Gray v. City of Boston

• Decision Date: 12 November 1931
• Citation: 178 N.E. 286,277 Mass. 166
• Parties: GRAY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 166

178 N.E. 286

GRAY

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 12, 1931.

Exceptions from Superior Court, Suffolk County; J. C. Donnelly, Judge.

Action by John F. Gray against the City of Boston. From an order granting defendant's motion for a directed verdict, plaintiff brings exceptions.

Exceptions overruled.

J. L. Sheehan, of Boston, for plaintiff.

J. P. Lyons, Asst. Corp. Counsel, of Boston, for defendant.

RUGG, C. J.

It is recited in the exceptions that this is an action of tort to recover compensation for damages growing out of an alleged taking of land by the defendant for a station on the East Boston tunnel, and that such damages arose from the careless way in which the defendant carried on the work of constructing the station and from the negligence of the servants and agents of the defendant in occupying and using premises of the plaintiff and in moving and handling his property, whereby injury resulted to personal property and the business of the plaintiff. The declaration alleged negligence of the servants and agents of the defendant by interfering with the business of the plaintiff, by placing materials and tools upon his land and by injuring his property. The case came on for trial by jury. The plaintiff's counsel made an opening. The defendant's motion, that on that opening a verdict be directed in its favor, was granted. The exceptions of the plaintiff to the granting of that motion bring the case here.

The procedure thus adopted is recognized and permissible. Under it all statements of fact in such opening must be taken to be true. Murphy v. Boston & Maine Railroad, 216 Mass. 178, 103 N. E. 291,Energy Electric Co., Petitioner, 262 Mass. 534, 538, 160 N. E. 278, and cases cited.

The opening set forth in unequivocal terms the contention that the taking under which the work was purported to be done by the city was illegal, not in conformity to statute, and conferred no rights under eminent domain. It further set forth numerous acts of negligence and of trespass and of interference with his business in the performance of that work, all to the injury of the plaintiff. No reference was made to a vote of the city council or of any other board of the defendant. If the enterprise which caused injury to the plaintiff was undertaken and executed without compliance with enabling statutory authority, the defendant was not liable. Cavanagh v. Boston, 139 Mass. 426, 435, 1 N. E. 834,52 Am. Rep. 716,Wojnar v. County of Worcester, 261 Mass. 99, 158 N. E. 329, and cases cited. The facts stated in the opening did...