Scaccia v. Boston Elevated R. Co.

• Citation: 317 Mass. 245,57 N.E.2d 761
• Parties: CONSTANCE SCACCIA v. BOSTON ELEVATED RAILWAY COMPANY.
• Decision Date: 08 November 1944
• Court: United States State Supreme Judicial Court of Massachusetts

317 Mass. 245

57 N.E.2d 761

CONSTANCE SCACCIA v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk. February 8,

November 8, 1944

Present: FIELD, C.

J., LUMMUS, DOLAN & RONAN, JJ.

Practice, Civil Report; Case stated; Agreed statement of facts; Inferences Stipulation; Requests, rulings and instructions. Supreme Judicial Court, Jurisdiction. Negligence, Bus, Slippery substance. Words, "After a finding of the facts by the court."

A stipulation in an action at law that this court might draw inferences of fact from an "agreed statement of facts" "submitted as evidence," not constituting a case stated, was an ineffective attempt to enlarge the power of this court, which was confined to determining whether inferences drawn therefrom by the trial judge were unwarranted as matter of law.

In an action for negligence heard without a jury, in which the judge found generally for the defendant without making any finding as to negligence, a denial of a request by the plaintiff for a ruling that the evidence warranted a finding in his favor was in effect a ruling that the evidence failed to raise a question of fact as to negligence.

A ruling of law, made after hearing of an action on the merits without a jury, in effect that the evidence did not warrant a finding for the plaintiff, was not "an interlocutory finding or order" within G. L.

(Ter. Ed.) c. 231, Section 111. The phrase, "where there is agreement as to all the material facts" in G.

L. (Ter. Ed.) c. 231, Section 111, means a case stated.

An action heard in the Superior Court by a judge without a jury solely upon an "agreed statement of facts" "submitted as evidence," with a stipulation that the trial judge and this court might draw inferences of fact from the "agreed statement," was not heard upon a case stated. The words, "after a finding of the facts by the court" in R. L. c. 173,

Section 105, and in G. L. and G. L. (Ter. Ed.) c. 231, Section 111, have the same meaning as the words "after . . . decision by the court" in

Pub. Sts. c.

153, Section 6, and the words "after the finding upon the facts" in St. 1878, c. 231, Section 1. A report of an action heard without a jury was authorized by G. L. (Ter.

Ed.) c. 231, Section 111, where the trial judge denied a request for a ruling that the evidence warranted a finding for the plaintiff and made a general finding for the defendant without making any other findings; the general finding was a sufficient "finding of the facts by the court" within the statute.

The facts, that a "one-man" motor bus had remained, without passengers in it, for one or two minutes at least at a terminus of the line, and that during a trip from such terminus one of three passengers in the bus, when leaving it, slipped and fell on a banana peel "four inches long, all black, all pressed down, dirty, covered with sand and gravel, dry, and gritty looking," which had been on the floor in the aisle when he boarded the bus and had remained there during the nine minutes he was on it, warranted an inference of negligence of the proprietor of the bus toward the passenger in failing to discover and remove the peel before the passenger's fall.

TORT. Writ in the Superior Court dated July 17, 1936. After the decision by this court reported in 308 Mass. 310 , the action was heard without a jury by Williams, J., who reported it. Material portions of the report were as follows: "The plaintiff's written motion that the finding for the defendant heretofore entered be set aside and the case stand for further hearing was duly heard and allowed. Both parties then stipulated that if on the following so called agreed statement of facts submitted as evidence, and any inferences which I might draw therefrom, the plaintiff's written request for a ruling that the evidence warranted a finding for the plaintiff, should be allowed, I should find for the plaintiff in the sum of $750. But if as a matter of law said request for ruling should be denied, I should find for the defendant. . . . [Then followed the `agreed statement of facts.'] I denied the plaintiff's said request for ruling and found for the defendant. To such denial of the plaintiff's request for a ruling and to the ruling I made, the plaintiff duly excepted. I now report the case for determination of the question whether on this so called agreed statement of facts, and any inferences which might be drawn from them, said request for ruling should have been allowed. If the Supreme Judicial Court is of opinion that said request should have been allowed, judgment is to be entered for the plaintiff in the amount of the stipulated damages. Otherwise, judgment is to be entered for the defendant. It is agreed and stipulated that the Supreme Judicial Court may draw from the agreed facts any inferences that might have been drawn therefrom at a trial."

