Clemons Elec. Mfg. Co. v. Walton

• Decision Date: 14 December 1898
• Citation: 173 Mass. 286,52 N.E. 132
• Parties: CLEMONS ELECTRICAL MFG. CO. v. WALTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 286

52 N.E. 132

CLEMONS ELECTRICAL MFG. CO. v. WALTON.

Supreme Judicial Court of Massachusetts, Bristol.

December 14, 1898

COUNSEL

S.H. Tyng and C.C. Mellen, for plaintiff.

Burdett & Snow, for defendant.

OPINION

FIELD C.J.

After the decision reported in 168 Mass. 304, 47 N.E. 102, the petition to prove the exceptions was referred to a commissioner, with the usual powers, and his report is before us. The argument has been confined to the questions whether the bill of exceptions as originally filed by the defendant is in proper form and whether the truth of the exceptions therein alleged has been established. We see nothing in the form of the bill of exceptions as filed which can be held to justify the disallowance of the exceptions. One of the defendant's requests for rulings was "that upon all the evidence the plaintiff cannot recover." This rendered it necessary that the substance of all the evidence relating to the plaintiff's cause of action should be set out in the exceptions. The bill of exceptions as filed contains little that can be regarded as immaterial, and some complaint has been made by the counsel of the plaintiff that on some points sufficient evidence has not been recited. It may be that some of the evidence which has been set out in the exceptions by question and answer could have been reduced to the narrative form, but plainly there has been an attempt to abridge the evidence, and we cannot say that this has not been done, so far as was reasonably safe for the excepting party. The present case is easily distinguished from Ryder v. Jenkins, 163 Mass. 536, 40 N.E. 848. In Sawyer v. Iron Works, 116 Mass. 424, 433, it is said in the opinion: "If the bill as tendered to the presiding judge contains several distinct and independent exceptions clearly and separately established, the truth of one or more of them may be established, although the others are not proved as alleged or are waived by the excepting party." See Morse v Woodworth, 155 Mass. 233, 27 N.E. 1010, and 29 N.E. 525. It appears from the report of the commissioner that ten of the exceptions alleged, which are numbered in the report as follows, viz. 1, 2, 3, 4, 5, 6, 8, 9, 12, 14, "were duly taken, and that the ruling excepted to and the evidence to which they excepted are stated with accuracy." The evidence reported at the request of the plaintiff concerning the second exception seems to us immaterial, and does not tend to modify the exception as taken. These are distinct and independent exceptions, and the truth of them has, we...