Weiner v. Pictorial Paper Package Corp.

• Decision Date: 13 April 1939
• Citation: 20 N.E.2d 458,303 Mass. 123
• Parties: WEINER v. PICTORIAL PAPER PACKAGE CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 123

20 N.E.2d 458

WEINER

v.PICTORIAL PAPER PACKAGE CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

April 13, 1939.

Appeal from Municipal Court of Boston, Appellate Division; James H.Devlin, Judge.

Action by Barnard H. Weiner against Pictorial Paper Package Corporation for breach of an employment contract. A judge in the district court found generally for plaintiff and on a report to the appellate division, a new trial was ordered. From the order granting a new trial and from an order of the appellate division dismissing a report taken following the second trial the plaintiff appeals.

Orders reversed and judgment ordered entered for plaintiff on finding made at first trial.

FIELD, C. J., and DONAHUE and COX, JJ., dissenting in part.J. E. Hannigan and J. J. Tutun, both of Boston, for appellant.

J. J. Mulcahy, of Boston, for appellee.

LUMMUS, Justice.

This is an action of contract upon an alleged agreement to employ the plaintiff. A judge in a district court found generally for the plaintiff, without resting his finding expressly on any one count, and assessed damages in the sum of $15,250. It is evident, however, that the damages were assessed upon the second count, for breach of a contract to give the plaintiff permanent employment, and not upon the first count for breach of a contract to employ the plaintiff for six months. On a report to the Appellate Division, claimed by the defendant, a new trial was ordered on February 2, 1937. Two days later the plaintiff claimed an appeal to this court.

A second trial was had. It resulted in a finding for the plaintiff on the first count only, with damages of $1,125. A report was taken by the plaintiff to the Appellate Division, based on alleged errors at the second trial prejudicial to the plaintiff, but was dismissed by that tribunal on February 3, 1938. That dismissal constituted the final decision of the Appellate Division. A second appeal to this court was duly taken within five days thereafter, as the docket entries show. Since the final decision was the last action of the Appellate Division, the only action within five days before the appeal, and the only appealable action of that division, as will appear, we infer that that appeal was from that final decision. But the plaintiff caused to be printed and presented to us a record showing only the proceedings at the first trial and the action of the Appellate Division upon the first report.

The contention of the plaintiff is, that there was no error at the first trial; that he is entitled to judgment upon the finding made at that trial; that the Appellate Division erred in ordering a new trial; and that all subsequent proceedings arise out of and are vitiated by that error.

The relevant statutes are these. In a district court ‘any party * * * aggrieved by any ruling on a matter of law by a single justice, may, as of right, have the ruling reported for determination by the appellate division when the cause is otherwise ripe for judgment, or sooner by consent of the justice hearing the same. * * * If the appellate division shall decide that there has been prejudicial error in the ruling complained of, it may reverse, vacate or modify the same or order a new trial in whole or part; otherwise it shall dismiss the report* * *.’ G.L.(Ter.Ed.) c. 231, § 108. ‘An appeal to the supreme judicial court shall lie from the final decision of the appellate division of any district court. * * * Claims of appeal shall be filed in the office of the clerk of the district court within five days after notice of the decision of the appellate division. The appeal shall not remove the cause, but only the question or questions to be determined. * * * ’ Section 109.

1. The action of the Appellate Division in ordering a new trial was not a ‘final decision’ from which an appeal could have been claimed and entered at once in this court. So much is settled beyond dispute. Real Property Co. Inc. v. Pitt, 230 Mass. 526, 120 N.E. 141;Hall Publishing Co. v. MacLaughlin, 230 Mass. 534, 120 N.E. 69;Matson v. Sbrega, 250 Mass. 138, 145 N.E. 35;Demers v. Scaramella, 252 Mass. 430, 147 N.E. 894;Endicott Johnson Corp. v. Hurwitz, 284 Mass. 378, 187 N.E. 759;Cunniff v. Cleaves, 288 Mass. 325, 192 N.E. 830;Hammond v. Boston Terminal Co. Mass., 4 N.E.2d 328;Gill v. Stretton, Mass., 10 N.E.2d 185;Robinson v. Wm. Brown & Sons Co. Mass., 17 N.E.2d 153.

Beyond that point we find conflicting statements in the reported cases. There are intimations that an appeal may be taken from the interlocutory decision of an Appellate Division ordering a new trial, although such an appeal cannot be entered in this court until the new trial has been had, a final decision of the Appellate Division obtained, and an appeal from that final decision taken. Beacon Tool & Machinery Co. v. National Products Manuf. Co. 252 Mass. 88, 91, 147 N.E. 572;Stafford v. Commonwealth Co. 263 Mass. 240, 160 N.E. 820. Apparently upon the same theory that an interlocutory decision by an appellate division is appealable, in Daniels v. Cohen, 249 Mass. 362, 363, 364, 365, 144 N.E. 237, where there was no appeal from a former decision of an appellate division remanding the case after a finding for the plaintiff, for a new trial on the question of damages only, it was said that the ruling of the Appellate Division ‘became the law of the case,’ and that ‘questions arising at the first hearing before the appellate division are not before us' on appeal from the final decision of the Appellate Division.

