Home BEE & BEE REALTY CORPORATION vs. BAY STATE FEDERAL SAVINGS AND LOAN ASSOCIATION & others.

359 Mass. 751

April 30, 1971

This is an appeal by the plaintiff under G. L. (Ter. Ed.) c. 231, Section 96, from an order of the Superior Court sustaining demurrers to each of the five counts of its amended declaration filed by leave of court after the sustaining of the defendants' demurrers to the original declaration. Although the court expressly granted leave to file a third declaration, the plaintiff elected not to do so. This action stems from efforts by the plaintiff to secure a loan from the defendant bank for the construction of a shopping center. By its amended declaration the plaintiff attempts in two counts to allege separate causes of action in contract against the bank and its president for the alleged breach by each of their respective oral agreements that the bank would loan the plaintiff the sum of $947,000. The plaintiff attempts in two other counts to allege separate causes of action in tort for deceit against the bank and its president on the ground that when they made their agreements that the bank would loan the plaintiff $947,000 they knew that the loan would not be made. These two counts contain conclusory allegations of "fraudulent and deceitful" representations made by these two defendants intending the plaintiff to rely on them, and the reliance on them by the plaintiff to its damage. The plaintiff then attempts in a fifth count to allege a cause of action in tort for deceit against the bank, its president and its treasurer on the ground that they "conspired with one another" to make the same alleged "fraudulent and deceitful" representations which are described above. Each count includes some reference to alleged wrongful action by the defendants, or some of them, in procuring from the plaintiff a general release of any liability by them to the plaintiff in connection with earlier negotiations for a similar loan. The defendants allege from nine to twelve grounds of demurrer to each count separately. In sustaining the demurrers the court did not identify or specify the grounds for its action. We need not speculate on the precise ground or grounds for such action, provided the action was correct on any of the multiple grounds alleged in the demurrers. We hold that it was. Each count was demurrable for the basic reason that it did not comply with the requirement of G. L. (Ter. Ed.) c. 231, Section 7, Second, that it "state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action." It is thus unnecessary to consider the additional grounds alleged. Fleming v. Dane, 304 Mass. 46 , 51. Barnett v. Boston Legal Aid Soc. 304 Mass. 679 . The orders sustaining the demurrers are affirmed as to all counts.

So ordered.

Home JOSEPH DILORENZO vs. YELLOW CAB OF SOMERVILLE, INC. & another.

359 Mass. 751

May 3, 1971

The plaintiff sustained personal injuries while riding as a passenger for hire in a taxicab owned by the corporate defendant and driven by its employee, the defendant Michael F. Costello, in the course of his employment. The case is here on the defendants' exceptions to the denial of their motions for directed verdicts in their favor. In answer to the plaintiff's call the taxicab went to his house on Broadway in Somerville to drive

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him to Boston. The taxicab stopped in front of his house, facing toward Somerville, and waited for him. The weather was clear and the road was dry. Broadway was fifty feet wide and had no barrier separating vehicles traveling in opposite directions. It sloped downhill from the plaintiff's house for a distance of about 1,200 feet in the direction of Somerville to some lights at Magoon Square. As the plaintiff came down some steps from his house there were no cars coming from his left, and there was one car (the Gear car) near the lights at Magoon Square to his right. There was no evidence of any obstruction between the taxicab, as it waited for the plaintiff, and Magoon Square. The plaintiff entered the taxicab and told Costello his destination in Boston. The taxicab then made a U-turn to the opposite side of Broadway to head toward Boston. As the taxicab was making the turn the plaintiff saw the Gear car approach and started to call, "Stop," but Costello did not hear him. Before the plaintiff could finish the word, the Gear car and the taxicab collided and the plaintiff was injured. The Gear car was going about fifty miles an hour on its own side of the road and its driver did not see the taxicab before the accident. The corporate defendant owed the plaintiff passenger the duty to exercise reasonable care in all of the circumstances, one of which was that the plaintiff was paying for his ride. Hathaway v. Checker Taxi Co. 321 Mass. 406 , 411-412. The evidence was sufficient to permit the jury to find that the defendant Costello was negligent in making the U-turn in the circumstances existing at that time and place, and in particular in the face of the approaching Gear car which could have been seen for a considerable distance. Zawacki v. Finn, 307 Mass. 86 . Monroe v. Vassalotti, 340 Mass. 764 , 766. The negligence, if any, of Gear did not entitle the defendants to directed verdicts in their favor. Eckstein v. Scoffi, 299 Mass. 573 , 576. The denial of the defendants' motions for directed verdicts was not error.

Exceptions overruled.