DeLuca v. Boston Elevated Ry. Co.

• Decision Date: 02 December 1942
• Citation: 45 N.E.2d 463,312 Mass. 495
• Parties: DeLUCA v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 495

45 N.E.2d 463

DeLUCA

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 2, 1942.

Exceptions from Superior Court, Middlesex County; F. J. Donahue, Judge.

Action by Agnes DeLuca against Boston Elevated Railway Company to recover for injuries sustained by plaintiff in collision between automobile in which plaintiff was riding and motorbus owned by defendant and operated by its servant. To review an order denying plaintiff's motion for a new trial after vacating a previous order allowing the motion for new trial, plaintiff brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

F. V. McMenimen, of Boston, for plaintiff.

R. B. Snow, of Boston, for defendant.

FIELD, Chief Justice.

This action of tort for negligence, to recover compensation for personal injuries sustained by the plaintiff as the result of a collision, on October 28, 1939, between an automobile in which she was riding and a motor bus owned by the defendant and operated by its servant, was tried in the Superior Court before a jury. The jury returned a verdict for the defendant, and stated in response to a question by the judge that they found that the operator of the motor bus was not negligent.

The plaintiff made a motion for a new trial. The only grounds of the motion here material are ‘That since the trial of this case, proof has come to the knowledge of the plaintiff, that a witness for the defendant, who testified at the trial as to how the accident happened, and who was the only witness for the defendant on the street at the time of the accident, was actually not present and did not see this accident happen,’ and ‘To prevent a miscarriage of justice.’ The motion was heard by the trial judge on affidavits submitted in behalf of the plaintiff and counter affidavits submitted in behalf of the defendant. The court on December 18, 1941, entered the following order: ‘Plaintiff's motion for a new trial-as amended-allowed,’ and thereafter, on December 24, 1941, entered the following order: ‘The allowance of the plaintiff's motion for a new trial in this case, is hereby vacated, having been allowed by mistake; the amendment to the motion is allowed and the motion as amended is denied.’ There was no specific ruling of law or denial of any requested ruling. And there were no specific findings of fact. The plaintiff excepted to the denial of her motion for a new trial.

The plaintiff contends (a) that it was error to vacate the order allowing the motion for a new trial, and (b) that it was error to deny this motion.

1. There was no error in vacating the order allowing the motion for a new trial. This order recites that the motion for a new trial had been ‘allowed by mistake,’ but the nature of the ‘mistake’ does not appear. This, however, is immaterial. Obviously there had been no entry of final judgment. Before the entry of such a judgment it was within the power of the trial judge to make the records of the court conform to the facts by striking therefrom an order that did not conform to the decision intended by him to be made, or, even if the order entered did so conform, it was within the power of the trial judge to reconsider his decision and, if he concluded that it was erroneous, to correct the error. And he could correct a mistake or error of either kind without further hearing or notice to the parties. Randall v. Peerless Motor Car Co., 212 Mass. 352, 388, 389, 99 N.E. 221;Waucantuck Mills v. Magee Carpet Co., 225 Mass. 31, 33, 113 N.E. 573;Conway v. Kenney, 273 Mass. 19, 23, 172 N.E. 888;Jamnback v. Aamunkoitto Temperance Society, Inc., 273 Mass. 45, 50, 172 N.E. 884;Peterson v. Hopson, 306 Mass. 597, 602, 29 N.E.2d 140, 132 A.L.R. 1;Fine v. Commonwealth, 312 Mass. 252, 254-260, 44 N.E.2d 659. The distinction between the power of a judge to correct a clerical error and his power to correct a judicial error, where a final judgment has been entered, is without application to a case like the present where the case has not passed beyond the power of the court by reason of the entry of a final judgment. See Karrick v. Wetmore, 210 Mass. 578, 579-580, 97 N.E. 92;Kingsley v. Fall River, 280 Mass. 395, 397, 398, 182 N.E. 841;Prenguber v. Agostini, 289 Mass. 222, 223, 193 N.E. 743.

2. There was no error in the denial of the motion for a new trial.

The ground for a new trial upon which the plaintiff now relies for reversal of the action of the trial judge is alleged newly discovered evidence, according to the fourth ground of the motion, considered in connection with the fifth ground thereof, to ‘prevent a miscarriage of justice.’ But as no basis for the fifth ground of the motion is disclosed by the bill of exceptions apart from the fourth ground, the fifth ground requires no independent consideration.

A new trial on the ground of newly discovered evidence cannot properly be granted unless it is found that the evidence relied on was not available to the party seeking a new trial for introduction at the original trial by the exercise of reasonable diligence, and that such evidence is material not only in the sense that it is relevant and admissible but also in the sense that it is important evidence of such a nature as to be likely to affect the result. And even if these facts are found, the judge is not necessarily bound to grant a new trial. There remains some room for the exercise of discretion by him. Sherman v. Collingwood, 221 Mass. 8, 14, 108 N.E. 508;Berggren v. Mutual Life Ins. Co., 231 Mass. 173, 176, 177, 120 N.E. 402;Davis v. Boston Elevated Railway Co., 235 Mass. 482, 496, 497, 126 N.E. 841;Nicholas v. Lewis Furniture Co., 292 Mass. 500, 505, 198 N.E. 753. Ordinarily, subject to these limitations, where, as here, no specific rulings of law are involved, the allowance or denial of a motion for a new trial on the ground of newly discovered evidence rests in the sound judicial discretion of the judge, and his action can be overturned only if it appears that there was abuse of such discretion amounting to error of law. Davis v. Boston Elevated Railway Co., 235 Mass. 482, 496, 497, 126 N.E. 841;Madden v. Boston Elevated Railway Co., 284 Mass. 490, 494, 188 N.E. 234;Nicholas v. Lewis Furniture Co., 292 Mass. 500, 505, 198 N.E. 753;Kinnear v. General Mills, Inc., 308 Mass. 344, 348, 349, 32 N.E.2d 263. See, also, Nickerson v. Glines, 220 Mass. 333, 335, 107 N.E. 942;Long v. George, 296 Mass. 574, 579, 7 N.E.2d 149.

At the original trial the evidence as to the manner in which the accident occurred was conflicting. The plaintiff introduced evidence tending to show negligence on the part of the operator of the defendant's motor bus. The defendant introduced evidence of four passengers in the motor bus tending to show the contrary. The defendant also introduced the evidence of one O'Keefe to the effect that he was on the street and saw the accident. His testimony as to the manner in which the accident occurred, though in some particulars in greater detail, in general was in accord with the testimony of the other witnesses for the defendant. No other evidence at the trial as to the manner in which the accident occurred is set out in the bill of exceptions. No witness other than O'Keefe purported to be standing on the street at the time of the accident.

The evidence relied on in support of the motion for a new trial as newly discovered evidence was contained in affidavits of several persons to the effect that O'Keefe was not on the street at the time of the accident, but, on the contrary, was in a club room near the street, and that when the crash of the motor vehicle was heard, he went to the scene of the accident. Some of the affidavits contained...