C.w. Hunt Co. v. Boston Elevated Ry. Co.

• Decision Date: 31 March 1914
• Citation: 104 N.E. 728,217 Mass. 319
• Parties: C. W. HUNT CO. v. BOSTON ELEVATED RY. CO.; BOSTON ELEVATED RY. CO. v. C. W. HUNT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 319

104 N.E. 728

C. W. HUNT CO. v. BOSTON ELEVATED RY. CO.; BOSTON ELEVATED RY. CO. v. C. W. HUNT CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1914

COUNSEL

Edward F. McClennen and Brandeis, Dunbar & Nutter, all of Boston for C. W. Hunt Co.

Arthur P. Stone, of Boston, for Boston Elevated Ry. Co.

OPINION

SHELDON J.

It was settled by the former decision in this case (199 Mass. 220 85 N.E. 446) that in the hearing before the auditor there had been a mistrial on the question of damages. The auditor's findings of fact by the agreement of the parties were to be final. Accordingly it was ordered that the case should be recommitted to him for three purposes: (1) To correct an error in the allowance of interest on the sums found due to the Hunt Company for extras. This has been done, and as to this no question is made by either party.

In the second and third places, there was to be a further hearing (2) on the damages suffered by the railway company from the cracks in the frames of the engines, and (3) on the damages suffered by the railway company from the Hunt Company's 'inexcusable delay' for seven months. The first question now raised is whether upon the recommittal to him the auditor acted rightly in refusing to hear any new evidence and in considering, for the correction of his errors in law, only the evidence which he originally had heard and the findings which he had made thereon.

The decision reached when the case formerly was before us was stated in the rescript; the opinion reported in 199 Mass. 220, 85 N.E. 446, was a statement of the grounds and the reasoning upon which that decision had been reached. The decision was that there must be a further hearing on certain claims for damages made by the railway company. For explanation of the significance of the decision and of the effect which it was to have, resort may be had to the opinion. Looking at the whole of that opinion, it seems plain to us that it went upon the ground not only that the auditor had made certain rulings upon these questions of damages which were erroneous, but that as to one part of these questions one or both of the parties, in the hearing before the auditor, had proceeded upon a misapprehension of their rights. As to the damages to be allowed for the cracks in the frames of the engines, the second report of the auditor confirms the view that this was the case. To correct the errors, justice required a 'further hearing.' These words, unless expressly limited, ordinarily import a new trial of those matters as to which the new or further hearing is to be had. That this was their meaning here was manifest, both from the fact that in that opinion the further hearing ordered was spoken of as a 'new trial,' and because it was expressly said: 'At the new trial there may be more evidence bearing directly on the value of the use of the towers, and on all these matters.' 199 Mass. at page 238, 85 N.E. at page 451. The word 'mistrial' used in that opinion on page 233 of 199 Mass., page 449 of 85 N. E., leads to the same conclusion. That word, as was pointed out by the present Chief Justice in his memorandum of July 15, 1910, recommitting the case to the auditor for a third report, is not commonly used to indicate a mere erroneous ruling of law, but to specify such fundamental errors in a trial as to vitiate the result. This error however was in part cured when the case was heard anew by the auditor, and it was agreed that damages from the cracks in the frames of the engines, if further evidence should be received on this subject, properly would be assessed at seven hundred dollars; and they were so assessed.

For the reasons above stated and those set forth in the former opinion already referred to, we consider that this was correct, and do not deem it necessary to discuss the matter further.

We are of opinion also, although this conclusion has been reached with more hesitation and without passing upon the language of the second report, that it does now appear that as to that part of the seven months' inexcusable delay when abnormal conditions prevailed, a fair trial has been had and conclusions of fact have been reached which do not involve any error of law and which are not open to revision by us. This applies now,...