Cotter v. Boston, R.B.&L.R. Co.

• Decision Date: 07 January 1921
• Parties: COTTER v. BOSTON, R. B. & L. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 68

129 N.E. 426

COTTER

v.BOSTON, R. B. & L. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1921.

Exceptions from Superior Court, Suffolk County; Charles W. Bell, Judge.

Action by Ellen F. Cotter, administratrix of Albert F. Cotter, against the Boston, Revere Beach & Lynn Railroad Company, resulting in directed verdict for defendant, wherein plaintiff petitions to establish her exceptions, which is done, and the exception as to a single count of the declaration sustained.

Francis Juggins and H. George Alpert, both of Boston, for petitioner.

Thomas Kelly, of Boston, for defendant.

DE COURCY, J.

The plaintiff sued to recover damages for the conscious suffering and death of her intestate, Albert H. Cotter. At the trial in the superior court the judge submitted to the jury certain questions in writing, and on the answers thereto he ordered the jury to return a verdict for the defendant. On the petition to establish exceptions the only issue is whether the attorney for the plaintiff duly saved and alleged an exception to this order. The matter was referred to a commissioner and among the facts reported by him are the following:

At the close of all the evidence the defendant moved that the court direct a verdict in its favor. This matter was discussed at some length between the court and counsel in the lobby. Upon the denial of this motion there was some discussion about the submission of questions to the jury. The questions were prepared by the court, and apparently not seen by counsel until after their arguments. When the jury returned their answers to the questions submitted to them, the court called counsel to the bench, directed their attention to the answers, and some discussion followed with reference to ordering a verdict, especially because of the answer given to the fifth question. Counsel for the plaintiff testified that the judge then stated he ‘would save the plaintiff's rights.’ This was denied by the defendant's attorney. No stenographer was present. Plaintiff's attorney did not seek to have any exception recorded at that time, but within eight or ten minutes later, stated to the judge that he desired to make sure that his exception was noted. Thereupon, at the judge's suggestion, he dictated to the stenographer an exception to the order directing a verdict for the defendant.

The trial took place on February 27, 1919. The plaintiff's bill of exceptions was filed March 21, 1919. Consideration of its allowance was postponed from time to time until January 25, 1920; when the judge disallowed the exceptions. In his certificate, after referring to his practice ‘to make sure that all exceptions taken are entered at once,’ he states:

‘On the whole I am not satisfied that at the time of the conference I understood that counsel was taking an exception.’

The commissioner reports:

‘The certificate of the presiding justice in disallowing the proposed bill of exceptions is of little assistance upon this issue. It is purely negative in character and merely indicates that the judge, as was natural, then had no recollection of the matter. The absence of the stenographer during the conference at the bench might account for any failure on his part to have an exception noted at that particular time; but it is not quite conceivable that the judge would, without protest, permit the subsequent interruption of the trial of another case for the recording of an exception eight or ten minutes after the jury had been discharged, unless he understood that an exception had been in fact alleged or saved substantially as counsel for the petitioner asserts. If this subsequent dictation of an exception had been the first suggestion of its allegation, it seems probable that the Court would have in some manner had that fact appear in the record. Furthermore it is not quite conceivable that, in a case of this character, experienced counsel for the plaintiff would permit a direction of a verdict against his clients under circumstances like those appearing here without expressly claiming an exception, unless he felt that his rights in that regard were being saved or protected by the court. * * * Though the matter is not entirely free from doubt, upon a careful consideration of all the evidence I am satisfied that an exception was saved for the petitioner [by the judge] during the conversation at the bench prior to the direction of a verdict for the defendant, and substantially in the manner described by the counsel for the petitioner, and I so find.’

Accordingly he finds that the truth of the proposed bill of exceptions has been established.

The misunderstanding as to whether an exception was saved might well have been avoided if counsel for the plaintiff had brought ...