Page v. New England Tel. & Tel. Co.

• Decision Date: 01 April 1981
• Citation: 418 N.E.2d 1217,383 Mass. 250
• Parties: David W. PAGE v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1217

418 N.E.2d 1217

383 Mass. 250

David W. PAGE v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 2, 1980.

Decided April 1, 1981.

Alan M. Katz, Arlington, for plaintiff.

William J. LeDoux, Worchester, for defendant.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

BRAUCHER, Justice.

The plaintiff, a surgeon, brought an action against the defendant, alleging negligence and breach of contract in failing to list the plaintiff in the Yellow Pages of its 1976 telephone directory for the Springfield area. See Pupillo v. New England Tel. & Tel. Co., --- Mass. --- ^a, 412 N.E.2d 335 (1980); Annot., 92 A.L.R.2d 917, 920 (1963). At the close of the plaintiff's evidence the judge directed a verdict for the defendant on the negligence count. On the contract count, he instructed the jury that damages "cannot be by conjecture, surmise or guesswork or by sympathy. They have to be actually proven to you." Further, he said, "if you find, for example, that there is a contract and that there was a breach and there were no damages proven to you in this particular case, then you would be warranted in finding for the Plaintiff and bringing nominal damages. Nominal damages are defined as minimal damages, not significant damages, existing in name only, not actual, slight, not considerable damages."

The jury returned a verdict on a verdict form reading as follows: "The jury find for the plaintiff that a contract did exist and that it was violated by the defendant, and assess damages in the sum of nominal " (The words in italics were handwritten on the form). By agreement of the parties, the jury were sent out again to put a "dollar and cents amount, whatever it may be, after your finding in this particular case. In other words, you made a finding of nominal damages, so put a figure after it, whatever that nominal damage is." Thirty minutes later the jury returned, having added, after "nominal," "Ten Thousand Dollars $10,000.00." The verdict was recorded and judgment was entered for the plaintiff for $10,000.

Within ten days the defendant moved under Mass.R.Civ.P. 59(e), 365 Mass. 827, 828 (1974), to alter or amend the judgment to read that the plaintiff recover $1.00. The judge allowed the motion. The Appeals Court affirmed the judgment as amended. --- Mass.App.Ct. --- ^b, 403 N.E.2d 1201 (1980). We granted the plaintiff's application for further appellate review to consider whether the judge had improperly invaded the province of the jury. We affirm the judgment of the Superior Court.

As to the direction of a verdict on the negligence count, we have nothing to add to the opinion of the Appeals Court. On the contract count, we agree with the Appeals Court that, in the absence of a showing of pecuniary loss, the plaintiff was entitled only to nominal damages. See White Spot Constr. Corp. v. Jet Spray Cooler, Inc., 344 Mass. 632, 634, 183 N.E.2d 719 (1962). Cf. Irish v. Mountain States Tel. & Tel. Co., 31 Colo.App. 89, 92-94, 500 P.2d 151 (1972) (substantial damages shown). $10,000 is not nominal. See United States ex rel. Tyrrell v. Speaker, 535 F.2d 823, 829-830 (3d Cir. 1976); Magnett v. Pelletier, 488 F.2d 33, 35 (1st Cir. 1973); McCormick, Damages § 21 (1935).

When the jury first returned its verdict, the judge could have accepted the verdict and added a $1.00 amount himself. See Chaffee v. Pease, 10 Allen 537 (1865). "Before a verdict has been affirmed and recorded," however, "the judge may set it aside or instruct the jury and send...