich.
Evidence
201, pp.
(1972). Appleman,
Insurance Law and
§
Practice,
Annotation,
2d
A. L. R.
*9
—
situation,
(1949).
approach
present
Fourth
here we
the
a
—
counterpart
plaintiff
of the third
a
is forbidden to show
compensa-
that he
no
to
or
has
resort
insurance
workmen’s
he
In
where
tion to cover the loss
has suffered.
the few cases
issue,
plaintiffs
that
have forced
courts have indicated
rejected
grounds
irrele-
this evidence should be
on like
prejudice,
prejudice running
against
here
de-
vance and
Snyder
Lehigh Valley
245 F. 2d
fendants.
R.R.
Osmundson,
(1939).
(3d
1957).
Cir.
Lee v.
It be that the third and fourth classes of cases encourage differ from the others in that there no is covert law, jury disregard ment of the rather there is em phasis upon controlling thus, jury law: to tell the that plaintiff compensation has not received a workmen’s — — award mеrely so it be contended to underline or by establishing reinforce the collateral-source rule that payment, jury might there was no collateral as the other fact imagined. customary prophylactic wise have But the state ment collateral-source rule a and his exclu thing sion of evidence in accordance with it are not the same proof party proposition as deliberate of an immaterial freighted explanation. with innuendo and left without See Magusiak, But supra, Piechuck v. 82 N. H. at 431 see Falknor, Evidence, 29 N. Y. U. L. Rev. is, moreover, important message that the that
It observe conveyed plaintiff’s counsel here to the was not merely plaintiff had not received workmen’s com against message that he had elected it im pensation but plying supreme plaintiff’s confidence on the side action, disclosing but far frоm the true nature cause meaning of the election.8 (as accident), plaintiff 8Under G. L. c. § 15 in effect at the date of the compensation relinquishing could have taken his workmen’s award without pursued common law claim the defendants as If tortfeasors. the insurer succeeded,
claim and payment it would reimburse itself out of avails of the action for its plaintiff him; pay four-fifths of balance to if the insurer claim, pursue so, reimbursing failed to taining expense could do the insurer and re the entire balance for himself. The insurer and the would share the any attorney’s they might agree, brought fee as but if the insurer the ac required expense disproportionate tion the could not be to bear an to his recovery. Foundry See West v. Molders Co. Inc. 342 Chaves Weeks, 156, 158 (1922). Why plaintiff rejected present left case was conjecture. *10 811 364 Mass. Goldstein v. Gontarz. strong, explanation
Had a even-handеd and clarification of the compensation problem forthcoming workmen’s been judge, saved, from the might the situation have been prejudicial some other during cases disclosures counsel’s opening during judge’s charge trial.9 But here the was not curative. The caution that counsel’s statements are not evi dence objectionable was insufficient because the informa tion was also introduced on the direct examination of the plaintiff. rule, And the reference to the collateral-source cryptic made, unelaborated form in which it was might even led have they to believe that should add what might have received under workmen’s compensation damages Surely otherwise assessed. given instructions were “rigorous not that emphatic ac tion on part judge” required in predic similar by past aments our decisions. Bay London v. Ry. State St. 480, 231 Mass. 486 (1919). Crehan, Commonwealth v. 609, Mass. 613-615 (1963). Cf. Shea v. D. & N. Motor Transp. 553, Co. 316 Mass. (1944); 554-555 v. Leven Salter thal, 679, 337 Mass. 698 (1958); v. Stop & Shop, Inc. Luz Peabody, 198, 207-208 (1964). Nor do we think the defendants were required apply for a corrective in struction after had twice flatly against ruled them. Doherty Levine, 418, Heina v. Broadway Fruit Mkt. 608, Inc. 304 Mass. 611 (1939). Com Smith, monwealth v. 185-186 Attendant speak factors also
present case.10 The reference to inferentially not even probative of a proposi- relevant tion.11 It responsive was not tendentious remark defence, and was introduced not inadvertence but 9See, e.g., Dempsey v. Goldstein Bros. Amusement Co. 231 Mass. (1919); Transp. Shea v. D. & N. Motor Co. 316 Mass. 554-555 Salter v. Leventhal, 679, 697-698 (1958); Stop Shop, Peabody, & Inc. Luz Motors, Mass. (1971). v. DeVoe Fialkow Inc. 359 Mass. listings 10For determining factors that prejudicial be relevant in effect insurance, 2d, of mention of (1967), Evidence, insurance or lack of see 29 Am. Jur. § 407 Appleman, Practice, Insurance Law and § 12834 11See, below, at n. 13 coverage discussion of use of the fact of insurance or the like proper probative purpose. for a
deliberately.
