Portland Gas Light Co. v. Ruud, 242 Mass. 272

Portland Gas Light Co. v. Ruud

242 Mass. 272 | Mass. | 1922

Braley, J.

We assume from the recitals in the record that on conflicting evidence the jury could find that the defendant’s negligence in the operation of his car caused the collision between the car and the gas light company’s coal truck while they were passing “on the main highway ... to the town of Dunstable, Maine . . .,” damaging the truck; and causing personal injury to the plaintiff Fournier the driver, and the plaintiff Riley the helper, employees of the company. The plaintiffs’ counsel before suit wrote the defendant that he had a claim against him, and requested him to call at his office. In response the defendant called. It is stated as a fact, that “As a result of said call, the defendant . . . had knowledge that his car was the car which the plaintiffs believed had been in collision with the truck . . . and that the plaintiffs intended to bring suits ... for damages . . . *275because of said collision.” In cross-examination of the defendant the plaintiff was permitted to show that immediately after this interview he conveyed his homestead to his daughter, for which on his own evidence the jury could say no valuable consideration for the conveyance was ever agreed upon by the parties. The defendant who continued in occupation of the premises, testified that while no money was paid the understanding in part was that he should pay rent which was to be deducted from the purchase price, and that the conveyance also was in the nature of a distribution of his estate in accordance with the wish of his deceased wife who at her death was “a part owner,” although by operation of law he had become the sole owner when the transfer was made. But his credibility and the effect of his evidence was for the jury. The defendant who did not call the attention of the judge at the. trial to the ground now relied on for exclusion, contends that even if a conveyance was made under the conditions described, and as claimed by the plaintiffs, the evidence was incompetent as tending to show an admission by him of liability because it does not appear that the homestead was all the property he owned. The jury however could infer and find in the absence of any positive evidence to the contrary, that the house constituted all of his property which could be come at to be attached, and that it was voluntarily conveyed, to avoid an attachment to secure the payment of damages if the plaintiffs prevailed in the impending actions of which he had been fully informed. Banfield v. Whippley 10 Allen, 27. Wigmore on Ev. § 282. The Pub. Laws of Maine, 1919, c. 238, were introduced in evidence. By § 26, “When any injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claiméd and awarded under this act, any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person, provided, if the employer shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this act, then. *276any such excess shall be paid to the injured employee, less the employer’s expenses and costs of action.” And by § 1, cl. 1, " ‘Employer’ shall include corporations . . . and if the employer is insured, it includes the insurer unless the contrary intent is apparent from the context or it is inconsistent with the purposes of this act.” The gas light company was insured, and compensation had been paid to the plaintiffs Riley and Fournier under the act. Its present suit is not in contract to recover the amount, but in tort for damages, and the defendant’s fifth request that the gas light company cannot recover any sums of money paid by it, or by the insurance company to Fournier and Riley, asked for an instruction on an immaterial issue. It was denied rightly. Chaves v. Weeks, ante, 156. While the plaintiffs Riley and Fournier cannot maintain the actions for their sole benefit, the employer and the insurer who have paid compensation under the statute, are subrogated to their respective rights which can be enforced without stating in the writ or declaration that the action is brought in its behalf. Hall v. Henry Thayer & Co. 225 Mass. 151, 152, 153. Hoadley v. Northern Transportation Co. 115 Mass. 304, 306. Donahue v. Thorndike & Hix, Inc. 119 Maine, 20, 23. The defendant’s requests in these cases could not have been given. It was discretionary with the trial court whether the “insurance papers” should be sent to, or withheld from the jury, and for reasons before stated the jury were properly instructed “to disregard the matter of insurance.” Burghardt v. Van Deusen, 4 Allen, 374. The exceptions in each case must be overruled, and it is

So ordered.