Bruns v. Jordan Marsh Co.
| Citation | 305 Mass. 437,26 N.E.2d 368 |
| Parties | ROSE C. BRUNS v. JORDAN MARSH COMPANY. |
| Decision Date | 25 March 1940 |
| Court | United States State Supreme Judicial Court of Massachusetts |
January 4, 1940.
Present: FIELD, C.
J., QUA, DOLAN COX, & RONAN, JJ.
Practice, Civil New trial. Exceptions: what questions open. Sale, Warranty. Notice.
No abuse of judicial discretion was shown in granting a motion for a new trial on the ground that it appeared to the judge that the jury improperly had experimented with an exhibit.
After the proper allowance of a motion by the plaintiff for a new trial an exception by the defendant, to the denial of a motion for the ordering of a verdict at the trial thus nullified, had no standing.
Upon evidence that a customer considering the purchase of a pair of shoes on display in a store was assured, on inquiry of a salesman of the defendant, that the shoes were durable and substantial that the customer thereupon purchased them, and that, after the shoes had been worn only a few times, the customer fell and was injured because the heel of one came off, warranted findings that the salesman knew that the shoes were intended for personal wear by the customer, that the customer relied on his skill and judgment, and that there was breach of both an implied warranty of fitness and an express warranty of the durable and substantial character of the shoe.
A notice by a buyer to a seller of a breach of warranty of quality of shoes sold was not seasonable under G.L. (Ter. Ed.) c. 106, Section 38, if the parties lived in the same city, the buyer had available the usual means of communication, and the notice was not given until four and one third months after the breach was discovered and four and two thirds months after the sale.
CONTRACT OR TORT. Writ in the Superior Court dated June 28, 1935. The declaration set out a claim for a breach of warranty in the sale of shoes to the plaintiff.
The first trial of the action was before O'Connell, J., and the second before Dillon, J., where there was a verdict for the plaintiff in the sum of $2,750.
T. B. Shea, for the plaintiff. C. C. Craig, for the defendant.
The plaintiff was injured on October 4, 1934, when she fell downstairs by reason of the heel becoming detached from the left shoe of a pair she had purchased from the defendant on September 22, 1934, and which, she alleges, were not in accordance with the warranty made by the defendant at the time of their purchase. The jury at the first trial returned a verdict for the defendant. The plaintiff's motion for a new trial was granted. The plaintiff had a verdict at the second trial but the judge, under leave reserved, entered a verdict for the defendant. The defendant saved exceptions to the failure of the judge to grant its motion for a directed verdict at the first trial and excepted to the granting of the motion for a new trial. At the second trial, the defendant saved an exception to a portion of the charge, and the plaintiff excepted to the entering of a verdict for the defendant under leave reserved.
There was no error in granting the plaintiff's motion for a new trial. The heel was not fastened to the shoe at the first trial and each was submitted to the jury as a separate exhibit. When the jury returned their verdict, it was noticed that the heel had been attached to the shoe. The judge then interrogated the officer who had charge of the jury and was informed that the shoe and the heel were not attached when they were taken into the jury room but that the heel was fastened to the shoe when the jury brought in their verdict. "There appeared to have been an extra nail driven into the shoe." The plaintiff's motion for new trial set forth, among other reasons, that the jury had experimented with the shoe and had attached the heel to the shoe by inserting one or more nails "for the purpose of experimenting with methods of attachment of the heel to the shoe." The motion was granted upon this ground. Sometime after this motion had been allowed, and prior to the second trial, what had appeared to the judge and counsel to be an extra nail was discovered to be only a nail head.
