Zwick v. Goldberg

• Decision Date: 16 September 1939
• Citation: 22 N.E.2d 661,304 Mass. 66
• Parties: ZWICK v. GOLDBERG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 66

22 N.E.2d 661

ZWICK

v.GOLDBERG et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 16, 1939.

Report from Superior Court, Suffolk County; Greenhalge, Judge.

Action by Louis A. Zwick against Abraham Goldberg and others, administrators, to recover from the estate for money alleged to have been collected and retained by intestate while he was an employee of the plaintiff. On report from the superior court which granted defendants' motion for a new trial, but denied defendants' motions to dismiss and to direct a verdict for defendants and to enter a verdict for defendants in accordance with leave reserved.

Ruling denying motion to dismiss affirmed and, in accordance with stipulation contained in report, case remanded to superior court for new trial.N. H. Kolodny, of Boston, for plaintiff.

J. C. Johnston and M. L. Sherin, both of Boston, for defendants.

RONAN, Justice.

The plaintiff seeks to recover from the estate of one Goldberg, his father-in-law, for money alleged to have been collected and retained by Goldberg while he was an employee of the plaintiff. The original defendants were the three administrators of the estate of Goldberg. One of them, Annie Zwick, was the plaintiff's wife. At the clsoe of the evidence, the defendants' motions to dismiss the action and to direct a verdict for them were denied. The jury returned a verdict for the plaintiff and leave was reserved to enter a verdict for the defendants. The defendants excepted to the refusal to enter a verdict in their favor in accordance with the leave reserved. The judge granted the defendants' motion for a new trial on the grounds that the verdict was against the evidence and the weight of the evidence. He reported to this court his rulings denying the motion, to dismiss, the motion to direct a verdict for the defendants and the motion to enter a verdict for the defendants in accordance with leave reserved, with the stipulation that if there was error in any of these three rulings, then judgment was to be entered for the defendants, otherwise there was to be a new trial.

The denial of the motion to direct a verdict for the defendants and the denial of the motion to enter a verdict for them in accordance with leave reserved are not properly before us. The power of the judge of the Superior Court to report questions of law concerning both of these motions is to be determined by G.L.(Ter.Ed.) c. 231, § 111, which requires that there must be a verdict, or a finding of the facts by the Superior Court or an agreement as to all the material facts. Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 117 N.E. 924;Comstock v. Soule, Mass., 21 N.E.2d 257. No one of these prerequisites is present in the instant case. The verdict has been entirely set aside. Nothing remains of it. The ruling setting aside the verdict is not reported and is not now open for determination. Each motion presented the same question, which was the sufficiency of the evidence to warrant its submission to the jury. That question ceased to be a live issue when the verdict was set aside. Moreover, the evidence at the second trial may not be the same as that presented at the first trial. In these circumstances neither motion could furnish an adequate basis for a report to this court. Nagle v. Driver, 256 Mass. 537, 152 N.E. 740;Paulino v. Concord, 259 Mass. 142, 155 N.E. 870;Pillsbury Flour Mills Co. v. Bresky, 263 Mass. 145, 160 N.E. 447. The case is distinguishable from cases in which verdicts have been set aside only as to certain issues, Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, Ann.Cas.1912D, 588;Mathewson v. Colpitts, 284 Mass. 581, 188 N.E. 601, or where action on the motion for a new trial has been held in abeyance until the determination of certain questions of law by this court, Fuller v. Andrew, 230 Mass. 139, 119 N.E. 694;Keough v. E. M. Loew's Inc., Mass., 21 N.E.2d 971, or where the verdict has remained undisturbed pending a decision upon the question whether a verdict for the defendant ought to have been entered. Moore v. Amesbury, 268 Mass. 462, 167 N.E. 663;Potter v. Dunphy, Mass., 8 N.E.2d 785.

The report states that the judge was of opinion that his decision denying the motion to dismiss ought to be determined by this court before any further proceedings are had in the trial court. This was an interlocutory matter, unaffected by the setting aside of the verdict and which the judge in his discretion was authorized by G.L.(Ter.Ed.) c. 231, § 111, to report before other proceedings were had. It was a matter upon which a ruling might be decisive of the case. United Drug Co. v. Cordley & Hayes, 239 Mass. 334, 132 N.E. 56;Sterling v. Frederick Leyland & Co. Ltd., 242 Mass. 8, 136 N.E. 60;Summers v. Boston Safe Deposit & Trust Co., Mass., 16 N.E.2d 670.

