Perry v. Hanover

• Citation: 50 N.E.2d 41,314 Mass. 167
• Parties: PERRY v. HANOVER, and four other cases.
• Decision Date: 28 June 1943
• Court: United States State Supreme Judicial Court of Massachusetts

314 Mass. 167

50 N.E.2d 41

PERRY

v.HANOVER, and four other cases.

Supreme Judicial Court of Massachusetts, Essex.

June 28, 1943.

Actions by Armond Perry, by next friend, and by Dorothy King, and by Dorothy Perry, and by Annie King, and by Annie Addison, against Louis Hanover for injuries sustained in an automobile collision. In each case there was a finding for defendant. Certain requests for rulings made by plaintiffs were denied, and a report to the Appellate Division applicable to all cases was dismissed, and the plaintiffs appeal.

Order dismissing report affirmed.Appeal from Superior Court, Essex County; Chas. A. Murphy, Special justice.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

H. C. Mamber, of Lynn, for plaintiffs.

J. F. Doyle, of Lynn, for defendant.

FIELD, Chief Justice.

These five actions of tort were brought in a District Court to recover compensation for personal injuries alleged to have been sustained by the five plaintiffs, respectively, as the result of a collision between an automobile in which the plaintiffs were riding and an automobile negligently operated by the defendant. Apparently the cases were tried together. In each case there was a finding for the defendant. The plaintiff in each case made eight so called ‘requests for rulings,’ all of which, except the seventh request, were denied by the trial judge. He granted the seventh request that ‘Upon all the evidence, the court rules that the plaintiff was in the exercise of due care.’ The judge stated: ‘Request number seven allowed, all other requests denied, as not applicable to facts found by me. I find as a fact that the defendant was not negligent.’ A report to the Appellate Division applicable to all five cases was dismissed, and the plaintiffs appealed.

The report states that the ‘plaintiffs being aggrieved by the rulings and findings made by the court, hereby request that the same be reported to the Appellate Division for determination.’ This report is objectionable in form. An aggrieved party requesting a report is required to file a draft report within a fixed time. And it was provided by Rule 28 of the District Courts (1932) (see now Rule 28 of the District Courts [1940] that ‘Such draft report shall generally as fully as may be follow the model elsewhere printed in these rules.’ The draft report model so printed contains the following: ‘The plaintiff (defendant) claiming to be aggrieved by the rulings and refusals to rule as requested, I hereby report the same to the Appellate Division for determination.’ The actual report as distinguished from the draft report is the report of the trial judge. The present report contains no statement that the judge reports the matters report of which was requested by the plaintiff. However, notwithstanding this deviation from the correct form of a report, we treat the report as a report of these matters so far as they are properly the subjects of a report. But it cannot be regarded as a report of ‘findings made by the court.’ The governing statute provides only for a report of ‘any ruling on a matter of law.’ G.L.(Ter.Ed.) c. 231, § 108. A finding of fact is not a proper subject of a report. James B. Rendle Co. v. Conley & Daggett, Inc., Mass., 48 N.E.2d 676, and cases cited. The only matters for our consideration, therefore, are whether the judge ruled correctly in denying the plaintiff's ‘requests for rulings.’

The report states that what is therein recited is ‘substantially all the evidence that was introduced in these cases.’ It may well be doubted whether this statement is the equivalent of a statement, commonly essential to a report, that the report contains all the evidence material to the questions reported or ‘the substance of all the material evidence.’ Hall v. Smith, 283 Mass. 166, 167, 185 N.E. 850;Commonwealth v. McIntosh, 259 Mass. 388, 391, 156 N.E. 712. But without discussing whether the report is fatally defective in this respect (see Swistak v. Paradis, 288 Mass. 377, 380, 192 N.E. 920), we consider the questions of law reported.

There was no error in denying the ‘requests for rulings.’