The presiding judge was familiar with the appearance and condition of the shoe and the heel when they were introduced in evidence and when they were returned by the jury. Whether the heel had been properly and reasonably attached to the shoe was a crucial issue. The plaintiff had no case unless she proved that the heel had not been reasonably fastened to the shoe. Apparently, the judge and counsel at the time the motion was granted believed that a nail had been driven into the heel during the deliberation of the jury. It may be that, if at that time the heel had been separated from the shoe, it might then have been discovered that no new nail had been driven through the heel into the sole of the shoe. We do not know from the record what inspection was made of the shoe before the judge decided to grant the motion. It was for him to decide what had been done to the shoe in the jury room and then determine whether such an occurrence was a mere irregularity affecting no substantial rights of the parties or whether it resulted in depriving the plaintiff of a fair and impartial trial. Findings of fact made at a hearing upon a motion for a new trial are final but rulings of law are open to revision by this court. Shanahan v. Boston & Northern Street Railway, 193 Mass. 412 . Simmons v. Fish, 210 Mass. 563 . Dziegiel v. Westford, 274 Mass. 291 . The judge, however, made no rulings of law. Much must be left to his sound judicial discretion. If he was satisfied that the conduct of the jury had a strong tendency materially to affect their verdict he was authorized to grant a new trial. It cannot be said as matter of law that the judge was wrong if he found that the experimenting on the shoe and heel was likely appreciably to influence the judgment of the jurors. The action of the judge cannot be said to be arbitrary or to constitute an abuse of sound judicial discretion. Commonwealth v. Desmond, 141 Mass. 200 . Harrington v. Worcester, Leicester & Spencer Street Railway, 157 Mass. 579 . Manning v. Boston Elevated Railway, 187 Mass. 496 . Commonwealth v. Capland, 254 Mass. 556 . Commonwealth v. Friedman, 256 Mass. 214 . Claffey v. Fenelon, 263 Mass. 427 . If the judge had found that the plaintiff had not been prejudiced by the conduct of the jury, then an exception to the refusal of her motion could not be sustained. Bradford v. Boston & Maine Railroad, 225 Mass. 129. Collins v. Splane, 230 Mass. 281 . Commonwealth v. Dies, 248 Mass. 482. Our inquiry is not whether the judge was compelled to grant a new trial but whether the allowance of the motion was as matter of law an abuse of sound judicial discretion. Skudris v. Williams, 287 Mass. 568 . Commonwealth v. Polian, 288 Mass. 494 .
The action of the judge must be determined by the facts as they appeared at the time the motion was granted, and not as they are shown to be by subsequent events. The situation is analogous to that commonly prevailing where a party seeks a reversal of a verdict on the ground that the facts upon which it was based have been shown by newly discovered evidence not to have existed at the time the verdict was rendered. We do not know when the head of the nail, which was formerly considered as a new nail driven into the heel, was inserted into the heel. In any event, the defendant is not shown by the record to have sought a reversal of the order granting a new trial. McKinley v. Warren, 218 Mass. 310. Paper Trucking Co. v. Russo, 281 Mass. 209 . Bucholz v. Green Bros. Co. 290 Mass. 350 , 354. Rights must be seasonably asserted if reliance is to be placed upon them. Byfield v. Newton, 247 Mass. 46 . Lonergan v. American Railway Express Co. 250 Mass. 30 . Castaline v. Swardlick, 264 Mass. 481 .
The defendant's exception to the refusal to grant its motion for a directed verdict at the first trial is not open for determination. As there was no error in granting a new trial, all the questions saved at that trial ceased to have any vitality when the trial itself had come to naught. That trial is no longer of any force and effect, and an error alleged to have been committed at such a trial has lost its substance and become moot. Welsh v. Milton Water Co. 200 Mass. 409 . Nagle v. Driver, 256 Mass. 537 . Bresnahan v. Brighton Avenue Baptist Church, 279 Mass. 300 . Zwick v. Goldberg, 304 Mass. 66.
The defendant urges that, if the judge had granted its motion for a directed verdict, the incident that resulted in a new trial would not have occurred. We assume that may be true. Our inquiry, however, is not to determine how an alleged error could have been avoided at the trial but how any portion of a trial can be reviewed when the entire trial itself has become a nullity. The defendant cannot now complain of such an error.
There was evidence at the second trial that the plaintiff went to the defendant's store and took a pair of "Moseley" shoes from among those that were exhibited for sale upon a table. She showed them to the salesman to see if they were the right size. He flexed the shoes, softened the counters...
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