Mathews v. Carr , 271 Mass. 362 ( 1930 )

Carroll, J.

The plaintiff’s intestate, a special police officer of the town of Natick, while on traffic duty at the corner of Palmer Avenue and Pond Street, was struck by the defendant’s automobile. The action is to recover for conscious suffering and death. In the Superior Court there was a verdict for the plaintiff.

The defendant offered a release given by the plaintiff to the town of Natick. It acknowledged the receipt of $2,000 paid to her in accordance with a vote of the town, discharged the town of any claim or demand against it and was in full satisfaction of any payment due to the plaintiff “personally or as administratrix of the estate of the . . . [intestate] under the provisions of General Laws, Chapter 32, section 87.” The release was excluded subject to the defendant’s exception.

G. L. c. 32, § 87, authorizes the payment of $1,000 by a city or town to the executor or administrator of a policeman who is killed or dies within sixty days from injuries received while in the performance of his duties; such payment is to be made by the city or town treasurer. By St. 1922, c. 434, the action of the town in voting to pay the plaintiff $2,000 was made valid.

The defendant’s argument in favor of the admissibility of the release is based on the assumption that the defendant in this action and the town of Natick were joint tortfeasors. We cannot agree with this contention. The plaintiff’s intestate was in the discharge of his duty as a special policeman upon the public highway when he was injured by the alleged negligence of the defendant in so operating his automobile as to strike the intestate. The plaintiff had no cause of action against the town for or on account of the alleged tort. There was in fact no claim of negligence on the part of the town, and.no such claim was made by the plaintiff. The fact that the plaintiff was paid money under the statute did not make the principle applicable to joint tortfeasors pertinent here. This question was fully considered in Pickwick v. McCauliff, 193 Mass. 70, 75. It was there decided that the payment made the plaintiff was in the nature of a gratuity and not as something paid in satisfaction of an injury for which the Commonwealth was or might be liable according to established rules of law. See Gray v. Boston Elevated Railway, 215 Mass. 143, 146, where payment made under a policy of accident insurance was excluded in an action of tort against the defendant. Ridgeway v. Sayre Electric Co. 258 Penn. St. 400, 406. It is not argued that the workmen’s compensation act, G. L. c. 152, has any bearing. G. L. c. 152, § 69, relating to cities and towns, applies only to “laborers, workmen and mechanics,” and the payment here in question was not made under the workmen’s compensation act; it was made under G. L. c. 32, § 87, St. 1922, c. 434. Cormier v. Worcester Consolidated Street Railway, 234 Mass. 193, and the cases relied on by the defendant are not in conflict; all of them are to be distinguished on the facts. The release of the town of Natick was not admissible.

The question of the contributory negligence of the plaintiff’s intestate was a question of fact. He was properly upon the way. The darkness or light, the amount of travel, the position in which the intestate was, and all the facts surrounding the situation, made this question one for the jury. Dube v. Keogh Storage Co. 236 Mass. 488, 492. Reynolds v. Murphy, 241 Mass. 225, 228.

There was conflicting evidence as to the defendant’s negligence. The rate of speed at which he was moving was in dispute; the place where the accident occurred with all the surrounding circumstances made the question of the negligence of the defendant one of fact. It was properly left to the jury to decide. G. L. c. 90, § 17. Puccia v. Sevigne, 258 Mass. 234, and cases cited. Nothing was decided in Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239, which prevented the jury from finding that the defendant was negligent.

Exceptions overruled.