Kennedy
354,
See
v. Armstrong, 223
358
Talerico,
(1916);
285,
Trout v.
(1946);
237 Iowa
Lewis,
76,
Stehouwer v.
249 Mich.
82 (1929); Ostrowski v.
Mockridge,
265,
242 Minn.
(1954); Bridgeforth
270
v. Prof
fitt, supra,
W.
(Ct.
1973).
490 S.
2d at 425-426
App. Mo.
Competent
conscious,
counsel would be
in
light
of the
authorities,
condition of the
of the manifest risk of error.
approach
Still no
was made to the
alone for an ad
ruling,
presented
vance
rather he was
accomplished
with an
only
point
fact. Not
was the
made
opening;
at the
it was rub
by testimony
plaintiff himself,
bed in
with the
lending
approval
overruling
specific
objection
to it.
Mass,
Inc.,
Broadway Fruit Mkt.
supra, 304
at
See Heina v.
Foster,
Murray
655,
(1962).
611
660
Cf.
R.R.,
Snyder
Lehigh Valley
supra,
(3d
We against are aware that the rules introduction of matters coverage insurance or the like have come under attack. that, point Critics out except they guard as against more or explicit juries less appeals to simply presence based on the coverage, absence of very keep the rules are not effective ing subject McCormick, away from the triers. See Evi (2d ed.) p. (1972); Wigmore, dence (3d Evidence § 282a, ed.) pp. up It possible is not to set insurance, secure bulkheads especially hints about concerning may proba some information it be admissible as proposition, say credibility tive of a relevant “control” or particular aof witness.13 When the information is thus rele- $350,000. Compare 12Theverdicts were each in the amount of the blackboard figures mentioned below. 13See, Rice, e.g., (1904); Dempsey Perkins v. v. Goldstein Bros. Beraldi, Amusement Co. 231 Mass. Marsh v. may inadvertently through nonresponsive Insurance also enter a case vont, may it still ground pre- be excluded on the that its judicial value, outweighs probative effect its but such judgments appeal. Again, are delicate and invite even when the trial record is barren of mention of the cen- subjects, they may sored insinuate into the case themselves through assumptions by jurors, example, casual assumptions prevalence liability about insurance or Kalven, availability compensation. Law, Jury, Award, Injury Damаge and the Personal Ohio St. L. (1958). Wigmore, supra, J. It at 146. *12 jurors sometimes prone said that are so that to assume has been received industrial ac- cidents that a who has not in fact received an award should be entitled to have that given information to the jurors right in order to the balance in their minds. See Mc- Cormick, supra, at 481-482. Cf. 1950 Ann. Surv. of Am. Law, 809, n. 13. On reasoning, similar if it be true that jurors assume that generally carry liability defendants insur- ance, they then should given be told when a defendant is not 2d, in fact Evidence, covered. Cf. 29 Am. Jur. 405§ view, In this even the amounts of the awards the or dollar liability limits of the might insurance also be candidates for disclosure. See v. Tourangeau, Wilbur 116 Vt. assume, jurors But what only guess; we can nor do
we know what follows from
assumptions:
assump-
the
the
on
liability
tion that
widespread,
jurors today
insurance is
are
insurers,
indifferent
to the size of
they
verdicts
or do
rather consider the effect of verdicts on the insurance rates
they
which
will themselves
pay?
have to
In a welter of un-
assumptions
jurors
verified
likely
as what
are
to assume
varying situations,
think
or to
it is understandable that
simply
they
courts have
way
done what
could in the
of ex-
evidence,
cluding
general
irrelevant
and have relied on
cau-
tionary instructions.