The grounds of this motion ought to have been shown by the record. We assume from the argument that its basis was that one of the defendants was the wife of the plaintiff. She was one of the original defendants. Before the close of the trial her resignation as one of the administrators had been accepted by the Probate Court. The motion to dismiss was filed at the close of the evidence and apparently after the plaintiff had filed a discontinuance as to his wife.

A motion to dismiss must be based upon matters appearing on the face of the record. Adams v. Richardson, 268 Mass. 78, 167 N.E. 254;Summers v. Boston Safe Deposit & Trust Co., Mass., 16 N.E.2d 670;Cochrane v. Cochrane, Mass., 22 N.E.2d 6. We need not decide whether the marital relationship between the plaintiff and one of the defendants did in fact appear from the record since we prefer to treat the motion, as the parties apparently did, as raising the question whether the action should be dismissed on this account. Brotkin v. Feinberg, 265 Mass. 295, 164 N.E. 85;Charles I. Hosmer, Inc. v. Commonwealth, Mass., 19 N.E.2d 800. Similar motions in actions of tort between husband and wife have been allowed. Lubowitz v. Taines, 293 Mass. 39, 198 N.E. 320;Johnson v. Johnson, Mass., 21 N.E.2d 224.

It is a principle of the common law that one spouse cannot sue the other in an action at law. Golder v. Golder, 235 Mass. 261, 126 N.E. 382;Giles v. Giles, 279 Mass. 284, 181 N.E. 176. We assume that this principle applies where one spouse is acting only in a representative capacity. It has been held that a party to an action in his representative capacity is a different person in law from the same individual in his private capacity. McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 107 N.E. 439;Eaton v. Walker, 244 Mass. 23, 138 N.E. 798;Cook v. Howe, 280 Mass. 325, 182 N.E. 581. We need not examine the grounds upon which these decisions rest because none of them was an action between husband and wife. It was said in Atkins v. Atkins, 195 Mass. 124, 129, 80 N.E. 806, 807, 11 L.R.A.,N.S., 273, 122 Am.St.Rep. 221, where a husband as trustee under a will brought a bill in equity to compel his wife to reconvey property she had bought from the trustee and for which she had declined to pay the purchase price, that ‘The fact that [the plaintiff] was acting in a representative capacity creates no exception, for he was none the less [the defendant's] husband because he happened at the same time to be trustee for a stranger.’ Freitag v. Bersano, 123 N.J.Eq. 515, 198 A. 845.

The plaintiff's cause of action is not based upon any contract made by him with the defendants. His claim is against the estate on account of the alleged conduct of the intestate. His claim is single, not joint and several, and in an action at law to enforce it all the representatives of the estate should be made parties defendant, as the powers and duties of the administrators are joint. Cobb v. Kempton, 154 Mass. 266, 28 N.E. 264;Talbot v. Bush, 251 Mass. 27, 146 N.E. 223. The validity of the plaintiff's cause of action does not depend upon the identity of the administrators, but the enforcement of his claim by an action at law might be barred, if the common law principle of unity between husband and wife is to be applied. Eastman v. Wright, 6 Pick. 316;Bemis v. Converse, 246 Mass. 131, 140 N.E. 686.

The plaintiff in an action at law, where there is no counterclaim and where there has been no reference to an auditor, has the right at any time before trial to discontinue the action, Marsch v. Southern New England Railroad, 235 Mass. 304, 126 N.E. 519;Alpert v. Mercury Publishing Co., 272 Mass. 39, 172 N.E. 221, or to discontinue against some of the parties defendant. Matheson v. O'Kane, 211 Mass. 91, 97 N.E. 638, 39 L.R.A.,N.S., 475, Ann.Cas.1913B, 267; Jacobs v. Brown, 259 Mass. 232,156 N.W. 26. When the resignation of the plaintiff's...