Mcgonigle v. Victor H.J. Belleisle Co.

• Decision Date: 27 June 1904
• Citation: 186 Mass. 310,71 N.E. 569
• Parties: McGONIGLE et al. v. VICTOR H. J. BELLEISLE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 310

71 N.E. 569

McGONIGLE et al. v. VICTOR H. J. BELLEISLE CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 27, 1904

COUNSEL

Elder & Whitman and Jas. T. Pugh, for plaintiffs.

J. J Pickman, for defendant.

OPINION

LATHROP, J.

This is an action of tort, in three counts. The first count is for breaking and entering the plaintiffs' close; the second for the conversion of money and goods; and the third, for the use of excessive force in removing the plaintiffs. The jury returned a verdict for the defendant on the first count, being so directed by the presiding judge, and for the plaintiffs on the last two counts, and the case is before us on the defendant's exceptions.

The facts in the case may be briefly stated as follows: The plaintiffs were tenants at will of one Marston. On February 24, 1903, Marston executed a lease to the defendant for the term of 18 months from March 1, 1903. On March 10th the defendant gave the plaintiffs notice in writing that it had taken a lease of the premises, and requested the plaintiffs to quit the said premises, as it desired to occupy the same for its own use. An action by summary process was brought by the defendant to recover possession of the premises. On March 27th the agents and servants of the defendant, by its direction, went to the premises occupied by the plaintiffs, and, immediately after gaining possession, removed the plaintiff's goods to a storehouse. On the next day the defendant gave notice to the plaintiffs where the goods were, and offered to remove them to any place the plaintiffs might desire, without any expense to them. The evidence was conflicting as to whether there was any opposition to the removal of the goods after possession was obtained, and there was evidence tending to show that the plaintiffs resisted the attempt of the defendant to enter the premises and to obtain possession, and requested the return of a trunk alleged to contain money, after it had been placed on a wagon for removal, but were driven away.

There are but two exceptions in the case. The first exception relates to the admission in evidence by the plaintiffs, against the defendant's objection, of a certified copy of the record of the proceeding by summary process in the police court of the city of Lowell. While the record was admitted, the decision of the trial judge thereon was not allowed to be read to the jury. The bill of exceptions does not contain the copy of the record, nor does it disclose for what purpose it was admitted. The plaintiffs state in their brief that it was offered under the first count, and admitted before the judge ruled that they could not recover on the first count, and there is nothing in the bill of exceptions to show the contrary. If this is so, the defendant has no ground of exception. Commonwealth v. Meserve, 154 Mass. 64, 69, 27 N.E. 997; Folsom v. Ballou Banking Co., 160 Mass. 561, 562, 36 N.E. 469; Barker v. Mackay, 175 Mass. 485, 489, 56 N.E. 614. However this may be, and without passing upon the question whether the record was admissible under the first count, we regard it as immaterial, and do not see how the mere fact that the defendant had brought a summary proceeding against the plaintiffs could have prejudiced the defendant. The burden is on the defendant, as the excepting party, to show that it was prejudiced by the admission of the evidence, and we are of opinion that this burden has not been sustained. Earle v. Earle, 11 Allen, 1, 2; Potter v. Baldwin, 133 Mass. 427, 429, 430; Worcester Coal Co. v. Utley, 167 Mass. 558, 560, 46 N.E. 114; Koplan v. Boston Gaslight Co., 177 Mass. 15, 23, 58 N.E. 183.

The remaining exception relates to the refusal of the judge to give an instruction requested, and to the instructions given. The request was as follows: 'If the defendant had the right to remove the goods of the plaintiffs, and to obtain possession of the premises wherein they were, the defendant was justified in taking reasonable precaution to prevent the loss or damage to the goods or effects of the plaintiffs, by putting them in a suitable place for storage at the expense of the defendant, subject to the order of the plaintiffs giving them reasonable notice...