Shapiro v. Lyon

Pierce, J. This is an action of tort brought by an administratrix, under G. L. c. 229, §§ 1, 5, to recover, for the benefit of the widow and next of kin of her intestate, damages which are alleged to have been caused by the negligence of Meyer A. Lyon while engaged in the business of all the defendants. The answer is a general denial and the affirmative defence of contributory negligence. At the trial to a jury there was a verdict for the plaintiff. The pertinent facts, taken largely from the testimony of the defendant Meyer A. Lyon, would have warranted the jury finding that on July 29, 1921, Meyer A. Lyon, a carpenter in the firm of Lyon Brothers with a place of business in Worcester, Massachusetts, was operating a Ford coupe in Norwich, Connecticut, soliciting orders for the retail trade of his firm; that he left Norwich for Worcester at about 5 p.m., driving the automobile and taking as his guests one Silverman and the intestate, Shapiro; that Norwich is about sixty miles from Worcester; that when they left, the weather was pleasant, but at Webster it became dark and was raining a mist; that between Webster and Worcester it rained hard and when they arrived on Southbridge Street near the place of the accident, between 8:30 and 8:45 p.m. daylight saving time, it was raining very hard and the clouds had become “suddenly dark” and black; that the car was driven along Southbridge Street at the rate of twenty-five to thirty-five miles an hour “inside a thickly settled or business district”; that the Ford coupe came in collision with the rear of one of two five ton Mack trucks which were standing, one in front of the other on the right hand side of the street, without rear red lights; that the Ford car was [115] damaged almost beyond repair and the intestate instantly killed. Lyon testified, in substance, that the front registration plate of the Ford car had been lost on July 28,1921, and that he had, or had caused to be put in its place, a “substitute paper plate”; and that there had been no application to the registrar of motor vehicles for a new number plate, or for a permit to place a temporary number plate upon his vehicle, as is provided by G. L. c. 90, § 6, shall be done in case a plate is lost. He further testified, in substance, that the registration number of the Ford coupe car was 37708; that when demanded he showed the police the registration certificate, No. 37710, of another of the firm’s motor vehicles; that the registration certificate of the car which was operated on the night of the accident was lost or mislaid and that he was unable to find or produce it at the trial. There was evidence which warranted a finding that the intestate, near Worcester on the State road, asked Lyon to stop going so fast, because it was raining and raining hard at that time and place. Upon the foregoing facts the judge could not have ruled rightly, as requested, that the plaintiff was not entitled to recover. The evidence warranted a finding that the automobile was driven at an excessive rate of speed, considering the time, the place and the weather. Although the intestate was a guest, his administratrix, in an action for death under G. L. c. 229, was bound to prove only ordinary negligence of the defendants, Sughrue v. Booth, 231 Mass. 538, and not gross negligence of the defendants as would have been required had the action been by the intestate, or by the administratrix to recover for the conscious suffering of the intestate. Burke v. Cook, 246 Mass. 518. Shriear v. Feigelson, 248 Mass. 432. The evidence in the case was insufficient to require a finding of contributory negligence as a matter of law. Burns v. Oliver Whyte Co. Inc. 231 Mass. 519. Powers v. Loring, 231 Mass. 458. Apart from St. 1914, c. 553, § 1, now G. L. c. 231, § 85, there was evidence that the intestate was in the exercise of due care. The record discloses that the truck with which the Ford coupe collided was owned by, and at the time of the accident [116] was under the immediate supervision of, one Richard J. Cronin; that on September 17, 1921, the date of the writ in this action, the administratrix brought an action against the said Cronin; that the form of the writ, the ad damnum and the declaration in each action is identical save in the name of the defendant and the return day. The record in the Cronin action shows his appearance, answer and the filing, on November 6,1924, of the agreement which reads as follows: “Emma Shapiro, Admrx. vs. Richard J. Cronin 1 Neither Party “ In the above entitled case it is hereby agreed that the following entry may be made. ‘Neither party, no further suit to be brought for the same cause of action. ’ ” The