1. The first, second, third and fourth ‘requests for rulings' are requests in somewhat different forms for rulings that upon all the evidence the defendant was negligent, specifying in three requests particular respects in which he was negligent. The fourth request was for a ruling ‘that the injury to the plaintiff was caused by the negligent operation of the automobile driven by the defendant.’ These are not requests for rulings of law that the defendant was negligent if the specific facts recited in the requests were found, and the principles applicable to such requests need not be discussed. On the contrary, these requests, though purporting to be ‘requests for rulings,’ are, in substance, requests for findings of the fact that the defendant was negligent and of the specific facts recited in the requests (see Geraci v. A. G. Tomasello & Son, Inc., 293 Mass. 552, 554, 200 N.E. 367) except as they may be construed as requests for rulings of law that findings of the facts recited therein are required as matter of law upon the evidence. See Old Colony Trust Co. v. Wallace, 212 Mass. 335, 337, 98 N.E. 1035;Howard v. Malden Savings Bank, 300 Mass. 208, 211, 15 N.E.2d 233. Unless the findings of fact so recited were so required, there was no error in denying the requests. A judge is not bound to make findings of fact that are not required as matter of law upon the evidence, in response to requests for such findings. Memishian v. Phipps, 311 Mass. 521, 523, 524, 42 N.E.2d 277.

A finding that the defendant was negligent was not required as matter of law upon the evidence. The report states that the ‘following facts appeared in evidence and were undisputed.’ Except for a statement that the ‘plaintiffs were returning from a visit to a hospital and were on their way to their home in Lynn; they were proceeding on this Route 20 which is a three-lane route for automobiles,’ the matter following the introductory statement is a recital of testimony at the trial. This matter must be treated as evidence and not as facts established. The statement that the ‘following facts * * * were undisputed’ obviously is inaccurate for in many particulars the evidence was contradictory. Moreover, even testimony that is ‘undisputed’ or ‘uncontradicted’ need not necessarily be believed. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323, 84 N.E. 129;Lydon v. Boston Elevated Railway, 309 Mass. 205, 206, 34 N.E.2d 642. This principle, however, is subject to the limitation that a party is bound by his own testimony unfavorable to him ‘except as he is entitled to the benefit of any more favorable explanation of the accident presented by the evidence.’ Sooserian v. Clark, 287 Mass. 65, 67, 191 N.E. 763;Murphy v. Smith, 307 Mass. 64, 66, 29 N.E.2d 726. The defendant testified ‘that as he came to a bend in the road going down-grade his view being obstructed, he first noticed that plaintiff's automobile coming towards him in the center of the lane; that the plaintiff's automobile was passing a truck; that his car collided with the car in which the plaintiffs were riding,’ and in these respects there was no evidence more favorable to the defendant. But the evidence was conflicting as to the side of the road upon which the automobile operated by the defendant was travelling at the time of the accident and as to whether at that time its lights were lighted. Indeed, there is nothing in the evidence to show that the accident occurred at a time when the lights should have been lighted. And there is nothing in the evidence to show the distance for which the defendant's view was obstructed. Moreover, there was no evidence of the speed at which the automobile operated by the defendant was travelling. Even if the defendant was bound by his testimony herein recited, a finding was not required that he was negligent. A collision between the two automobiles in the circumstances disclosed by this testimony did not necessarily show negligence on the part of the defendant. Consequently the judge could not rightly have ruled as matter of law, in accordance with the first, second, third and fourth requested rulings, that the defendant was negligent.

Furthermore, there are other objections to these requested rulings. Each of the first three of them calls not only for a finding that the defendant was negligent but also for special findings of fact with respect to which either there was no evidence or the evidence was conflicting. It could not rightly have been ruled that the special findings requested were required as matter of law upon the evidence. The fourth request as applied to each case called for a ruling that the defendant operated the automobile negligently and also that such negligent operation was the cause of injury to the plaintiff. As already pointed out, it could not have been ruled as matter of law that the defendant was negligent in the operation of the automobile. Moreover, there was no evidence, and clearly it could not rightly have been ruled as matter of law, that the plaintiff in any of the cases sustained any personal injury as the result of such negligence. On this aspect of the case the evidence went no further than to show that the automobile operated by the defendant collided with an automobile in which the plaintiffs were riding. But there was no evidence, so far as the report discloses, that any of the plaintiffs was hurt as a result of the collision. Burke v. Jordan Marsh Co., 313 Mass. 119, 120, 46 N.E.2d 519. If ‘no injury was caused * * * to the plaintiff; if he suffered no damage whatever from the defendant's negligence, then he would not be entitled to recover. Although there has been negligence in the performance of a legal duty, yet it is only those who have suffered damage therefrom that may maintain an action therefor. * * * In cases of negligence,...