Jordan v. Velozo

266 Mass. 76 | Mass. | 1929

Wait, J.

Under leave reserved pursuant to G. L. c. 231, § 120, the trial judge, after a verdict for the plaintiff, ordered a verdict to be entered for the defendant. The plaintiff’s exception to this order must be sustained. We are unable to distinguish the case on this point from the decision in Boyd v. Taylor, 195 Mass. 272, which we regard as controlling. It was there held, on evidence substantially the same as that in the case before us, that a jury would be justified in finding the employer negligent in failing to warn the employee of dangers attending the operation of the sausage machine. A different verdict might well have been anticipated from the jury; but we cannot say, in view of the case cited, that its finding was erroneous in law.

The defendant has also presented a bill of exceptions which, since the plaintiff’s exceptions are sustained, must be considered.

He contends that there was error in the refusal to instruct the jury in accord with his requests for instruction numbered 5, 6, 8, 9, 12, 13 and 14. The subject matter of all, except request 14, was dealt with in the charge, and, in substance, these requests were given. The judge was asked by request 14 to instruct the jury that, “Even if the plaintiff had a valid claim against the defendant resulting from this accident, if there was an oral understanding between the plaintiff and the defendant that the p'aintiff should make no claim against the defendant in return for the business which the defendant gave him, then the jury should find for the defendant.” The judge was justified in refusing to give this instruction in the form requested; but in some form the defendant was entitled to have the jury pass upon the truth of his contention that an accord and satisfaction had taken place which defeated any right of recovery.

There was evidence that, months after the injury, the defendant had offered to give to the plaintiff a business established by the defendant in Providence, Rhode Island, in return for a release of all claim for damages arising from this accident; that the plaintiff accepted the offer, received the business, and carried it on, but never gave any release in writing. At a later time negotiations for exchange of a bill of sale and a release had been undertaken but had fallen through. The judge charged, correctly, that here was no written release and that talk about a release was not to be taken as any admission of liability on the part of the defendant; but also said, "Well, I instruct you . . . that if the plaintiff is entitled to recover, the arrangements or negotiations entered into between Mr. Jordan and Mr. Velozo and the transactions which took place did not as a matter of law operate as an absolute release of Mr. Velozo from any liability, if any exists or you find any exists . . . The jury might well fail to understand that, whether or not a written release was given or agreed to be given, the transfer of the business and its acceptance in lieu of any claim for damages would constitute an accord and satisfaction which, as matter of law, would put an end to liability. Vaughn v. Robbins, 254 Mass. 35. Although the evidence did not require finding that an accord was made and satisfaction given, we think that it was sufficient to sustain such findings if made by the jury; and, therefore, that the defendant was prejudiced by the failure to instruct with regard to accord and satisfaction. His exception is sustained. It follows that a new trial must be had, and order be made:

Plaintiff’s exceptions sustained.

Defendant’s exception sustained.