reply
witness, e.g.,
Mockridge,
(1954),
of a naive
Motor
What from consideration of the decisions writing procedure critical is that to a for advance attention may prove helpful. appears deliberation When it question coveragе mention of will in a serious arise way, where feasible with counsel should consult beforehand dis- to how the matter should be handled. Such conference, place may pre-trial cussions well take at soon by be Civil Pro- encouraged Rule of the new Rules of go July into on cedure effect 1974. See Mazzuchelli Silberberg, Wigmore, 282a. supra, 29 N. J. many cases, minimizing sub- excluding In reference during trial, by a neutralizing any effect ject proper will In the bet- charge, be sound course. some cases frankly coverage course be to have the facts as to ter commentary. jury, again appropriate disclosed to the disclosure, Preferably,the commentary, should as well as forays by counsel judge. be Unannounced unilateral case, trial, present perilous as in course of are careful, We efforts cooperative should be avoided. welcome judges counsel and trial on the lines described. closing argument plaintiff’s used During 4. counsel deliv- while place which remained in blackboard *13 were:$27,358 in med- charge. up in form ered his Set tabular bills; $200 time $33,000 wages of a week from the ical loss at trial; $150,000 earn- of of future the accident to time loss of rate, fifteen assuming period of ings roughly at the same — $100,000, be- years (or assuming years) expectancy life ten $210,358 (or years. total ing shown nineteen The precise grounds The of the defendants’ $160,358) damages. clearly in are not shown objections to the blackboard record, following comments are order. but the discre graphic aid is use a blackboard as
Permission to
not
is
tionary
trial
abuse of discretion
with the
214, 219-
Casualty
Am. 208
v.
Co.
Mass.
shown. Everson
of
Heath,
Com
(1923).
v.
Mansell but all events the contention is not borne out a review of the light of so much of the evidence as is embodied exceptions. in the bill of
Objection judge’s reading was taken to the portion $1,000,000. setting the writ out an ad damnum *14 figure “arbitrary”; said that was that does not “[i]t respect damages, you mean with if dаmages much so find not provides: shall Ed.) “The courts (Ter. c. Laws 14General testimony fact, they may the law.” and respect state juries of but to matters error, Although in this emphatic case.” we find no more lan- guage could well have been used to dismiss ad damnum wholly being significance as without finding aof proper Cf. Stop Peabody, verdict. & Shop, Inc. Luz of Mass, supra, (1964).15 at 207
Exceptions sustained. majority I dissent from (dissenting). C.J. Tauro, following reasons. opinion for effect argument is to the simplistic rather The defendants’ compensation, workmen’s had received if the that irrelevant. inadmissible as have been this would evidence of contend, plain- Therefore, evidence the defendants irrele- was also compensation workmen's tiff did not receive the defendants prejudicial was so its admission vant and trial. require a new as to irrelevant, it disputed evidence assuming that the
Even
prejudicial
was so
its admission
how
difficult to rationalize
argued that
it can be
error unless
reversible
to constitute
jury speculate rather
entitled to have
were
the defendants
I believe
phase of the case.
about this
the facts
than to have
of com-
is a matter
workmen’s
of
the existence
in
left
jury
are
When
knowledge in all such actions.
mon
not received
or has
has
whether
dark as to
likely
least some
it is
that at
compensation,
damages,
contend,
mitigation
in
jurors would
portion
for a substantial
compensated
been
had
jurors
bills. Other
his medical
earnings and for
loss of
immemorial,
pleadings
opening,
have
from time
15“In this Commonwealth
(1848)
(1834)
Colby’s
jury.
At
Practice
238.
Howe’s Practice
252.
been read to the
trial,
in
443,
final
custom
declaration and answers
their
form
the close of a
arily go
including
the writ and
Fuller,
Although
jury.”
235 Mass.
Woodworth
procedural pur
may
necessary
writ
be
for various
the ad damnum the
history,
disclosing
justification,
the ad
poses,
for
to be little
besides
there seems
recovery
jury.
