Pierson v. Boston Elevated R. Co.

• Decision Date: 07 March 1906
• Citation: 77 N.E. 769,191 Mass. 223
• Parties: PIERSON v. BOSTON ELEVATED RY. CO. NEW ENGLAND TRUST CO. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 223

77 N.E. 769

PIERSON v. BOSTON ELEVATED RY. CO.

NEW ENGLAND TRUST CO. v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1906

COUNSEL

Prescott F. Hall, for New England Trust Co.

Richard W. Hale and Roger D. Swaim, for petitioners.

P. H Cooney and L. F. Hyde, for respondents.

OPINION

SHELDON, J.

These were petitions under St. 1894, pp. 764, 765, c. 548, §§ 8, 9 and the acts in addition thereto, to recover compensation for damages done to an estate on Washington street, Boston, by reason of the construction and maintenance of the respondent's railway in front thereof, brought by the first-named petitioners as the owner and lessees, and by the second petitioner as the mortgagee of said estate. Mary P. Tuckerman was not a party to the petitions as first brought. At the trial in the superior court it appeared that Mary P. Tuckerman owned the estate up to June 8, 1900, on which day she conveyed it to Horatio P. Pierson in trust for herself, and on August 11, 1900, Pierson gave a mortgage of the estate to the New England Trust Company, the petitioner in the second petition. On July 29, 1899, said Mary Tuckerman had given to Alexander Kohan a lease of the upper part of the premises, and on May 31, 1900, a lease of the ground floor and basement to Hatch and Muench. The terms created by these leases were to begin on September 1, 1899 and 1900, respectively, and they were to expire on August 31, in 1904 and 1905, respectively. The lessees appeared in the first petition and filed claims therein. The New England Trust Company filed a separate petition for damages an mortgagee. The petitions were ordered to be consolidated, and were tried together.

The trial of the case was begun in November, 1904, after the case of Bates v. Boston Elevated Railway, 187 Mass. 328, 72 N.E. 1017, had been submitted to this court and argued by counsel, but before the decision of that case. It appeared that the construction of the elevated railway in front of the estate was begun on April 4, 1899. Without objection from either party, Pierson, as owner, and some of the tenants, were allowed to testify to their opinions of the value of their respective estates; and all the witnesses on both sides who testified to the amount of damages, or to the value of the premises before and after the construction of the elevated railway in front of them, did so generally and without reference to any particular date; counsel on both sides agreeing that the answer of the jury to the question what was the total damage to the estate would not differ, whatever date should be given to them as the date when the damage accrued. When the leases aforesaid were introduced in evidence, and again when the deed from Tuckerman to Pierson was brought out upon the cross-examination of Pierson, and again at the conclusion of the evidence, counsel for the respondent asked for a ruling upon the date when the damage accrued; and counsel for Pierson stated that he represented Tuckerman, and asked the court so to arrange and frame the questions for the jury and conduct the cause that a mistrial might be avoided, whatever date should afterwards be set by this court. The judge declined to make any ruling on the first two occasions, and on the third again declined to make a ruling, but informed counsel that he expected to fix the date as June 10, 1901.

Before the case was given to the jury, the judge called counsel to the bench and stated to them that is was desirable to submit the cause to the jury in such a manner as to avoid the necessity of a new trial if any ruling of the court upon the point when the right of action accrued should not be sustained in the Supreme Judicial Court, and read to counsel the following memorandum, and stated that it indicated the plan which he desired to pursue if it were assented to by counsel for all parties; and counsel for all parties assented thereto, counsel for the respondent stating, however, that he did not thereby waive any of his exceptions: 'Mary P. Tuckerman admitted as copetitioner. Agreement. Issues may be submitted to jury to assess damages as of June 10, 1901, being the date when final certificate of railroad commissioners filed in office of secretary of commonwealth and road authorized to do business. After verdict, if for petitioners, case to be reported to Supreme Judicial Court. If damages should be assessed as of any date prior to July 29, 1899, being the date of the earliest lease, then judgment to be entered in favor of petitioner Mary P. Tuckerman for the whole damages as found by the jury, and in favor of the respondent as against all other petitioners. If damages were rightly assessed as of June 10, 1901, or should be assessed as of any date subsequent to August 11, 1900, the date of the mortgage to the New England Trust Company, judgment on the verdicts.' The case was submitted to the jury accordingly, and they found that the petitioners' estate had been damaged more than it had been benefited or improved in value by reason of the location, etc., of the railway, to the amount of $8,843, and apportioned of this amount the sum of $5,975 to the petitioner Pierson or Tuckerman, $478 to the petitioner Kohan, and $2,390 to the petitioners Hatch and Muench. After the verdict, on December 23, 1904, a motion by Mary P. Tuckerman and Horatio P. Pierson to amend the record by making said Tuckerman a petitioner of record was allowed by the court.

