Cammisa v. Ferreira
| Decision Date | 27 October 1931 |
| Citation | 178 N.E. 8,277 Mass. 141 |
| Parties | CAMMISA v. FERREIRA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Bristol County; A. R. Weed, Judge.
Action by James J. V. Cammisa against Sophie Ferreira. Defendant brings exceptions.
Overruled.
G. Locus, of Boston, for plaintiff.
H. A. Lider, of New Bedford, for defendant.
The writ, as amended, described this action as one of tort or contract. There were four counts in the declaration but there was no allegation that all counts were for one and the same cause of action. G. L. c. 231, § 7, cl. 6. Hulett v. Pixley, 97 Mass. 29. The cause of action set forth in all the counts was damage to the goods of the plaintiff by the defendant to whom they were entrusted. Two of the counts appear to be founded on breach of a contract for transportation of the goods from Fall River to Washington, D. C., and two counts on breach of a contract to transport and to store the goods in a suitable warehouse. There are also allegations of negligence in three of the counts. There is in law no objection to the combination of these counts in one declaration. Flye v. Hall, 224 Mass. 528, 529, 113 N. E. 366, and cases cited. For aught that appears the measure of damages was the same as to all the counts. At the close of the evidence the defendant requested the plaintiff to be ordered to elect upon which count he would rely. No exception was saved to the denial of that request. See Clapp v. Campbell, 124 Mass. 50. The defendant filed a motion for a directed verdict in her favor. This was refused. The defendant's exception to the denial of this motion presents the only question of law before us. There was evidence tending to show delivery of the goods of the plaintiff to the defendant and damage to those goods by the defendant. Manifestly a verdict could not have been directed in favor of the defendant. Advantage cannot be taken of posible misjoinder of counts or defects in pleadings this way and at this stage of the proceedings. All arguments of the defendant are directed to matters which might have been made the subject of requests for rulings. In the absence of such requests and of exceptions to the charge it must be assumed that adequate instructions covering all issues were given. Townsend v. Hargraves, 118 Mass. 325, 333,Ganley v. Lamson (Mass.) 174 N. E. 279.
The plaintiff filed in this court a motion to amend the declaration by inserting a sentence to the effect that...
To continue reading
Request your trial
-
New England Found. Co. Inc. v. Elliott A. Watrous, Inc.
...in instances where justice seems to require it. Twombly v. Selectmen of Billerica, 262 Mass. 214, 216, 159 N.E. 630;Cammisa v. Ferreira, 277 Mass. 141, 142, 178 N.E. 8. But where it is apparent from the record as a whole that the case was fully and fairly tried upon the real issues of fact ......
-
New England Foundation Co. v. Elliott A. Watrous, Inc.
...not be granted save in instances where justice seems to require it. Twombly v. Selectmen of Billerica, 262 Mass. 214 , 216. Cammisa v. Ferreira, 277 Mass. 141, 142. where it is apparent from the record as a whole that the case was fully and fairly tried upon the real issues of fact involved......
-
Hacker v. Nitschke
...it was in matter of form only and would not be a sufficient reason for taking the case from the jury at the trial. Cammisa v. Ferriera, 277 Mass. 141, 142, 178 N.E. 8;Lewis v. Russell, 304 Mass. 41, 44, 22 N.E.2d 606. The exceptions are sustained. The verdict returned by the jury is to stan......
-
Gartland v. Freeman
...that adequate instructions covering every material aspect of the case were given. Ganley v. Lamson (Mass.) 174 N. E. 279;Cammisa v. Ferreira (Mass.) 178 N. E. 8. Exceptions ...