E. J. Donlan, for the plaintiff, submitted a brief. S. P. Sears, for the defendant.

LUMMUS, J. After the decision in Scaccia v. Boston Elevated Railway, 308 Mass. 310, this action of tort for personal injuries resulting from slipping on a banana peel which was on the floor of a motor bus operated by the defendant in which the plaintiff was a passenger, was tried before a judge of the Superior Court, sitting without jury, upon an "agreed statement of facts" submitted as evidence, from which the judge could draw inferences of fact.

At some stage of the case the parties stipulated, as appears by the report made by the judge after his decision, that this court as well as the Superior Court might draw inferences of fact from the "agreed statement of facts." That stipulation, if effective, would produce a result much like that of a case stated. United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105 , 108, 109. Keefe v. Johnson, 304 Mass. 572 . Galante v. Brockton,

305 Mass. 480 . Howell v. First of Boston International Corp. 309 Mass. 194 , 196. Lamereaux v. Tula, 312 Mass. 359 , 361. Hanifin v. C & R Construction Co. 313 Mass. 651 , 661. Harsha v. Bowles, 314 Mass. 738 . But unless the "agreed statement of facts" was technically a case stated, the statute (G. L. [Ter. Ed.] c. 231, Section 126) empowering this court as well as other courts to draw inferences of fact from a case stated unless the parties expressly withhold that power (Petros v. Superintendent of Buildings of Lynn, 306 Mass. 368 , 369) has no application. Frati v. Jannini, 226 Mass. 430, 432. Atlantic Maritime Co. v. Gloucester, 228 Mass. 519 , 523. The parties by stipulation could not enlarge our statutory authority. Jones v. Clark, 272 Mass. 146 . If the "agreed statement of facts" was not a case stated, the Superior Court could draw inferences from it as it could from other evidence, but we could review those inferences only to the extent of seeing whether they were unwarranted as matter of law. Commercial Credit Corp. v. Commonwealth Mortgage & Loan Co. Inc. 276 Mass. 335 , 340. Assessors of Boston v. Garland School of Home Making, 296 Mass. 378 , 383. Cook v. Farm Service Stores, Inc. 301 Mass. 564 , 568. Pequod Realty Corp. v. Jeffries, 314 Mass. 713 , 716.

The judge denied the plaintiff's request for a ruling that the evidence, which consisted entirely of the agreed statement of facts, warranted a finding for the plaintiff. He found for the defendant, evidently on the ground that the evidence did not warrant a finding that the defendant was negligent. Rummel v. Peters, 314 Mass. 504 , 517. He made no findings of fact as to negligence of the defendant, but ruled in effect that the evidence failed to raise a question of fact. He then reported the case for a determination of the correctness of his ruling. At the threshold lies the question whether he had authority to report the case.

The authority of a judge of the Superior Court, as distinguished from a single justice of this court (Liggett Drug Co. Inc. v. License Commissioners of North Adams, 296 Mass. 41 , 44), to report a civil action at law depends wholly upon G. L. (Ter. Ed.) c. 231, Section 111, which authorizes a report in only three instances, which will now be stated.

1. "An interlocutory finding or order." This provision originated in St. 1900, c. 311. Plainly the ruling in question, made during the trial of the merits, was not interlocutory. Gulesian v. Richardson, 306 Mass. 184 . See also National Development Co. v. Gray, 315 Mass. 127 .

2. "Where there is agreement as to all the material facts." These words are satisfied by nothing short of a case stated. Moore v. Election Commissioners of Cambridge, 309 Mass. 303 , 305. Scaccia v. Boston Elevated Railway, 308 Mass. 310 , 311. Where there is a case stated, the Superior Court, under Section 111, may report the case even "without making any decision thereon." This provision originated in St. 1917, c. 345.

A statement of agreed facts is often construed as a case stated although called by some possibly ambiguous name like "agreed facts" or "agreed statement of facts." But in the present case the parties were at some pains to point out that their agreement was merely "submitted as evidence" and was not a definitive statement of the facts. Frati v. Jannini, 226 Mass. 430. Atlantic Maritime Co. v. Gloucester, 228 Mass. 519 . Jones v Le May-Lieb Corp. 301 Mass. 133 . Scaccia v. Boston Elevated Railway, 308 Mass. 310. Ray, petitioner, 314 Mass. 195 . Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 715. Cerwonka v. Saugus, 316 Mass. 152 . Compare McNulty v. Boston, 304 Mass. 305 , 306, 307. We think that the "agreed statement of facts" was not a case stated, although, equally with a case stated (Untersee v. Untersee, 299 Mass. 417 , 420; Keljikian v. Star Brewing Co. 303 Mass. 53 , 60, 61), it became part of the record. ...