After the verdict, the respondent declined to consent to a report on the terms indicated in the memorandum above set forth, and filed a motion for a new trial for the alleged reasons that the finding of the jury that the estate had been damaged more than it had been benefited or improved in value by reason of the location, etc., of the railway, was against the evidence and the weight of the evidence, and because the amounts found and awarded were excessive. The judge indorsed on the back of this motion: 'Denied, but new trial granted on other grounds, as stated in memorandum.' This memorandum, which was attached to the motion, was as follows: 'This case was submitted to the jury under instructions that the right to compensation for damage to the property of the petitioners accrued June 10, 1901. In view of the decision in the case of Bates v. Boston Elevated Rialway it now appears that the right accrued at a much earlier date, and that the instructions given to the jury were erroneous. At the trial certain material evidence was admitted against the objection of the respondent, which would not have been competent as to the damage sustained at the earlier date. There was a mistrial in important and material particulars. The verdict and answers of the jury to the questions submitted to them should be set aside and a new trial granted, and it is so ordered.'

The petitioners excepted to this order granting a new trial. The material evidence mentioned in this memorandum was that of the petitioners Pierson, Hatch, and Kohan to their opinions of the values of their estates and the amount of their respective damages; and no objection was made or exception saved to their right so to testify, nor was any ruling upon this question requested by counsel for the respondent at any time before verdict. The evidence was closed on the Wednesday before Thanksgiving. In the charge given on the Monday following, the court recapitulated the evidence before the jury, including the substance of the testimony so given by Person, Hatch, and Kohan as to value, and to that portion of the charge no objection was made or exception saved. The New England Trust Company, the petitioner in the second action, also excepted to the order granting a new trial on the further ground that no notice had been given of the filing of the motion to it or to its counsel, Mr. Hall. At the trial of the consolidated action, it was represented by Mr. Hall, its counsel. He was present throughout the trial, and at all conferences of counsel at the bench. Mr. Hale, of counsel for the other petitioners, alone opened the cause, examined the witnesses, and argued the cause to the jury without objection from and with the consent of this petitioner. Its counsel, Mr. Hall, frequently conferred with Mr. Hale in open court during the progress of the trial; but Mr. Hale had no authority to appear for this petitioner other than such as may be inferred from the facts herein stated. The only appearance entered of record for this petitioner was that of Mr. Hall. Notice of the motion for a new trial and a copy thereof were duly given to Mr. Hale, but no such notice or copy ever was given to or received by this petitioner or Mr. Hall. After the expiration of more than three days from the date of the verdict, Mr. Hall learned from Mr. Hale that such a motion had been filed. Mr. Hall received no notice from any one of the date of the first hearing upon the motion for a new trial, and so was not present at that hearing. At the second hearing upon this motion, and immediately after it had been argued by counsel for the respondent and by Mr. Hale, Mr. Hall made and thereafter insisted upon the objection that no notice of the filing of this motion had been given to him or to his client.

The petitioners have also appeared from the order of the court granting a new trial, and contend that upon the face of the record, under the statute then and now in force, the judge had no power to make this order. The statute (Rev. Laws, c 173, § 112) provides that 'the courts may, at any time before judgment, set aside the verdict in a civil action and order a new trial for any cause for which a new trial may by law be granted; but a verdict shall not be set aside except upon a motion in writing by a party to the cause, stating the reasons relied...