be in
limit the
and
It does not in fact
amount
damnum to the
Ridgway,
The tend proposition. my to the latter In opinion the sounder view is one which avoids the “ostrich head in the but, approach instead, sand” permits jury, arriving in at verdict, truth, to know namely, plaintiff that the re- compensation. ceived no workmen’s I perceive cannot how improperly this could jury’s add one iota to the verdict. I re- spectfully majority submit that the opinion opted has path speculation which invites conjecture part on the jury arriving of the at a my verdict and I must note dis- agreement. majority
The opinion notes appears the “verdict large” leaving possible inference that it would have been less if the had not been aware that had not collected cоmpensation. workmen’s If this is the inference intended logic escapes its Moreover, me. the amount award- ed for the permanent total and arm, loss of the use of one resulting in almost disability total as to employment future and very bills, substantial together medical pain with suffering, appear does not to be unreasonable or excessive. majority opiniort points out could accepted have compensation and still his retained right against of action the defendants if the workmen’s com- pensation insurance carrier did not initiate the action within statutory period. requires This a discussion of some of practical aspects situation. Had the col- compensation lected workmen’s negligence claim defendants, if carrier, exercised would have been in the exclusive control of the latter. It is plаintiff, understandable that a especially injuries case, serious as those in the prefer instant would to control litigation his own rather than leave it in the in- hands of an v. Gontarz. primary recoup surance carrier whose interest would be to expenses.1 its The mere fact that a settlement such cases n mustbe approved by Industrial Accident Board or *16 give plaintiff feeling of the court does not the the same security protection and that he has when the control of the trial, litigation, essentially whether in settlement his. or is point urged by majority namely, A opinion; further the plaintiff’s way unduly in that the election some influenced jury thinking plaintiff the in had an overabundance righteousness against the the of confidence as to of his claim Again, logic defendants. the and rationale of this contention Admittedly, electing proceed elude me. the in to dеfendants, against collecting his initially the rather than losing everything compensation, took the risk of workmen’s against prevail if he failed to the defendants. logical more conclusion is that the had
I think a weighed carefully possibilities probabilities the and and economically pro- it in decided that was his best interest to against person injuries. the who caused ceed case, liability a as the instant there could be 1Wherethere is a close case on such injured plaintiff (employee) the and those of serious conflict between the interests money Having very compensation paid carrier. a substantial sum of protect by way compensation employee its of medical bills and and in order to to the strong interests, compensation make out a case the insurance carrier could own liability third-party questionable) (especially a defendant is for where the substantially potential against the tortfeasor for less than its settlement of the case circumstances, Accident In it would be reasonable for the Industrial value. such approve Superior noted to the settlement. Here it should be Board or a that the name Court employee represents lawyer brings him in on behalf of the who action only. compensation carrier. client is the insurance His real hand, proceeds employee compensation his own if waives the other On very defendant, complete third-party against from its he has control of case try according adjust inception. to what he the case or it to a conclusion He can interests. to be his own best believes per- by compensation employee between a claim for As to аn election defendant, injury third-party 15 of extensive revision of see action sonal January injuries occurring by applicable after c. to G. L. c. St. election, entitled, compensa- employee from that date on is without 1972. Compensation provided The em- Act. Workmen’s tion and other benefits ployee tion third-party right complete ac- over the to initiate the control can maintain accepts compensation. bringing The in- at law before he claims the actioti employee third-party right has filed a action unless the to initiate a surer has no claim ” accepted compensation agreement. or has This “under an know, jury underpins permitting history legislative the interests of fairness men’s the rationale of further employee’s accept justice, election not to work- prior January injuries compensation in where occurred 1972. cases Commonwealth v. Fiore.
It plaintiffs they is a risk that most opt take when for a jury refusing they trial after unsatisfactory what consider an settlement. A pre- verdict should not vacated absent a be judicial a possible error or miscarriage justice. perceive I neither in In my injustice this case. depriving view lies of his verdicts for no valid compel- reason and ling him undergo delay and expense long of another trial. *17 vs. Richard M. Fiore.
Commonwealth January 9, 1974. 25, 1974. Suffolk. March Tauro, C.J., Reardon, Braucher, Hennessey, Present: Kaplan, & JJ. Practice, Criminal, Appeal; Exceptions: exception; failure Ques- to save tioning by judge; Evidence, by judge. witness Comment Admissions confessions, Competency, Hearsay, discretion, Judicial On cross- examination, Leading question, Questioning by judge. of witness Witness, Refreshment of recollection. theAt trial dangerоus of indictments for weapon, assault means a youths, evidence that the victim group was in a stabbed brawl with a participated brawl, had defendant two that on occasions stabbing fight after tim, had heard the defendant admit the vic- friends following police the defendant had told a of- and that his arrest pocket during fight pulled a knife but had ficer that he had from his it, dropped warranted a verdict guilty. that the defendant was [821-822] grand jury Where a witness at criminal trial who had testified before concerning an admission made the defendant to do failed so at first trial, examining testimony at the after but his earlier stated that his refreshed, memory grand and then testified as he had before jury, testimony hearsay, only impeach was not admissible credibility, witness’s but constituted affirmative evidence. [823] trial, giving When ambiguous a witness at a criminal after and contradic- tory testimony, adopted prior as true a statement which had been ad-