Gaw v. Hew Const. Co.
| Decision Date | 24 May 1938 |
| Parties | IRENE GAW v. HEW CONSTRUCTION COMPANY. IRENE GAW, administratrix, v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 7, 1938.
Present: RUGG, C.
J., FIELD, LUMMUS DOLAN, & COX, JJ.
Practice, Civil Exceptions: sufficiency of bill, what questions open. Nuisance. Way, Public: nuisance. Proximate Cause.
An exception to the denial of a request for a ruling predicated "on all the evidence" presents no question of law to this court where the evidence is not set out in the bill of exceptions.
A bill of exceptions which did not set out the evidence at the hearing by a judge without a jury, but did include subsidiary findings of fact by the judge, an agreement by the parties that there was evidence warranting the findings, a statement by the judge interpreted by this court as meaning that he reached his conclusions on the basis alone of those subsidiary facts, and an exception by the plaintiff to a general finding for the defendant presented the question of law, whether the general finding was permissible on the subsidiary findings.
Upon findings that a covered passageway, required by a municipal permit to be maintained by a contractor on a sidewalk during construction of an adjacent building, was temporarily, but not for an unreasonable length of time, blocked by the contractor for the purpose of delivering materials for use in the building, further findings were permissible that such blocking was not a nuisance nor the proximate cause of injuries sustained by a pedestrian who because thereof walked into the street and slipped on ice there, and that, the contractor was not liable for such injuries.
TWO ACTIONS OF TORT. Writs in the Superior Court dated May 13 and July 1, 1935, respectively.
The cases were heard together by Hanify, J., and were submitted on briefs to this court.
M. Kabatznick, H.
Gesmer, & I. Rosenblatt, for the plaintiffs.
T. H. Mahony & R.
J. Coffin, for the defendant.
These are two actions of tort. The first is brought to recover compensation for personal injuries sustained under circumstances which will be hereinafter described. The second action is for consequential damages. The actions were tried together before a judge of the Superior Court, without a jury, who made certain findings of fact and found for the defendant in each case. The cases come before us on the plaintiffs' exceptions to the denial of certain requests for rulings which were predicated "on all the evidence," and on their exceptions to the general findings of the judge for the defendant. None of the evidence is set forth in the record, but it is therein stated that "There was evidence which would warrant the findings of the court." In these circumstances the exceptions to the denial of the requested rulings cannot be sustained, because they rest on the sufficiency of evidence which is not set out in the record. Barnes v. Springfield, 268 Mass. 497 , 504; Household Engineers Inc. v. Ryder, 277 Mass 523. While the plaintiffs pursued the correct practice by the requested rulings to raise the question of law whether the evidence was sufficient to warrant findings for them, they rendered the exceptions to their denial ineffective by failure to see that the bills of exceptions included all that is necessary to decide whether the denial was or was not erroneous. See Forbes v. Gordon & Gerber, Inc. 208 Mass. 91 , 94-95, and cases cited. See also Posell v. Herscovitz, 237 Mass. 513 , 516, and cases cited.
The remaining exceptions of the plaintiffs are to "the findings of the court for the defendant" in each case. By his ultimate findings for the defendant the judge impliedly ruled that on all the evidence those findings were warranted as matter of law. In the ordinary case of a trial on evidence the party wishing to raise a question of law must do so before the trial is over, and if he fails to do so, or, as in the case at bar, having done so fails to have included in the bill of exceptions all that is necessary to decide whether the judge erred, an exception to the general finding or decision of the judge brings no question of law before us. See Keohane, petitioner, 179 Mass. 69; Baker v. Davis, 299 Mass. 345 , 348; Posell v. Herscovitz, 237 Mass. 513 , 516.
In the case at bar, however, the judge in his findings of fact at the point just before his general finding for the defendant in each case stated: "I find and rule that the blocking of the passageway as aforesaid was not the direct and proximate cause of the accident; nor did it constitute a nuisance." The judge thus ruled that the subsidiary facts found by him warranted the findings that the blocking of the passageway was not the proximate cause of the accident and did not constitute a nuisance, and hence also warranted his ultimate findings for the defendant. See Sylvester v. Shea, 280 Mass. 508 . We interpret the words "as aforesaid" to mean that the judge reached his conclusions on the basis alone of the subsidiary facts found by him which the plaintiffs concede were warranted by the evidence, and are of opinion that the case stands as one where all the material subsidiary findings of fact have been made and that the plaintiffs' exceptions to the general findings of the judge for the defendant in these circumstances bring before us the question of law whether those findings were permissible on the subsidiary facts found, under the rule stated in Leshefsky v. American Employers' Ins. Co. 293 Mass. 164 , 167.
The findings of the judge other than those just referred to and his general findings for the defendant are as follows: ...
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