Home MILDRED H. PULTZ, trustee, vs. GENE R. BRENNAN.

1 Mass. App. Ct. 865

January 4, 1974

This is an appeal from a final decree of the Superior Court dismissing a petition seeking to have the defendant adjudged in contempt for failure to comply with a prior decree of that court. A full evidentiary hearing was held, and the evidence is reported. Following that hearing the judge made full and complete findings of fact and concluded that "there has been no clear and undoubted disobedience [of the prior decree] by the . . . [defendant] Brennan." A review of the record leads us to the same conclusion.

Decree affirmed with costs.


1 Mass. App. Ct. 865

January 7, 1974

This petition for a writ of review was allowed in the Superior Court. The respondent's bill of exceptions raises the question whether its requests for rulings, in effect that the petition for a writ of review should be dismissed because filed beyond the statutory period (see G. L. c. 250, Section 22), should have been granted. The petition filed February 13, 1973, seeks review of a judgment in an action of contract which was rendered against the petitioner (defendant therein) on November 1, 1971, for failure to answer interrogatories and of which the petitioner "personally never did receive notice" until December, 1972. Since the petition was filed more than a year after judgment, it could be maintained only if the judgment "was rendered in the absence of the petitioner and without . . . [her] knowledge . . .." The petitioner was not "absent" within the meaning of Section 22 when judgment was rendered since she had been served with process and since an appearance had been entered on her behalf. Matthewson v. Moulton, 135 Mass. 122, 124-125 (1883). Riley v. Hale, 146 Mass. 465, 466 (1888). "Absence of the defendant . . . means simply the antithesis of presence secured by . . . [her] entering an appearance or by the service of process upon . . . [her]." Reubens v. Boston Fed. Sav. & Loan Assn. 342 Mass. 483, 487 (1961). The short answer to the petitioner's contention that the trial judge had discretion to grant the petition is also found in the Reubens case (which held that it was error to deny requests for rulings of law virtually identical with those denied in this case) in which the Supreme Judicial Court said (p. 487), "Of course, he [the trial judge] has no discretion to act counter to the provisions of the statute." The respondent's requests for rulings of law should have been granted.

Exceptions sustained.

Petition dismissed.


1 Mass. App. Ct. 865

January 7, 1974

This action of tort to recover for personal injuries and property damage

Page 866

resulting from the collision of an oil truck operated by the remaining defendant (defendant) [Note 1] with a truck owned and operated by the plaintiff is here on the defendant's exception to the denial of his motion for directed verdicts presented at the conclusion of the plaintiff's case. The evidence most favorable to the plaintiff (which does not include a possible explanation by the defendant of how the accident might have happened) is summarized: Between 3:00 and 3:45 P.M. on the clear, dry day of January 23, 1968, the plaintiff, who had been driving along a divided highway in Medford, stopped his truck for a red light, coming to a halt in the extreme right hand of three lanes. At that time there was no vehicle stopped in either of the lanes lying to the plaintiff's left. The plaintiff had been stopped for about twenty seconds when his truck was struck in the rear by the truck operated by the defendant. The force of the impact was such that (apparently after rebound) the plaintiff's chest hit the steering wheel of his truck, his body hit the steering post, and his knees hit the dashboard; "[h]is knees were all messed up and his groin part was all black and blue from his stomach all the way down to his knees." A spring was broken in the starter mechanism of his truck. On that evidence there were questions of fact for the jury as to the defendant's speed and as to whether he should have seen the plaintiff's truck in sufficient time to avoid the accident by stopping or by turning to the left. Murphy v. New England Transp Co. 273 Mass. 275, 276-277 (1930). Hendler v. Coffey, 278 Mass. 339, 340-341 (1932). Jennings v. Bragdon, 289 Mass. 595, 596-598 (1935). Lech v. Escobar, 318 Mass. 711, 712-713 (1945). Warren v. Howe, 332 Mass. 213, 214-215 (1955). Harrington v. Central Greyhound Lines, Inc. of N.Y. 336 Mass. 436 (1957). Olofson v. Kilgallon, 362 Mass. 803, 805-806 (1973). This was not a case (such as Buda v. Foley, 302 Mass. 411, 413-414 [1939], or Frazier v. Cordialino, 356 Mass. 465 [1969]) in which the defendant could not foresee the intervening act of a third person or one (such as Varisco v. Malovin, 356 Mass. 712, 713-714 [1970]) in which the plaintiff's vehicle was "stopped on an open highway" (Olofson v. Kilgallon, 362 Mass. 803, 806 [1973]).

Exceptions overruled.


[Note 1] The other original defendant (Elizabeth Decandia) and a third-party defendant (Albert Robbins) were eliminated from the case by directed verdicts which are not questioned.