Jayne v. Morck

WARD, J.

This is an appeal from a judgment in favor of defendants following a jury trial which resulted in a verdict in their favor. The action was brought by the heirs of a decedent for the wrongful death of their husband and father respectively as the result of an automobile collision. The Occidental Indemnity Company, a corporation, having paid an award under the Workmen’s Compensation Act, intervened, joins the wife and children on this appeal, and is represented herein by the' attorney representing them. As grounds of appeal, appellants urge two errors in the exclusion of evidence, and claim prejudicial error by reason of the conduct of opposing counsel at the trial.

It is contended by appellants that the court erred in excluding evidence of the fact that defendant Morck, who sustained severe personal injuries and who testified to his own complete freedom from negligence, failed to file a cross-complaint or a counterclaim in suits brought against him by several people for injuries arisng out of the accident. In support of this contention they cite

Miller

v.

Stevens,

79 Mass. (13 Gray) 282, and

Fletcher

v.

Fletcher,

284 Mass. 377 [187 N. E. 772], In the first ease plaintiff employed defendant to sell certain goods and furnished him horses and a wagon to use in the employment, at the termination of which plaintiff paid defendant his wages but failed to make any claim against him for damages on account of injury to the horses which he later asserted he sustained. In a subsequent action for such injuries, proof of failure to make the claim on settlement and conclusion of their business was held admissible. Failure to make a claim when the rights of parties are being adjusted may in a subsequent proceeding be considered to indicate that a legitimate claim did not exist and that the subsequent legal action may be unfounded. In the Fletcher case plaintiff brought an action against the administratrix of his brother’s estate for money loaned the deceased during his lifetime. It was held that proof of plaintiff’s failure in connection with his bankruptcy to list the brother’s indebtedness as an asset was admissible against him. The theory underlying the two decisions is that in a legal action upon a claim, failure to assert it at some pre

[745]