Irving v. Bonjorno
| Decision Date | 26 June 1951 |
| Citation | 327 Mass. 516,99 N.E.2d 643 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | IRVING v. BONJORNO. |
R. H. Nitkin, Boston, for defendant.
Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.
The plaintiff's taxicab driven by his agent was damaged in a collision with an automobile on Bridge Street, Beverly, on September 6, 1947. In this action of tort, in which the writ describes the defendant as Anthony V. Bonjorno, there was a finding for the plaintiff. The Appellate Division, after twice remanding the case for amendment of the report, dismissed the report, and the defendant appealed.
The report contained 'the following special finding of fact: * * * The operator of the taxicab * * * was driving his automobile to the right of the center of the highway at a reasonable rate of speed when the automobile of the defendant turned sharply to the left passing over the center of the highway and colliding with the taxicab.' The Appellate Division entered the following order; 'Remanded to the trial judge for amendment of the report, by stating whether the report, which was made by him, contained all the material evidence.' The clerk of the District Court then notified the Appellate Division in writing that the trial judge desired to amend his report by inserting the words 'operated by Anthony J. Bonjorno.' The place in the report where these words were to be inserted cannot be determined upon this record. Thereupon the Appellate Division entered the following order: 'Motion to remand case allowed: with directions to the trial judge to include the evidence, if any, on which he based his findings that the car was operated by Anthony J. Bonjorno.'
The trial judge then filed another report containing the following facts. The only persons present at the scene of the accident were the driver of the taxicab, his passenger, and the operator of the automobile which collided with the taxicab. After the accident the operators exchanged licenses and registrations. 'The license and the registration of the operator of the automobile which was in collision with the taxicab bore the name of Anthony J. Bonjorno.' At the trial, after three witnesses were sworn, permission was asked if the defendant could draw a sketch of the scene of the accident. Permission was granted, and one of the three sworn witnesses drew such a sketch on a blackboard. The plaintiff and the operator of the taxicab, the other sworn witnesses, testified. The third witness did not testify. The defendant rested at the conclusion of the plaintiff's case. No question was raised by the defendant as to the identify of the operator of the automobile registered in the name of Authony J. Bonjorno.
The defendant contends that his ownership of the automobile has not been proved by competent evidence. This must relate to the denial of his 'motion for a directed finding.' The refusal of this request is equivalent to a ruling that the evidence warranted a finding for the plaintiff. Commonwealth v. Hull, 296 Mass. 327, 329, 5 N.E.2d 565; Forbes v. Gordon & Gerber, Inc., 298 Mass. 91, 95, 9 N.E.2d 416. There has, however, been no compliance with Rule 27 of the District Courts (1940), which requires the grounds of such a request to be specified. The Appellate Division did not review the ruling, and hence the question is not before us....
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...314 Mass. 167, 169, 50 N.E.2d 41. Gurll v. Massasoit Greyhound Association, Inc., 325 Mass. 76, 77, 89 N.E.2d 12. Irving v. Bonjorno, 327 Mass. ----, 99 N.E.2d 643. This omission precludes resting our decision upon what appears from this record to be a fatal absence of any termination of th......
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