Kinnear v. Gen. Mills, Inc.

• Citation: 308 Mass. 344,32 N.E.2d 263
• Parties: KINNEAR v. GENERAL MILLS, Inc.
• Decision Date: 25 February 1941
• Court: United States State Supreme Judicial Court of Massachusetts

308 Mass. 344

32 N.E.2d 263

KINNEAR

v.GENERAL MILLS, Inc.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 25, 1941.

Exceptions from Superior Court, Worcester County; Goldberg, Judge.

Action by Blanche Kinnear against General Mills, Inc., for personal injuries. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and LUMMUS, QUA, COX, and RONAN, JJ.

G. B. Rowell and R. J. Cotter, both of Boston, for plaintiff.

C. C. Milton, R. C. Milton, and J. T. Shea, all of Worcester, for defendant.

COX, Justice.

Three cases, of which this is one, to recover damages for personal injuries were tried together. Verdicts were returned for the plaintiffs, the amount of the plaintiff's in the case at bar being $25,000 which was the ad damnum or her writ. After the jury had retired to consider the cases, it returned to the court room and propounded the following question: ‘Your Honor, we would like to know if we can award more damages to a plaintiff than said plaintiff asked for in the suit?’ The judge replied: ‘You have asked a question. I do not care to read it aloud in the courtroom. I will put it in the record. The answer to the question is yes. Do you understand it?’ The foreman of the jury replied: ‘Yes.’ ‘The defendant seasonably claimed an exception in each case to the court's answer ‘Yes' to the question propounded by the jury as to whether they could find more than the amount claimed in a plaintiff's writ.’ Motion for new trial was made in each case for the reasons assigned that the verdict was against the evidence and the weight of the evidence and that the amount was excessive. At the hearing on the motions, the following requests for rulings were filed in each case: ‘1. As matter of law the finding as to damages is so excessive and so violently contrary to the evidence as to taint the verdict as an entirety and require a complete new trial. 2. As matter of law the finding as to damages is so excessive and so violently contrary to the evidence as to require the court, in the exercise of its discretion, to set the verdict aside and grant a complete new trial.’ These requests were denied subject to the defendant's exception. In the case at bar the verdict was adjudged excessive by $5,000 and it was ordered that unless the plaintiff, within ten days, should remit that sum, the verdict would be set aside. G.L.(Ter.Ed.) c. 231, § 127. The plaintiff seasonably remitted. The defendant excepted to the foregoing order and ‘to the denial of its motion for a new trial.’ Finally the defendant filed a motion, which was denied subject to its exception, to set aside the verdict, and for a new trial, on the ground that, after remittitur, the verdict was excessive. The defendant's exception to the denial of its motion for a directed verdict has not been argued and is treated as waived.

1. We are of opinion that there was no error in dealing with the question propounded by the jury. It is true that damages are limited by the ad damnum and a jury may be so told, although it is within the power of the judge to allow a motion to increase the ad damnum. And where a judge contemplates allowing such a motion he may properly instruct the jury to find the damages without regard to the ad damnum. It appears in the bill of exceptions that in one of the companion cases counsel for the plaintiff particularly requested that the writ be taken by the jury. In the other companion case a motion was made before the jury was impanelled to increase the ad damnum, but this was not acted upon before verdict. No motion to increase the ad damnum in the case at bar was made. The writ in each case went to the jury. The significance of these facts may subsequently appear.

No question is raised as to the propriety of the jury propounding a question or a reply of the judge. See Lund v. Tyngsboro, 11 Cush. 563, 568,59 Am.Dec. 159;Nelson v. Dodge, 116 Mass. 367, 369, 370. Compare Lewis v.Lewis, 220 Mass. 364, 107 N.E. 970, L.R.A.1915D, 719, Ann.Cas. 1917A, 395; G.L.(Ter.Ed.) c. 234, § 34. The defendant contends, in substance, that the question was ambiguous, that the judge should have answered more fully so that it would clearly appear that the question propounded was understood by the judge to be an inquiry whether the jury could award damages in excess of the ad damnum of the writ, and that the result of the entire colloquy between the judge and jury was to leave it to the jury to determine ‘without let or hindrance any amount for any supposed elements of damages.’ But it is apparent from the record that at the time the question was propounded, the defendant's counsel had no uncertainty as to the import of the question, for the exception that was claimed was to the judge's answer to the quesion whether the jury could find more than the amount ‘claimed in a plaintiff's writ.’ None of the judge's charge is printed in the record. It is common trial practice for judges of the Superior Court to instruct juries generally as to the functions of the writ and pleadings in a case, and in this connection to explain the purpose and limitations of the ad damnum. In the case at bar it is apparent that counsel in at least one case was concerned and requested that the writ in that case, where the ad damnum was $100,000, be taken by the jury during its consideration of the case. As already pointed our, a motion in another case to increase the ad damnum had been made, but the court deferred action on this motion until after verdict, stating that ‘if the amount of the verdict were larger than the ad damnum the motion would be taken care of.’ See Luddington v. Goodnow, 168 Mass. 223, 225, 46 N.E. 627;Neszery v. Beard, 226 Mass. 332, 334, 115 N.E. 420. Large claims for allegedly serious injuries were made. In the circumstances, with experienced trial counsel representing the defendant, it is not to be assumed that the learned judge failed to instruct the jury as to the significance, force and effect of the sum named in the ad damnum of the writ. We are of opinion that the judge was warranted in assuming that the jury wished to know if it could award damages to a plaintiff in excess of the ad damnum in the writ. See Tetreault v. Gould, 83 N.H. 99, 103, 138 A. 544. This being so, the judge was not ‘required to give additional instructions by way of explanation or...