Boomer v. Massachusetts Bonding & Ins. Co.

On Rehearing.

We gladly eliminate the reference made to the letter of the defendant dated June 2, 1939, found in our original opinion. This is done without passing on its admissibility. We think the reference must have occurred • by reason of its admission and reading to the jury without objection, but later stricken.

We have concluded the fee allowed should be reduced from $225 to $150, and our former judgment reformed to that extent. The defendant for the first time in its motion for rehearing raised any question about the trial court’s finding that a reasonable fee is $225. We thought we made clear in our original opinion that amount had been adopted because no question had been raised as to the amount and reasonableness of the fee. The defendant knew the plaintiff had caused the trial court to find on the amount and reasonableness of the fee for the purpose of this appeal; that that was the principal issue briefed, or rather presented for determination, oh appeal. No exception or objection was urged there. The defendant prepared and filed its brief in response to that filed previously by the plaintiff, and neglected to make any reference to the amount and reasonableness of the fee. That question we think could have . been more appropriately raised in the trial court, or in the brief, rather than here in this motion for rehearing. Had it been done we would not have been led to believe the amount and reasonableness of it was acquiesced in by the defendant, nor would we have been made the victim of counsel’s intemperate language. We do not want counsel to gain the erroneous impression that his intemperate language has influenced us to alter the amount of the fee. We have done that on our own considerations of what we think a reasonable fee ought to be under the circumstances in this case, and one we would have originally fixed but for the silence of the defendant which caused us to believe it had consented to the amount and reasonableness of it as found by the trial court.

The defendant, we think, misconstrues what we said about the plaintiff’s right to make the demand and receive the proceeds of the policy as community survivor. We could not and did not undertake to constitute her the community survivor by our opinion — the law makes her that. We were passing upon the sufficiency of the demand. The fact that she brought the suit as ad-ministratrix has nothing to do with the sufficiency of the demand, nor does it constitute her some other person or individual, any more than had she made the demand as Mrs. Monte H. Boomer, and filed the suit in the name of Henrietta Boomer.

The judgment will bear interest at six per cent from April 1, 1940.

We find no merit in the motion, and it is overruled.

Our original opinion and judgment will be reformed in accordance with the views herein expressed.