15 Mass. App. Ct. 958

March 10, 1983

The defendant appeals from convictions of driving while under the influence of intoxicating liquor, and driving without a license, entered upon the verdicts of a jury of six. 1. The judge did not abuse his discretion in denying the defendant's extraordinary motion for a continuance of the trial for a period of one year on the ground of prejudice arising from publicity and public concern about drunken driving. None of the material offered in support of the motion was shown to be directed to this particular defendant. See Commonwealth v. Golston, 373 Mass. 249 , 258-259 (1977), cert. denied, 434 U.S. 1039 (1978). In any event, the judge did inquire into the ability of the jurors to discharge their duties impartially. See G. L. c. 234, Section 28. Cf. Commonwealth v. Vitello, 367 Mass. 224 , 236 (1975). 2. The judge could decline in his discretion to ask the jurors the specific question whether they had sat on drunken driving cases; he inquired more generally whether they could act impartially. See Commonwealth v. Cameron, 385 Mass. 660 , 667 (1982). 3. The defendant attacked the way in which a qualified police officer administered the breathalyzer test to him, but there was no showing of such fault as might warrant allowance of a motion to suppress the results of the test or to exclude that evidence at the trial; the weight of the evidence was for the jury. See Commonwealth v. Shea, 356 Mass. 358 , 361 (1969). 4. Motions for a required finding of not guilty, and a motion for a new trial, were properly denied.

Judgments affirmed.


15 Mass. App. Ct. 958

March 11, 1983

Treating the defendant's motion to dismiss, incorporated in its answer, as a motion for summary judgment because matters outside the pleading were considered, see Mass.R.Civ.P. 12(b), 365 Mass. 755 (1974), a judge of the Superior Court held for the defendant and dismissed the action. We affirm.

Page 959

Shuster Enterprises, Inc. (Shuster), bought a new Porsche automobile from a dealer-franchisee of the present defendant distributor, Volkswagen of America, Inc., and, finding that the car consumed excessive oil, took it for repairs to another dealer-franchisee, the present plaintiff Fall River Motor Sales, Inc. The plaintiff undertook the repairs and replaced the "rings" with others obtained from the defendant. Shuster sued the plaintiff and defendant in a single action alleging breach of implied warranty of merchantability in one count, and negligence of the plaintiff in making repairs in a second count, and seeking damages against both plaintiff and defendant with respect to each count. The defendant settled the action against itself by payment of a certain sum to Shuster and refused any further defense of the Shuster action. Subsequently Shuster abandoned its action against the plaintiff and judgment entered therein in the plaintiff's favor.

In the present action the plaintiff's main effort is to recover from the defendant, on a theory of indemnification, the legal expenses and costs it incurred in defending the Shuster action. It is fatal to that claim, however, that the defendant was bound to assume the defense only of any claim, such as implied warranty, on which the plaintiff could be held vicariously liable for the defendant's fault; the defendant's duty as indemnitor did not extend further; and, as a joined party in the Shuster action, it was put on defense of such claim and discharged it by settlement with Shuster. (As distinguished from the warranty on the replacement parts, the plaintiff was presumably not at all involved in the warranty on the new car, which was sold to Shuster by another dealer.) A claim on which the defendant was not ultimately chargeable, as for negligence of the plaintiff itself in making repairs, had to be handled by the plaintiff at its own expense and without recourse to the defendant. Decisions like Berke Moore Co. v. Lumbermens Mut. Cas. Co., 345 Mass. 66 (1962), Trustees of New York, N.H. & H.R.R. v. Tileston & Hollingsworth Co., 345 Mass. 727 (1963), and Ratner v. Canadian Universal Ins. Co., 359 Mass. 375 , 379 (1971), are irrelevant; they treat of situations where an indemnitor failed to assume the defense against claims as to which it had final responsibility. We need not attempt an extended interpretation of G. L. c. 93B, Section 5B (Indemnification of Franchisees), on which the plaintiff tries to rely, for it can have no application where a distributor comes in to defend a dealer to the extent of the latter's vicarious liability for the distributor's fault. Other theories of recovery urged by the plaintiff are also without merit.

Judgment affirmed.