Graustein v. Boston & Maine R.R.

• Decision Date: 25 October 1944
• Citation: 317 Mass. 164,57 N.E.2d 570
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GRAUSTEIN v. BOSTON & MAINE R. R.

317 Mass. 164

57 N.E.2d 570

GRAUSTEIN

v.BOSTON & MAINE R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 25, 1944.

Exceptions from Superior Court, Middlesex County; Sheehan, Judge.

Action by William A. Graustein against the Boston & Maine Railroad to recover for loss of some of the machinery included in one shipment and for damage sustained by machinery contained in two other shipments. After the case had been heard by a judge who died without making a decision, the case was submitted to another judge who found for defendant, and plaintiff took exceptions. On defendant's motion to dismiss the exceptions.

Motion allowed.

Before FIELD, C. J., and QUA, DOLAN, and RONAN, JJ.

W. A. Graustein, pro se.

J. De Courcy, of Boston, for defendant.

RONAN, Justice.

The plaintiff, as assignee of the consignee, seeks to recover for loss of some of the machinery included in one shipment and for damage sustained by machinery contained in two other shipments. He alleges that the loss and damage were caused by the negligence of the defendant, the terminal carrier. After the case had been fully heard by a judge who died without making a decision, it was submitted to another judge in accordance with a stipulation of the parties for his determination upon a transcript of all the evidence together with the exhibits that had been introduced at the first hearing. This judge denied certain of the plaintiff's requests for rulings and found for the defendant. The plaintiff filed a paper which read as follows: ‘Now comes the plaintiff in the above entitled action, and, within three days after his receipt from the clerk of notice of the Findings and Rulings of the Court filed therein in absence of counsel, files this his claim of all of his exceptions.’ The judge allowed a bill of exceptions which was assented to by the defendant and which contained exceptions to the rulings upon evidence made at the first trial and exceptions purported to have been taken to the denial of requests for rulings made at the second trial. The defendant in this court moved to dismiss the exceptions.

The stipulation under which the case was submitted to the second judge did not require that judge to make any rulings upon evidence or to adopt any of the rulings that had been made at the first trial. Although those rulings appeared in the transcript of the evidence introduced at the first trial, the second judge was not requested to pass upon the competency of any of this evidence. He did not make in fact any ruling with reference to this evidence. The exceptions taken at the first trial became of no avail when that trial ended without any decision. No rights of the plaintiff were affected by any of the rulings made at that trial, and he was in the same situation as if that trial had never occurred. Commonwealth v. Cronin, 257 Mass. 535, 154 N.E. 176;Bruns v. Jordan Marsh Co., 305 Mass. 437, 26 N.E.2d 368;Curley v. Boston Herald-Traveler Corp., 314 Mass. 31, 49 N.E.2d 445. The exceptions taken at that trial ceased to have any validity when the death of the judge prevented the completion of the trial, and the second judge could not infuse any life into those exceptions by his allowance, even with the assent of the defendant, of a bill of exceptions that contained the exceptions taken at the first trial. Herrick v. Waitt, 224 Mass. 415, 113 N.E. 205;Edwards v. Cockburn, 264 Mass. 112, 116, 162 N.E. 225; Sreda v. Kessel, 310 Mass. 588, 38 N.E.2d 932. No exceptions taken at the first trial were pending at the time the second judge allowed the bill of exceptions embodying those exceptions. That judge was not authorized to allow those exceptions by G.L.(Ter.Ed.) c. 231, § 115, as amended by St.1939, c. 451, § 63, which provides for the allowance of exceptions where disability, death, resignation of removal of the presiding judge prevents him from allowing them. Compare Benson v. Hall, 197 Mass. 517, 83 N.E. 1036;Commonwealth v. Gedzium, 261 Mass. 299, 159 N.E. 51. It follows that the exceptions taken at the first trial are not open.

The remaining question is whether the plaintiff properly saved any exceptions to the denial by the second judge of his requests for rulings. The plaintiff in order to secure a review by means of a bill of exceptions was bound to save and perfect his exceptions in accordance with the pertinent statutes and rules of court. Statutes relating to procedure for review are strictly construed, Martell v. Moffatt, 276 Mass. 174, 177 N.E. 102;New England Trust Co. v. Assessors of Boston, 308 Mass. 543, 33 N.E.2d 268, and noncompliance with rules of court governing the saving of exceptions will bar review. Riley v. Brusendorff, 226 Mass. 310, 115 N.E. 311;Brighton Dressed Meat Co., petitioner, 284 Mass. 530, 188 N.E. 226. The proper saving of an exception is the first and fundamental step to secure a review by a bill of exceptions. The bill is merely the vehicle by which the exception is brought up to this court. If there is no existing exception, there is nothing that the bill can bring here. Hurley v. Boston Elevated Railway, 213 Mass. 192, 99 N.E. 1056Conde Nast Press, Inc. v. Cornhill Publishing Co., 255 Mass. 480, 152 N.E. 240;Bourget v. Holmes, 297 Mass. 25, 8 N.E.2d 356;Looby v. Looby, 303 Mass. 391, 21 N.E.2d 945;Hacking v. Co-ordinator of the Emergency Relief Department of New Bedford, 313 Mass. 413, 48 N.E.2d 41.

The statute, G.L.(Ter.Ed.) c. 231, § 113, provides that ‘Exceptions may be alleged by any party aggrieved by an opinion, ruling, direction or judgment * * * of the superior court.’ It was said in Curry v. Porter, 125 Mass. 94, concerning an earlier statute, Gen.St. c. 115, § 7, differing so far as now material in form but not in meaning from the present statute, that ‘This provision imports, and such has been its uniform practical construction, that it is the duty of a party to allege his exception specifically to any ruling or...