Curley v. Boston Herald-Traveler Corp.

• Decision Date: 24 May 1943
• Citation: 314 Mass. 31,49 N.E.2d 445
• Parties: CURLEY v. BOSTON HERALD-TRAVELER CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 31

49 N.E.2d 445

CURLEY

v.BOSTON HERALD-TRAVELER CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1943.

Report from Superior Court, Suffolk County; W. C. Giles, Judge.

Action by James M. Curley against the Boston Herald-Traveler Corporation. During the trial a mistrial was declared at request of plaintiff. Thereon defendant moved for entry of judgmetn of nonsuit against plaintiff. The motion was denied and the judge's order of denial was reported to the Supreme Judicial Court for determination.

Order denying motion for judgment of nonsuit affirmed and case ordered to stand for trial.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and RONAN, JJ.

W. P. Murray and J. A. Scolponeti, both of Boston, for plaintiff.

J. L. Hall and R. Wait, C. P. Curtis, Jr., and B. Aldrich, all of Boston, for defendant.

QUA, Justice

During the trial of this case the judge, at the request of the plaintiff and over the objection of the defendant, declared a mistrial. Thereupon, the defendant moved that ‘a judgment of nonsuit be entered’ against the plaintiff. The judge denied the motion and reported his order of denial for determination by this court under G.L.(Ter.Ed.) c. 231, § 111.

The defendant contends that nothing whatever had occurred to warrant the declaring of a mistrial; that under these circumstances the plaintiff's request that a mistrial be declared and the judge's granting of that request were in substance and effect a request for leave to become nonsuit and the granting of such leave by the court; and that the defendant is now entitled to have the action taken expressed in an appropriate judgment.

The declaring of a mistrial is ordinarily within the discretion of the trial judge, who is in the best position to determine whether or not anything has happened likely to affect the justice of the verdict. Commonwealth v. Cronin, 257 Mass. 535, 537154 N.E. 176;Hess v. Boston Elevated Railway, 304 Mass. 535, 541, 24 N.E.2d 550. We need not decide whether in this instance the action taken lay beyond the judge's discretion (which we do not imply), since in any event we cannot accept the defendant's contention as to the consequences of what was done. There is no relation between the declaring of a mistrial and a nonsuit. A mistrial is declared because of some circumstance indicating that justice may not be done if the trial continues, and it results only in the discharge of the jury and the impanelling of another jury to try the case anew. A nonsuit, as the term is used in this Commonwealth, like its counterpart a default, is ordinarily imposed upon a party because of his refusal or failure to take some step required for the further progress of the action. See Babcock v. Thompson, 3 Pick. 446, 449,15 Am.Dec. 235;Mitchell v. New England Marine Ins. Co., 6 Pick. 117, 118, 119;Earle v. Hall, 22 Pick. 102, 107;Harding v. Morrill, 136 Mass. 291;Fels v. Raymond, 139 Mass. 98, 101, 28 N.E. 691;Nickerson v. Glines, 220 Mass. 333, 336, 107 N.E. 942. If not removed, it results in a judgment for the defendant, ending the action. a plaintiff cannot, however, at his own option and without leave of court, become nonsuit by refusal to proceed with the trial, or discontinue, after the opening to the jury. Shaw v. Boland, 15 Gray 571;Derick v. Taylor, 171 Mass. 444, 50 N.E. 1038;Earl Carpenter & Sons Co. v. New York, New Haven & Hartford Railroad Co., 184 Mass. 98, 68 N.E. 28;Marsch v. Southern New England Railroad Corp., 235 Mass. 304, 307, 126 N.E. 519;Nicolai v. Nicolai, 283 Mass. 241, 246, 186 N.E. 240.

In this case the plaintiff's request that a mistrial be declared in no way implied an abandonment of the action or any intention not to proceed if his...