Anti v. Boston Elevated Ry. Co.

• Decision Date: 30 November 1923
• Parties: ANTI v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 1

141 N.E. 598

ANTI

v.BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 30, 1923.

Report and Exceptions from Superior Court, Meddlesex County; George A. Flynn, Judge.

Actions in tort by Betty Alden Anti, p. p. a., and by Silvano Anti, respectively, against the Boston Elevated Railway Company, one to recover compensation for personal injuries to a minor, and the other to recover consequential damages sustained by her father. There was an order allowing a motion to set aside verdicts for plaintiffs, and on a subsequent trial there were verdicts for defendant, and plaintiffs bring exceptions, and the court also reports certain questions. Exceptions overruled.William Damiano and Frank L. Simpson, both of Boston, for plaintiffs.

Andrew Marshall, of Boston, for defendant.

RUGG, C. J.

A verdict was returned for the plaintiff in each of these cases on February 23, 1921. The defendant seasonably filed a motion in each case for a new trial, assigning as reasons that the verdict ‘was against the law and against the evidence and the weight of the evidence.’ The judge after hearing indorsed on March 4, 1921, on each:

‘Motion allowed for the reason that the verdict was clearly against the weight of the evidence.’

The plaintiffs seasonably excepted to the order of the court in granting the new trials, and duly filed a bill of exceptions. While that bill of exceptions was pending before allowance, a new trial was had resulting in verdicts for the defendant. The judge who presided at the first trial thereupon reported the question whether those exceptions had been waived by the conduct of the plaintiffs in proceeding to a second trial before prosecuting their exceptions to the orders setting aside the verdicts, disallowing the exceptions, if so waived, and allowing them, if not so waived. Riley v. Brusendorff, 226 Mass. 310, 313, 115 N. E. 311.

[1][2][3] There was no waiver of exceptions to the setting aside of the verdicts seasonably filed but not allowed, by proceeding to another trial. The orders of the judge allowing the motions to set aside the verdicts were interlocutory and not final in their nature. After they had been made, the cases were not ripe for final judgment. Another trial was necessary before the cases could be ripe for final judgment. The proper course was for each plaintiff to file exceptions to the order setting aside the verdict. Those exceptions, in the absence of a report by the trial judge, could not be entered in the full court until the cases were ripe for final judgment Brooks v. Shaw, 197 Mass. 376, 378, 84 N. E. 110;Weil v. Boston Elevated Railway, 216 Mass. 545, 104 N. E. 343;Barnett v. Loud, 243 Mass. 510, 513, 137 N. E. 740;Cosmopolitan Trust Co. v. Cohen, 244 Mass. 128, 130, 138 N. E. 711. The right of each plaintiff under the rules and orders of the court to have his exceptions allowed had not expired by limitation of time when the second trial occurred. But for the intervention of the second trial, it is not contended that the bills of exceptions as to setting aside the verdicts could not rightly have been allowed. Waiver is the voluntary relinquishment of a known right. The plaintiffs by proceeding to the second trial relinquished nothing as to their earlier exceptions. They could not enter such exceptions in this court until after their cases had become ripe for final judgment through a second trial. There was no inconsistency in pressing for a second trial, because they could not press their exceptions to the earlier interlocutory orders of which they complained until after such second trial. Report of that interlocutory question rested in the discretion of the presiding judge. The plaintiffs were not entitled to such report as matter of right. Strong v. Carver Cotton Gin Co., 202 Mass. 209, 212, 88 N. E. 582. The defendant suffered no possible harm by delay in the alllowance of those exceptions until after the second trial. The exceptions touching the setting aside of the verdicts are rightly before us.

[4] The plaintiffs do not and could not properly contend that the orders setting aside the verdicts constituted an abuse of judicial discretion. They recognize and accept the general rule that whether a verdict shall be set aside on motion for any of the causes allowed by law commonly rests in sound judicial discretion and is not subject to review. Davis v. Boston Elevated Railway, 235 Mass. 482, 496, 497, 126 N. E. 841 and cases there cited; Ryan v. Hickey, 240 Mass. 46, 132 N. E. 718;Hallett v. Jordan Marsh Co., 240 Mass. 110, 133 N. E. 191;Bilsky v. Braley (Mass.) 141 N. E. 284.

The contention of the plaintiffs is that the form of the order of the judge in setting aside the verdicts did not conform to G. L. c. 231, §§ 127, 128. It is provided in substance by those sections that a verdict can be set aside only upon a motion in writing, by a party to the cause, alleging reasons with respect to which the judge in granting a new trial must ‘file a statement setting forth fully the grounds upon which the motion is granted, which statement shall be a part of the record of the case.’

At common law and apart from statute the court had power to set aside a verdict upon its own motion for any cause allowed by law. Ellis v. Ginsburg, 163 Mass. 143, 39 N. E. 800. It was enacted by St. 1897, c. 472, that no verdict could be set aside except upon a motion in writing by a party to the cause setting forth the reasons relied on in its support. It was held in Person v. Boston Elevated Railway, 191 Mass. 223, 77 N. E. 769, that this statute was constitutional and that under it the court had no power to set aside a verdict for any reason not alleged in the motion. Thereafter St. 1911, c. 501, was enacted requiring the judge to file the statement already described.

[5][6] The statement filed in the case at bar was a sufficient compliance with the statute. The requirement that the statement shall ‘set forth fully the grounds on which the motion is granted’ does not mean that it must contain an analysis of the evidence and the inferences drawn therefrom which lead the court to his decision. It signifies simply that among the reasons alleged in the motion the court shall specify with particularity the grounds on which his mind rests in reaching his conclusion. The parties thus are advised of the exact foundation for the action taken by the judge. Provision is made thereby that the verdict may not be set aside for any cause not mentioned in the motion and that when the reason relates solely to excessive or inadequate damages, the new trial may be confined to damages; and that in any event the statement shall be a part of the record. See in this particular Cressey v. Cressey, 213 Mass. 191,...