Milham v. Paul Mitrano, Inc.
Milham v. Paul Mitrano, Inc.
Opinion of the Court
In this action of tort the plaintiff Milham recovered damages for personal injuries, and the plaintiff Dexter C. Lewis, now deceased,
There was testimony that after the accident the Lewis car was towed away by a company providing wrecker service to its place of business, where it was kept intact until February 28, 1966, when it was taken to an automobile salvage yard. On March 3, 1966, the plaintiffs’ expert witness picked up from the salvage yard, on loan, a positraction differential from an automobile of the same model and year as the Lewis car. On March 21, 1966, the
The defendant further argues that there was insufficient evidence that it was negligent. The expert testimony presented by the plaintiffs, though disputed, was a sufficient basis for the jury to find negligent repair of the positraction differential, and the evidence that this contributed to the accident was similar, and at least as extensive, as the evidence in Ford v. Flaherty, 1 Mass. App. Ct. 16, 18-20 (1972), S. C. 364 Mass. 382, 385 (1973), in which jury findings fixing the responsibility for negligent repair were upheld. See Kennedy v. U-Haul Co. Inc. 360 Mass. 71, 74 (1971).
The defendant’s argument that the plaintiff Milham, who was a passenger in the car while the owner’s son was driving, was not a person who might reasonably be expected to be affected by the defectively repaired positraction differential is without merit. There is ample evidence that he was not a trespasser (Mounsey v. Ellard, 363 Mass. 693, 707-708 [1973]) and that he was at least as much a “foreseeable plaintiff” (Prosser, Torts, § 100, p. 662 [4th ed. 1971]) as a pedestrian (Kennedy v. U-Haul Co. Inc. 360
Other jurisdictions have taken the same view. General Motors Corp. v. Jenkins, 114 Ga. App. 873, 874, 878-879 (1966) (as in this case, a guest passenger in an automobile driven by the son of the owner could recover against the party who negligently repaired the vehicle). See also Royal Motors Inc. v. Murray, 275 F. 2d 3 (D. C. Cir. 1960); Kalinowski v. Truck Equip. Co. Inc. 237 App. Div. (N. Y.) 472 (1933); Oliver v. Bereano, 267 App. Div. (N. Y.) 747 (1944), aff’d. without opinion 293 N. Y. 931 (1944); Zierer v. Daniels, 40 N. J. Super. 130 (1956); Morgan v. Mixon Motor Co. 10 111. App. 2d 323, 329 (1956).
Exceptions overruled.
We note that the docket in the Superior Court contains a suggestion of death of the plaintiff, Dexter C. Lewis, and a motion by the executrix to appear and prosecute. We assume that upon rescript to the Superior Court such steps as may be necessary will be taken to make the substitution.
The expert also testified, over the objection and exception of the defendant, that the positraction differential he received was the one indicated on the bill. The exception is not pressed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.