brief of the defendants states that the questions raised by the bill of exceptions are (1) “Whether the evidence of a release given by the plaintiff to a concurrent tortfeasor after a suit had been brought by her against him seeking to recover for the death of her intestate was admissible in the present action”; and (2) “Whether or not the defendants by attaching a paste board number plate to the front of their automobile after losing the same, without first securing the permission from the Registrar of Motor Vehicles, made it an unregistered motor vehicle.” A release of a joint tortfeasor or of an independent tortfeasor, whose negligent acts operate concurrently to the injury of another, is an affirmative defence which must be set up in the answer of such other defendants if they would rely Upon it as a defence to an action against them. Herschman v. Justices of the Municipal Court of Boston, 220 Mass. 137, 141. The failure to plead the alleged release in itself justified the refusal of the judge to admit evidence to establish a release. Apart from the absence of pleading, there was no harmful error in the refusal to receive testimony which would establish the fact that the administratrix had brought another action against the owner of the truck, whose acts were alleged to have been negligent and, concurrently operating with the [117] negligent acts of the defendants, to have resulted in the death of the intestate; and which would establish further that the administratrix had thereafter for reasons which the record does not disclose agreed to an entry of “Neither party, no further suit to be brought for the same cause of action.” An action followed by the filing of such an agreement without more would not warrant a finding that the agreement was an adjudication of the cause, or anything more than evidence of the purpose of the parties thereto to abandon that suit, as distinguished from an intent that the agreement should operate as a full release. Marsh v. Hammond, 11 Allen, 483. Matheson v. O’Kane, 211 Mass. 91, 95. White v. Beverly Building Association, 221 Mass. 15, 17. See Brown v. Cambridge, 3 Allen, 474; Johnson v. Von Scholley, 218 Mass. 454. Such an agreement, as the defendant admitted at the trial, has no greater effect than a covenant not to prosecute further a pending action. It does not affect the liability or culpability of the defendant; Nugent v. Boston Consolidated Gas Co. 238 Mass. 221, 237; Johnson v. Von Scholley, supra; and it does not inure to the benefit of any other person or persons than the parties to it, save in so far as they are benefited by any consideration received by the injured party, the amount or value of which operates as a payment pro tanto to them. O’Neil v. National Oil Co. 231 Mass. 20, 29. Dwy v. Connecticut Co. 89 Conn. 74; L. R. A. 1915 E, 800. Chicago v. Babcock, 143 Ill. 358. There being no evidence or offer of proof that the administratrix received anything of value as a consideration for the execution of the agreement, the defendants were not harmed by the exclusion of proof of the institution of the action against Cronin and of its disposition by the entry of the agreement of “Neither party.” The operation of the motor vehicle of the defendant for a day without lawful registration plates and without a permit of the registrar of motor vehicles authorizing the use of temporary number plates, in violation of the provision of G. L. c. 90, § 6, was unlawful. No valid distinction in lawful use of the highway is perceived between use without number plates and use of unauthorized number plates; the offence [118] is but a difference in degree. It therefore is unnecessary to determine whether the kind of secondary evidence offered in proof of the fact that the Ford coupe was registered was refused rightly. Assuming that the automobile was registered, it is admitted that the registration plates had not been displayed on the front and rear of the motor vehicle for a day before the accident and were not there at the time of the accident. In this regard the requests of the defendants were refused rightly, and the charge was without error. There was no error in the reception of the evidence relating to the photographs taken five days after the accident. The jury under the instructions given could find reasonably upon the evidence that they accurately pictured the condition and appearance of the automobile at the time of the accident. Morrissey v. Connecticut Valley Street Railway, 233 Mass. 554, 557. Randall v. Peerless Motor Car Co. 212 Mass. 352, 385. All questions argued by the defendant have been considered and no reversible error appears in the conduct of the trial. Exceptions overruled.