Nagle v. Driver

• Decision Date: 29 June 1926
• Citation: 152 N.E. 740,256 Mass. 537
• Parties: NAGLE v. DRIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 537

152 N.E. 740

NAGLE

v.DRIVER.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1926.

Report from Superior Court, suffolk County; F. Lawton, Judge.

Action of tort by Anna Nagle against Willaim Driver, Jr., to recover for personal injuries. Verdict for plaintiff, and, before recordation, court reserved leave with jury's consent to direct verdict for defendant if the Supreme Judicial Court decided such verdict should have been ordered. After recording verdict, defendant's motion for new trial was allowed and case was reported. Report dismissed.

A. J. Berkwitz, of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison and K. C. Parker, all of Boston, for defendant.

RUGG, C. J.

This is an action of tort for personal injuries. At the close of the evidence the defendant made a motion for a directed verdict in his favor and excepted to its denial. Verdict was returned for the plaintiff. The case comes before us on ‘report,’ wherein the judge states that:

‘Before recording the verdict I reserved leave with the assent of the jury to enter a verdict for the defendant if, upon the exceptions taken or the questions of law reserved, * * * the Supreme Judicial Court should decide that such verdict should have been ordered. After the verdict the defendant filed a motion for a new trial, alleging four grounds, as follows: 1. Said verdict was against the law. 2. Said verdict was against the evidence. 3. Said verdict was against the weight of the evidence. 4. The damages awarded thereby were excessive. I granted the motion on the first three grounds alleged, set aside the verdict and ordered a new trial; but being of opinion that the correctness of my ruling submitting the case to the jury ought to be determined before further proceedings are had I stayed further proceedings and report the case for that purpose to the full court. If the submission of the case to the jury was error, judgment for the defendant is to be ordered; otherwise a new trial is to be had.’

This case is not rightly before us. There is no authority in law for such form of report as here was made. The provisions of G. L. c. 231, § 120, are applicable only when a verdict or finding has been entered and stands capable of being the basis of a final judgment if found to be without taint of material error in law. It is of no consequence in this connection whether it be the verdict actually rendered by the jury or the verdict entered by order of the court under leave reserved with assent of the jury; but there must be a verdict. Kaminski v. Fournier, 235 Mass. 51, 126 N. E. 279;Goetze v. Dominick, 246 Mass. 310, 140 N. E. 802;Bothwell v. Boston Elevated Railway, 215 Mass. 467, 102 N. E. 665, L. R. A. 1917F, 167, Ann. Cas. 1914D, 275.

In the case at bar the only verdict rendered has been set aside by the judge for reasons which vitiate its vitality as a whole. The setting aside of the verdict, on the ground that it was ‘against the law,’ under the circumstances here disclosed imports that the jury failed to observe the rulings of law given to them by the court. If the factor which made the verdict ‘against the law’ had been in the opinion of the judge a misdirection in law made by himself at the trial, it would have been expected that such question of law would be stated in the report, or at least that it would be stated that the verdict was set aside on that ground. Parker v. Lewis J. bird Co., 221 Mass. 422, 109 N. E. 368;Loveland v. Rand, 200 Mass. 142, 85 N. E. 948.

The other two grounds upon which the verdict was set aside in the case at bar import such entire wrongful conduct on the part of the jury that the verdict with justice cannot be allowed to stand. The...