Winston v. Ibanez

• Decision Date: 10 September 1914
• Citation: Winston v. Ibanez, 218 Mass. 469, 106 N.E. 141 (Mass. 1914)
• Parties: WINSTON et al. v. IBANEZ.
• Court: Supreme Judicial Court of Massachusetts

218 Mass. 469

106 N.E. 141

WINSTON et al. v. IBANEZ.

Supreme Judicial Court of Massachusetts, Berkshire.

September 10, 1914

SYLLABUS

This was a petition to establish exceptions.The original action was brought by Ibanez against James O. Winson and three others alleged in the writ to be doing business as Winston & Co. to recover for personal injuries to Ibanez who alleged that the defendants were copartners.In the superior court before John H. Hardy, J., there was a verdict for $1,700 for Ibanez.In the original action defendants in their answer set up payment to the plaintiff and a release.Following the judge's charge defendants took exceptions following which the presiding judge remarked:

'Of course I look upon such exceptions as an argument to the jury and made for the purpose of impressing the jury' to which remark the defendants excepted.

The exceptions as prepared by counsel were returned by the court with an indorsement modifying them in so far as they purported to state what took place when defendants excepted to the criticism of the presiding judge.

On defendants' petition to establishthe bill of exceptions without the modification, a commissioner was appointed and on his report the case came before the full court.

The commissioner's report is as follows:

The commissioner appointed by the annexed order met the parties at Pittsfield in said county of Berkshire on July 10, 1914 and heard their evidence and arguments of counsel and now reports to the court his findings in relation thereto.

It appears that counsel for the petitioners, who were the defendants in the original action, duly filed a bill of exceptions, which was assented to by the counsel for the plaintiff, and which was allowed by the presiding justice of the superior court(who tried the case with a jury) but with the following additions:

1.'The jury returned a verdict for the plaintiff.'This statement was interlined and was assented to by counsel as having been unintentionally omitted.

2.The following statement was added to the bill of exceptions, to wit:

'In my opinion the 'undertone' of the defendants'counsel in taking the exceptions referred to was as audible to the jury as the criticism of the magistrate.

'With this modification

'Exceptions allowed.

'John H. Hardy,

'Justice Superior Court.'

COUNSEL

Hawkins, Ryan & Kellogg, of Pittsfield, for petitioners.

J. Arthur Baker and Irving H. Gamwell, both of Pittsfield, for respondent.

OPINION

RUGG C.J.

It was incumbent on the plaintiff to show at the trial that he was employed by the four persons named as defendants unless that fact was admitted or waived.There was sufficient evidence (which need not be recited) to require the submission of this question to the jury so far as it remained an issue, in view of the defendants' answer setting up a written contract of release given by the plaintiff to the defendants and introduced in...