Energy Elec. Co. v. Gen. Elec. Co.

• Decision Date: 01 March 1928
• Citation: 262 Mass. 534,160 N.E. 278
• Parties: ENERGY ELECTRIC CO. v. GENERAL ELECTRIC CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 534

160 N.E. 278

ENERGY ELECTRIC CO.

v.GENERAL ELECTRIC CO. et al.

Supreme Judicial Court of Massachusetts, Essex.

March 1, 1928.

Exceptions from Superior Court, Essex County; Louis S. Cox, Judge.

Action by the Energy Electric Company against the General Electric Company and others.Verdict was directed in favor of defendants.On plainitff's petition to establish exceptions disallowed by trial judge and on plaintiff's exceptions on motion for new trial.Petition to establish exceptions dismissed, and exceptions on motion for new trial overruled.W. F. Barrett, of Haverhill, for plaintiff.

R. G. Dodge and L. Curtis, 2d, both of Boston, for defendants.

RUGG, C. J.

This case comes before us on a petition to establish exceptions disallowed by the trial judge as ‘being not conformable to the truth.’It has been referred to a commissioner, whose report contains findings of all material facts.From this report it appears that when the case came on to be tried the judge stated that he would have the opening of counsel for the plaintiff taken by the stenographer, and, if the case was then sufficiently developed to enable him to rule upon the governing principles of law thus presented, he might make a ruling.The judge also stated that if, after opening was made, it was not satisfactory, to counsel for the plaintiff, amendments might be made.There was no objection to this procedure.The opening was made under those conditions.Motion for directed verdict in favor of the defendant was prepared and verdict directed accordingly.While the discussion of the legal principles involved was in progress between court and counsel, the opening was transcribed by the stenographer under direction of the court and two copies distributed to counsel.This transcript was read and studied by court and counsel.Counsel for the plaintiff suggested some changes in dates as stated in the opening, but these were not insisted upon.Counsel for the plaintiff was permitted to make certain corrections in the opening by having pronouns changed and by adding two concluding sentences.

The bill of exceptions as filed contained not only the opening thus amended and corrected but a statement that the opening ‘briefly sketched a part of the plaintiff's case, stating some of the facts as they would appear in evidence and part of the issues involved.’As to this statement the commissioner was unable to find that any part of the plaintiff's case was not outlined in the opening, or that any of the issues involved in the trial were not mentioned, but found that the opening did not ‘briefly sketch only a part of the plaintiff's case or only a part of the issues involved in the trial.’The exceptions as filed further purported to recite occurrences between the trial judge and counsel for plaintiff in the attempt of the latter to amplify the opening in substance as follows, to the effect that one of the counsel for the plaintiff began to read other statements into the opening, sketching other issues raised by the pleadings and omitted by the counsel making the opening, who was not familiar with details and had not covered all the issues.‘The court then stopped the plaintiff's counsel,’ saying that the statements he was attempting to put into the opening were immaterial.‘Plaintiff's counsel informed the court that he considered these additional statements necessary in order to properly sketch the plaintiff's case but, the court ruled otherwise and, if the plaintiff's counsel had been allowed by the court to have continued, he would have stated in substance the following.’Then follow nearly two printed pages in the record of additional statements, which would have been made a part of the opening if permitted by the judge, but which were forbidden by him.As to this recital the commissioner does ‘not find that counsel for the petitioner began to read from any paper any additional statements that he desired to have incorporated in the opening as alleged.’He does not find that the counsel who made the opening ‘was not familiar with all the details of the case, or that he did not touch upon all of the issues.* * * The court did not at any time stop the plaintiff's counsel from stating what amendments, if any, he desired to have made to the opening.There was no evidence warranting me in finding that the plaintiff's counsel informed the court that he considered certain additional statements necessary in order to properly outline his case.’He further finds that the recitals in this alleged written statement ‘were never mentioned to the presiding judge, either verbatim or in substance, and counsel for the petitioner admitted that they were first written out after the direction of the verdict.’His conclusion on this point is in these words:

‘Upon the testimony I find that every suggestion that the plaintiff's counsel made to the presiding justice in reference to making changes in or amendments to the opening, was carefully considered by the court, and as far as the testimony goes warrants me in finding that in every case they were adopted.I find that the court wanted the opening to be full, fair and complete.Counsel was not prevented in any way by the court from making any suggestions which he cared to offer.I, therefore, find that that portion of the bill of exceptions now in question is not conformable to the truth and that the entire portion has no foundation in fact.'

It thus is manifest that there was one single comprehensive exception saved at the trial, namely, to the direction of the verdict in favor of the defendant on the case made out by the opening as amended.Since that opening was taken stenographically, immediately transcribed and studied by court and counsel, it is plain that that single exception could have been embodied in a bill...