Carp v. Kaplan

• Decision Date: 27 February 1925
• Citation: 251 Mass. 225,146 N.E. 779
• Parties: CARP v. KAPLAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 225

146 N.E. 779

CARP

v.KAPLAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1925.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action of contract by George S. Carp against one Kaplan and one Leitman, doing business as the Virginia Bag Company, with trustee process. On defendants' exceptions to refusal of court to rule. Exceptions overruled.

Maurice Jacobs, of Boston, for plaintiff.

Richard M. Walsh and E. Philip Finn, both of Boston, for defendants.

RUGG, C. J.

This action to recover damages for breach of contract was tried before a jury. At the close of the evidence the counsel for the defendant submitted to the judge among other requests for rulings this:

‘Upon all the evidence the plaintiff is not entitled to recover.’

[1] This was in substance a motion for a directed verdict in favor of the defendant, and it was commingled with other requests for instructions to the jury. It is manifest that this was not in accordance with the part of rule 44 of the superior court 1923 rules, which requires that:

‘The question whether the court should order a verdict must be raised by a motion. Such question shall not be raised by a request for instructions to the jury.’

[2] This is a valid rule. It is a proper requirement that a motion for a directed verdict be a separate matter, dissociated from requests for particular instructions to the jury. Its adoption is within the power of the Superior Court under G. L. c. 213, § 3. It was binding upon the defendant.

[3] Individual judges have no power to dispense with rules lawfully adopted for the conduct of the business of the courts. Oliver Ditson Co. v. Testa, 216 Mass. 123, 125, 103 N. E. 381;Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460, 462, 139 N. E. 170. There was no attempt on the part of the presiding judge to waive the rule. He was not required to take notice of the request in the form in which it was presented.

If the question attempted to be raised be considered on its merits, there was no reversible error. The testimony of the plaintiff was somewhat conflicting. It was not in such unequivocal form that he was bound by any particular part of it as matter of law. Sullivan v. Boston Elevated Railway, 224 Mass. 405, 407, 112 N. E. 1025. A question was presented for the decision of the jury. The main point of the case is governed by Phippen v. Stickney, 3 Metc. 384, and Gibbs v. Smith, 115 Mass. 592. See Hopkins v. Ensign, 122 N....