On the other hand, it has been said, in what we think is strict conformity to the statute, that it is a ‘final decision’ from which ‘alone appeal lies to this court.’ Real Property Co. Inc. v. Pitt, 230 Mass. 526, 529, 120 N.E. 141, 142;Hall v. MacLaughlin, 230 Mass. 534, 536, 120 N.E. 69;Patterson v. Ciborowski, 277 Mass. 260, 264179 N.E. 161;Endicott Johnson Corp. v. Hurwitz, 284 Mass. 378, 380, 187 N.E. 759;Cunniff v. Cleaves, 288 Mass. 325, 192 N.E. 830;B. M. C. Durfee Trust Co. v. Turner, Mass., 12 N.E.2d 847;Robinson v. Wm. Brown & Sons Co. Mass., 17 N.E.2d 153. Any intimations in reported cases to the contrary, countenancing a right of appeal from a decision other than a ‘final decision,’ cannot be approved. In the present case the appeal claimed from the decision of the Appellate Division ordering a new trial was unauthorized by law and of no effect.

It was also unnecessary. An appeal from the final decision of the Appellate Division, made after the new trial, would bring here for review both the first and the second decisions of the Appellate Division, no matter what were the questions of law raised by the second report to the Appellate Division. It is provided that ‘the appeal shall not remove the cause, but only the question or questions to be determined’ (G.L.(Ter.Ed.) c. 231, § 109), and held that the effect of the appeal is only to bring before this court ‘rulings of law made by the trial judge and reported by him and the action of the Appellate Division thereon.’ Moskow v. Fine, 292 Mass. 233, 235, 198 N.E. 150, 152;Hammond v. Boston Terminal Co., Mass., 4 N.E.2d 328;Adamaitis v. Metropolitan Life Ins. Co., Mass., 3 N.E.2d 833;Magrath v. Sheehan, Mass., 5 N.E.2d 547, 108 A.L.R. 1223;Coleman v. Wallace, Mass., 13 N.E.2d 379;Santosuosso v. Della Russo, Mass., 15 N.E.2d 190;Palma v. Racz, Mass., 19 N.E.2d 8. The purpose of limiting the right of appeal to final decisions, under the statute in question as well as under earlier Federal statutes, was to save the expense and delay of repeated appeals in the same case, not to render interlocutory or nonfinal decisions of the tribunal appealed from exempt from review. Forgay v. Conrad, 6 How. 201, 205, 12 L.Ed. 404;Smith v. Vulcan Iron Works, 165 U.S. 518, 524, 17 S.Ct. 407, 41 L.Ed. 810;Spalding v. Mason, 161 U.S. 375, 381, 16 S.Ct. 592, 40 L.Ed. 738;Panama Railroad v. Napier Shipping Co. 166 U.S. 280, 284, 17 S.Ct. 572, 41 L.Ed. 1004;Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 458, 55 S.Ct. 475, 79 L.Ed. 989;Leonardi v. Chase National Bank, 2 Cir., 81 F.2d 19, 20;A. & R. Realty Co. v. Northwestern Mutual Life Ins. Co., 8 Cir., 95 F.2d 703, 707. The right of the Supreme Court of the United States to review the action of the highest court of a State upon Federal questions is still restricted likewise to the ‘final judgment or decree.’ U.S.C.Title 28, § 344, 28 U.S.C.A. § 344. ‘The rule which excludes the right to review questions arising in a cause depending in a state court until a final judgment is rendered by such court involves as a necessary correlative the power and the duty of this court when a final judgment in form is rendered and the cause is brought here for review, to consider and pass upon all the Federal controversies in the cause, irrespective of how far it may be that by the state law such questions were concluded during the litigation, and before a final judgment susceptible of review here was rendered.’ Louisiana Navigation Co. Ltd. v. Oyster Commission of Louisiana, 226 U.S. 99, 102, 33 S.Ct. 78, 80, 57 L.Ed. 138;Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 256, 257, 37 S.Ct. 295, 61 L.Ed. 702;Georgia Railway & Power Co. v. Decatur, 262 U.S. 432, 43 S.Ct. 613, 67 L.Ed. 1065;Davis v. O'Hara, 266 U.S. 314, 321, 45 S.Ct. 104, 69 L.Ed. 303;Gant v. Oklahoma City, 289 U.S. 98, 100, 53 S.Ct. 530, 77 L.Ed. 1058. See also Perkins v. Fourniquet, 6 How. 206, 12 L.Ed. 406;Gibbons v. Gibbons, Mass., 4 N.E.2d 1019, for the rule in appeals in equity.

Even though an appellant may voluntarily so restrict the scope of his appeal as not to reach an earlier interlocutory decision of an appellate division (Buchannan v. Meisner, 279 Mass. 457, 181 N.E. 742;Henry L. Sawyer Co. v. Boyajian, Mass., 5 N.E.2d 348) the present appellant did not do so. The first decision of the Appellate Division, finding error in the first trial and ordering a new trial, may have become the law...