Wasserman v. Caledonian-American Ins. Co., CALEDONIAN-AMERICAN

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 326 Mass. 518,95 N.E.2d 547
• Docket Number: CALEDONIAN-AMERICAN
• Parties: WASSERMAN v.INS. CO. et al.
• Decision Date: 01 December 1950

Page 547

95 N.E.2d 547 326 Mass. 518 WASSERMAN
v.
CALEDONIAN-AMERICAN INS. CO. et al. Supreme Judicial Court of Massachusetts, Suffolk. Argued Nov. 8, 1950.
Decided Dec. 1, 1950.

B. P. Rome, Boston, for plaintiff.

C. W. O'Brien, Boston, for defendants.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.

Page 548

WILKINS, Justice.

The holder of standard form fire insurance policies, G.L. (Ter.Ed.) c. 175, § 99, as amended, sues for damage to a heating system and adjacent premises. The judge found for the defendants, and made subsidiary findings. [326 Mass. 519] The premises were heated by an oil burner installed in the cellar. On the morning of January 3, 1947, it was discovered that the burner was operating, sending a flame in the usual way into the boiler, which was cherry red and emitting sparks. It was later learned that there was no water in the boiler. The oil burner functioned normally and as intended except for the lack of water. The excessive heat cracked the boiler and damaged the ceiling, but no sparks or fire came in contact with the ceiling.

The plaintiff took no exceptions to rulings at the trial. At the close of the evidence she presented requests for rulings, three of which the judge denied in the absence of counsel. The plaintiff did not except within three days after notice as required by Rule 72 of the Superior Court (1932). The case is here on the following questions of law by report of the judge: '1. On the facts hereinafter set forth, as a matter of law, do I have the power to report this matter to the Supreme Judicial Court? 2. If I do have the power * * * was I obliged as a matter of law to find for the plaintiff?'

The following requests were denied as 'inapplicable in view of the facts hereinbefore found'; '2. The evidence does not warrant a finding for the defendants.' '5. If a fire escapes from its natural location it becomes a fire covered by the Massachusetts standard policy and the insured is entitled to recover for damage sustained. 6. If a 'friendly' fire becomes destructive by reason of a change of conditions, it becomes a fire covered by the Massachusetts standard fire policy.'

By G.L. (Ter.Ed.) c. 231, § 111, 'A justice of * * * the superior * * * court * * * after a finding of the facts by the court, may report the case for determination by the full court. * * *' This statutory authorization extends only to the reporting of questions of law. There must have been a request or a ruling on a point sought to be reported. Scaccia v. Boston Elevated Railway, 308 Mass. 310, 314, 32 N.E.2d 253, Id., 317 Mass. 245, 251, 57 N.E.2d 761; City of Quincy v. Brooks-Skinner, Inc., 325 Mass. 406, 410, 91 N.E.2d 206. This is not a report of the denial of the [326 Mass. 520] second request which asked a ruling upon all the evidence, and, besides, there is no evidence in the report. This is not expressly a report of the rulings on the fifth and sixth requests. Those requests, however, were denied only because deemed inapplicable on the facts found. As the result will not be affected, lest the report of the substantive question become utterly nugatory, we treat it as bringing here the question whether a finding for the plaintiff was required because, contrary to the rulings, the fifth and sixth requests were not rendered immaterial by the findings.

The report contains no recital that the ultimate finding for the defendants was based solely upon the subsidiary findings. Compare Winslow Bros. & Smith Co. v. Hillsborough Mills, 319 Mass. 137, 141. The general finding imports all subsidiary findings necessary to that conclusion and not inconsistent with special findings or rulings of law. Manzi v. Carlson, 278 Mass. 267, 273, 180 N.E. 134; Weathers v. Jarvis, 294 Mass. 227, 229, 230, 200 N.E. 886; Maher v. Haycock, 301 Mass. 594, 595, 596, 18 N.E.2d 348.

In Scripture v. Lowell Mutual Fire Ins. Co., 10 Cush. 356, 359-360, 64 Mass. 356, it was said, 'If, in Austin v. Drew [6 Taunt. 436], the fire had been where it ought not to be, if, even with careless management, it had burned the building, and notwithstanding it was fire maintained only for the purpose of...