Godfrey v. Caswell

• Decision Date: 01 April 1947
• Citation: 321 Mass. 161,72 N.E.2d 402
• Parties: GEORGE J. GODFREY v. RICHARD A. CASWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 161

72 N.E.2d 402

GEORGE J. GODFREY v. RICHARD A. CASWELL.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1947

January 9, 1947.

Present: FIELD, C.

J., RONAN, WILKINS & SPALDING, JJ.

Practice, Civil Requests, rulings and instructions, Findings by judge. Motor Vehicle, Nonresident.

In an action heard in a District Court where the plaintiff was the only witness and the judge found in his favor, the granting of a ruling requested by the defendant that "the evidence warrants a finding for the defendant" did not mean that the judge impliedly found that the plaintiff had testified unfavorably to himself and that such testimony was binding upon him so that, he being the only witness, a finding for the defendant was required, but merely meant that a finding for the plaintiff was not required as a matter of law; and no error appeared in the denial of a motion by the defendant that the ruling be corrected as inconsistent with the general finding for the plaintiff.

The propriety of a finding of fact favorable to the plaintiff at the trial of an action heard in a District Court could not be raised on a motion by the defendant for correction of a certain ruling on the ground that it was inconsistent with a general finding for the plaintiff.

At the trial of an action for damage arising out of a collision of automobiles on a public way in Massachusetts, a request by the defendant for a ruling, that, under G. L. (Ter. Ed.) c. 90, Section 9 as amended, the automobile of the plaintiff, operated by him was not lawfully upon the way at the time of the collision, properly was denied where there was evidence that the plaintiff was a resident of New Hampshire, that his automobile was registered there, and that he "had on his person an insurance policy complying with the Massachusetts compulsory insurance statute," and no contention was made that the State of New Hampshire at the time of the accident did not grant to residents of Massachusetts privileges substantially similar to those granted to residents of New

Hampshire by Section 3, as amended.

No error appeared, at the trial of an action of tort in a District Court, in the denial of a request by the defendant that "the plaintiff has failed to prove by a fair preponderance of the evidence the allegation in his declaration," even if it be assumed to be a request for a ruling of law, where the judge found for the plaintiff and there was evidence to support the finding.

TORT. Writ in the East Boston District Court dated August 8, 1944. The case was heard by Loschi, J.

A. B. Way, Jr., for the defendant.

R.

F. Roach, for the plaintiff.

SPALDING, J. This is an action of tort arising out of a collision in Marlborough between an automobile owned and operated by the plaintiff and an automobile operated by the defendant. The judge made a general finding for the plaintiff. A report to the Appellate Division was dismissed and the defendant appealed to this court.

1. The only witness at the trial was the plaintiff.

The judge granted the defendant's second request that "the evidence warrants a finding for the defendant." The defendant then filed a motion seeking a correction of this ruling on the ground that it was inconsistent with the finding for the plaintiff. This was a proper method of raising this question. DiLorenzo v. Atlantic National Bank, 278 Mass. 321 , 323-324. National Shawmut Bank v. Johnson, 317 Mass. 485 , 492. The motion was rightly denied. The alleged inconsistency, it is argued, arises from the fact that the judge by granting the second request impliedly found that there was evidence unfavorable to the plaintiff, and that since this came solely from the plaintiff it was binding upon him and required a finding for the defendant. But this conclusion rests on a false premise, for it attributes to the ruling an effect which it does not have. The granting of the request was a ruling merely that the evidence did not as matter of law require a finding for the plaintiff. Hoffman v. Chelsea, 315 Mass. 54 , 55. And obviously such a finding was not required, for the judge was not obliged to believe the plaintiff's evidence even though it was uncontradicted. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314 . Lydon v. Boston Elevated Railway, 309 Mass. 205 . Reardon Importing Co. v. Security Trust Co. 318 Mass. 304 , 307. If a finding for the plaintiff was not required, a finding for the defendant was warranted. The judge was therefore obliged to grant the request, and such a ruling would not be inconsistent with a finding for the plaintiff. Dangelo v. Farina, 310 Mass. 758 , 759. London Clothes, Ltd. v. Maryland Casualty Co. 318 Mass. 692 , 699.

2. The motion to correct the judge's ruling also sought to raise the question that the defendant was not sufficiently identified in the evidence.

But this part of the motion had nothing to do with the correction of any ruling of law; it amounted to no more than a challenge of the judge's finding. It is well settled that "A finding of fact is not a proper subject of a report.

" James B. Rendle Co. v. Conley & Daggett, Inc. 313 Mass. 712. Perry v. Hanover, 314 Mass. 167 , 169. Ryerson v. Fall River Philanthropic Burial Society, 315 Mass. 244 , 245. The proper method of raising this question would have been by appropriate requests for rulings presented before the closing arguments or within such time thereafter as the court might allow. See Rule 27 of the District Courts (1940); Reid v. Doherty, 273 Mass. 388 , 389. But even if the question were properly before us, it is without merit. The evidence was sufficient to identify the defendant as the person involved in the accident.

3. The judge rightly denied the defendant's first and fourth requests

^[1] which asked him to rule that the plaintiff's automobile was not lawfully upon the highway at the time of the accident. There was evidence that the plaintiff's automobile was registered in New Hampshire and it could have been found that the...