Skudris v. Williams
| Decision Date | 12 September 1934 |
| Citation | 287 Mass. 568 |
| Parties | PETER P. SKUDRIS, JR., administrator, v. HERBERT WILLIAMS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 6, 1934.
Present: RUGG, C.
J., CROSBY, PIERCE WAIT, & LUMMUS, JJ.
Practice, Civil New trial.
No abuse of discretion appeared in the denial of a motion for a new trial of an action heard in a municipal court where it appeared that no requests for rulings of law with respect to the motion were made by the moving party, although, in the record before this court of the trial and the hearing on the motion there appeared remarks attributed to the trial judge which might well have been less peremptory in their phrasing, more tactful in expression, less blunt and self confident in manner.
At the hearing of an action by an administrator for conscious suffering and the death of his intestate resulting from negligence of the defendant in operating an automobile, one of the plaintiff's contentions was that the defendant, while so operating, was under the influence of intoxicating liquor which contributed to his negligence. After a finding for the defendant, the plaintiff filed a motion for a new trial on the ground of newly discovered evidence. At the hearing of the motion three witnesses testified to the effect that the defendant was under the influence of intoxicating liquor at the time in question; and the plaintiff requested rulings that the testimony of each witness was evidence that the defendant was negligent in the operation of the automobile, "which negligence caused the injuries to and the death of the plaintiff's intestate." The rulings were refused and the motion was denied, the trial judge stating that the "testimony of these witnesses would if presented at the trial, be part only of the evidence bearing upon the question of the drunkenness and negligence of" the defendant. Held, that
(1) The rulings requested were too broad, and there was no error in their refusal;
(2) Whatever might be the meaning of the reason stated by the judge for denying the motion, no error of law nor abuse of discretion was shown in the denial.
TORT. Writ in the Municipal Court of the City of Boston dated May 23, 1933.
The action was heard in the Municipal Court by Dowd, J., who found for the defendant. Further proceedings in the action are described in the opinion.
D. M. Lyons, (E.
L. Prague with him,) for the plaintiff.
J. H. Dooley, for the defendant.
This is an action of tort to recover compensation for the conscious suffering and death of the plaintiff's intestate alleged to have been caused by the negligent operation by the defendant of an automobile on a public way. It was tried before a judge of the Municipal Court of the City of Boston. The finding was for the defendant. No report was asked concerning the trial on the merits. It appears that there was no dispute as to the fact that the plaintiff's intestate while walking upon a public way was fatally injured because of contact with an automobile driven by the defendant. The controversy related to the circumstances and cause of that contact. One contention of the plaintiff was that the defendant was under the influence of intoxicating liquor which contributed to his negligence. The case comes before us on two appeals from final orders of the Appellate Division the first being from an order denying a petition to establish a report concerning two motions for a new trial, and the second from an order dismissing a report allowed concerning a third motion for a new trial.
1. The allegations in the petition to establish a report, so far as material to the grounds of this decision, are these: The plaintiff filed two motions for a new trial. One was based on the grounds that the finding in favor of the defendant was (1) against the evidence, (2) against the law and (3) against the weight of the evidence; and the other on the ground of newly discovered evidence. There was a hearing upon these motions. One Curran at the trial on the merits had testified that he saw the accident and he gave material testimony in favor of the plaintiff. During the final argument on the merits the trial judge stated, "That man Curran was not there; he is not seen by a single witness of the accident." At the hearing on the motions three witnesses testified that Curran was present at the accident. No requests for rulings of law were filed respecting these motions for new trial. The request for a report states that the hearing on these motions was held on July 7, 1933, that on July 14, 1933, counsel were notified that both were denied and that the ground for report is this: "Contending that under the circumstances of this case, the action of the trial judge in denying the plaintiff's motions for new trial was not in the exercise of a sound judicial discretion and was conduct manifesting abuse of judicial discretion, and therefore requires a review and the affording of some relief, and raises a question of law, the plaintiff being aggrieved thereby requests a report of the same to the Appellate Division for consideration." A draft report covering twenty-one printed pages of the record was filed purporting to set out all the evidence at the trial on the merits and on the motions for new trial. Respecting that request for a report and draft report it is alleged in the petition that they were disallowed without any hearing by the trial judge in a statement that at the hearing on the motions for new trial no requests for rulings were made. The petition to establish the report was denied by the Appellate Division in an opinion to the effect that no reference to prove the truth of...
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