Kenyon v. Vogel

Nov 26, 1924
Reporters:
,
Before:
Braley
Braley, J.

These are actions of tort in which the plaintiff in the first action recovered damages for personal injuries^ and the plaintiff in the second action recovered damages for injuries to his automobile. The plaintiff Dimick on Sunday, May 16, 1920, was driving his own automobile on a public way in the town of Norwood, in which the plaintiff Kenyon was ‍‌​‌‌​‌​​‌​​‌​​‌​‌​​‌‌‌‌​‌‌​‌​​​​​​​​‌‌​​​​​‌‌​​​​​​‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌‌​​​‌​​​‌​​‌‌​‌​‌‌‌​​‍also riding at his invitation, when it came in contact with the automobile of the defendant, in which he was riding, driven by one Huskins, who was not specially licensed. G. L. c. 90, § 12. The record states, that both cars were going in the same direction, and that the right hand front portion of the defendant’s car came into collision with the left hand rear portion of the plaintiff’s car, causing the injuries alleged. But no further description appears.

The defendant, while admitting there was evidence warranting the jury in finding that the plaintiff’s car was properly operated and that the defendant’s car was driven at excessive speed by Huskins who was under the influence of intoxicating liquor, contends, that evidence ‍‌​‌‌​‌​​‌​​‌​​‌​‌​​‌‌‌‌​‌‌​‌​​​​​​​​‌‌​​​​​‌‌​​​​​​‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌‌​​​‌​​​‌​​‌‌​‌​‌‌‌​​‍tending to show that Huskins was the defendant’s servant was improperly admitted. After the accident the defendant and Huskins went to the Norwood police station where the chief of police in presence of the defendant asked Huskins for whom he worked, and Huskins replied, that on that Sunday he was working for the defendant. During the colloquy the defendant not only remained silent, but, when asked “ why he did not drive his own car,” answered, “ that he had to have Huskins because his car went too fast.” The defendant was not under arrest for violating G. L. c. 90, §§ 12, 17, relating to obligations of owners of automobiles in the employ*344ment of chauffeurs, or in the hmitations of speed. And, ‍‌​‌‌​‌​​‌​​‌​​‌​‌​​‌‌‌‌​‌‌​‌​​​​​​​​‌‌​​​​​‌‌​​​​​​‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌‌​​​‌​​​‌​​‌‌​‌​‌‌‌​​‍even if contradicted by the defendant, this evidence was plainly admissible for reasons stated in Warner v. Fuller, 245 Mass. 520, where the authorities are collected. See also Commonwealth v. Spiropoulos, 208 Mass. 71, 74; Commonwealth v. Anderson, 245 Mass. 177. The sixth request, “ There can be no inference drawn by the jury against this defendant because of the testimony that the defendant said nothing after Huskins stated in the presence of Vogel that he was employed by the latter,” was denied rightly.

It is further contended, that the jury were erroneously instructed on the issue of liability, because there was no recognition of the doctrine of proximate cause. But no exceptions were taken to the instructions, nor was the attention of the judge called to the omission. The question is not open for the ‍‌​‌‌​‌​​‌​​‌​​‌​‌​​‌‌‌‌​‌‌​‌​​​​​​​​‌‌​​​​​‌‌​​​​​​‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌‌​​​‌​​​‌​​‌‌​‌​‌‌‌​​‍first time in this court. Brigham v. Wentworth, 11 Cush. 123, 126.

The plaintiff Mrs. Kenyon, although a married woman living with her husband, could bind herself personally for the payment of hospital expenses, and for medical attendance made necessary for the treatment of her physical sufferings caused by the defendant’s negligence, and could recover the amount as damages. Braun v. Bell, 247 Mass. 437. G. L. c. 209, § 2. But there was no evidence that the bill for medical services of Dr. Brennan amounting to $383 was contracted by her individually, and at common law, if any liability exists, her husband is solely responsible. The tenth request that she could not recover the amount should have been given. Mayhew v. Thayer, 8 Gray, 172. Jordan Marsh Co. v. Hedtler, 238 Mass. 43. The error however only affects ‍‌​‌‌​‌​​‌​​‌​​‌​‌​​‌‌‌‌​‌‌​‌​​​​​​​​‌‌​​​​​‌‌​​​​​​‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌‌​​​‌​​​‌​​‌‌​‌​‌‌‌​​‍the measure of compensation. If the plaintiff Kenyon within thirty days after rescript remits the sum of $383, the entry will be exceptions overruled. If no remittitur is filed, the entry will be, exceptions sustained, the new trial to be limited to damages. The error however does not affect the plaintiff Dimick, and in his case the exceptions are overruled.

So ordered.