Barnett v. Loud

243 Mass. 510 | Mass. | 1923

Rugg, C.J.

This is an action of tort. There are four counts in the declaration; two for libel, one for malicious prosecution, and one for slander, each being for a distinct and independent cause of action. At the first trial before a jury, a separate verdict for substantial damages was returned for the plaintiff on each count. The defendant filed a motion for a new trial, alleging -several grounds, one of which was that the verdict as to each count and as a whole was against the evidence and the weight of the evidence. After argument. upon the motion, the judge took the matter under advisement and on February 20, 1919, filed an order which purported to set aside the verdicts.

The plaintiff filed the present bill of exceptions seasonably and it was allowed on October 24, 1919. Three days later the plaintiff filed a petition to vacate the allowance of his exceptions. That petition was denied on November 1, 1919, and the plaintiff, having seasonably excepted, filed on November 18, 1919, his exceptions to that denial. This was his second bill of exceptions. On May 17, 1920, this second bill of exceptions, never having been allowed, was dismissed under Rule 54 of the Superior Court (1915). A second trial on the merits resulted in verdicts for the defendant on each of the four counts of the declaration on May 25, 1920. On June 1, 1920, the plaintiff filed exceptions concerning that trial and on October 19, 1920, his substitute exceptions on this matter were allowed. On November 6, 1920, the plaintiff filed exceptions to that allowance of his substitute exceptions and on November 5, 1921, by order of the Superior Court, those exceptions were disallowed (see in this connection Barnett, petitioner, 240 Mass. 228), and on the same day the exceptions of June 1, 1920, were dismissed for lack of prosecution and because intended for delay. The docket entry describes that as the “First bill of exceptions,” but an examination of the original papers shows that the exceptions of June 1, 1920, were meant. From these orders of November 5, 1921, the plaintiff appealed on November 9, 1921. At the same time he claimed exceptions, which were filed on November 22,1921, and which, never having been allowed, were dismissed under Rule 54 of the Superior Court (1915) on March 27, 1922. Hearing was had on March 20, 1922, on motion to overrule the plaintiff’s first bill of exceptions allowed on October 24, 1919, and the matter was taken under advisement by the Superior Court judge who, on April 12, 1922, ordered that bill of exceptions to be overruled under G. L. c. 231, § 133. In the meantime the plaintiff, on March 30, 1922, while the motion was pending before the Superior Court after hearing but before decision, entered this bill of exceptions in this court. This matter was called to the attention of the Superior Court judge, who, on May 1, 1922, vacated his order of April 12, 1922, and entered an order nunc pro tune overruling the plaintiff’s first, being the present, bill of exceptions under G. L. c. 231, § 133, as of March 20, 1922, the date when the motion was heard and taken under advisement.

The plaintiff’s conduct in entering the exceptions in this court while the motion to dismiss or overrule them was being considered by the Superior Court after a hearing, without notice to the judge before whom the matter was pending, is not dealt with here. The plaintiff has had no hearing on that subject. The present case is considered on its merits apart from that.

The plaintiff could not rightly have entered his first, being the present, bill of exceptions allowed on October 24, 1919, in this court at that time and it could not have been considered by this court in any way (not having been reported by the presiding judge), because the case was not then ripe for judgment. The errors of law there alleged related to an interlocutory matter. Weil v. Boston Elevated Railway, 216 Mass. 545. Farris v. St. Paul’s Baptist Church, 216 Mass. 570. The only course comformable to our practice was for the plaintiff to wait until the case was ripe for judgment and then enter all exceptions, whether to interlocutory or final rulings or orders, in this court for disposition. Brooks v. Shaw, 197 Mass. 376. Richardson v. Greenhood, 225 Mass. 608. The plaintiff could only let that bill of exceptions lie on the files of the Superior Court until the arrival of the appropriate time for entry in this court.

It appears from this narration of the dates of occurrence of the pertinent facts that the case was not ripe for judgment on the record until March 27, 1922, when the plaintiff’s exceptions filed November 22, 1921, but never allowed, were dismissed under the rule. Up to that date, there had never been a time when the plaintiff rightly could have entered the present bill of exceptions

a in this court. Whatever may be said about the plaintiff’s conduct respecting his other exceptions and appeals, he still had his rights under this first bill of exceptions. His unwarrantable delay in having the bill of exceptions of November 22, 1921, called to the attention of the court and allowed, and their consequent dismissal, could not under the law permit the court to dismiss this bill of exceptions as of a date earlier than it could have been entered in this court. The statute and decisions do not allow this on the facts disclosed in the present record. G. L. c. 231, § 133.

The entry of the first bill of exceptions was made in this court on the third day after it was permissible. That cannot be said not to have been made within the time permitted in the absence of a specific finding to that effect. Griffin v. Griffin, 222 Mass. 218. The entry of the order nunc fro tune was ineffectual. Perkins v. Perkins, 225 Mass. 392.

The only question raised on the merits of the bill of exceptions relates to the setting aside of the verdict or verdicts at the first jury trial. The general rule is that a motion for a new trial is addressed to the sound discretion of the trial judge, to the exercise of which no exception lies. Only in rare instances can it be said that there has. been an abuse of discretion. Ryan v. Hickey, 240 Mass. 46, and cases collected at page 48. Hallett v. Jordan Marsh Co. 240 Mass. 110.

The only difficulty in the case at bar arises from the form of the order in which the verdicts were set aside. It was in these words: “By agreement of counsel and order of the court separate verdicts were returned on each of the four counts of the plaintiff’s declaration. The four verdicts must be treated as one verdict. The verdict is against the evidence and the weight of the evidence and is set aside and a new trial is ordered.” It was the common law conception of a verdict that it was single and indivisible. It still is not uncommon to refer to a verdict as an entity which must stand or fall as a whole. Simmons v. Fish, 210 Mass. 563, 572. The modern practice has widely extended the joining of several counts for distinct causes of action in civil matters in a single action and for different crimes of the same general nature in a single indictment in criminal matters. G. L. c. 231, § 7, cl. 5. Commonwealth v. Rosenthal, 211 Mass. 50. Commonwealth v. Dow, 217 Mass. 473. Lebowitch v. Commonwealth, 235 Mass. 357, 363. Commonwealth v. Szczepanek, 235 Mass. 411. It is therefore as matter of law possible to set aside verdicts as to one or more counts and leave undisturbed verdicts as to other counts. Verdict as to one count may be vitiated for some error and stand as to-other counts. Commonwealth v. Nickerson, 5 Allen, 518, 529. Pelton v. Nichols, 180 Mass. 245. Commonwealth v. Dyer, ante, 472. Nevertheless, verdicts upon different counts have recently been termed “different parts of a verdict.” ICnowlton, C. J., in Lufkin v. Hitchcock, 194 Mass. 231, 233. Commonwealth v. Haskins, 128 Mass. 60. See Reilly v. Boston Elevated Railway, 206 Mass. 53, 55.

The words in the order setting aside the verdict that “thefour verdicts must be treated as one verdict” do not constitute a ruling of law that it was impossible to treat them otherwise than as a single verdict. These words may be regarded as referring to the verdict in this general way of being in one aspect single but having the several aspects referable to each count. As matter of construction they express in concise form the opinion of the judge that the verdicts upon the several counts all stood on the same footing so far as concerned their freedom from error and therefore on motion for new trial did not require separate treatment but would be grouped as all being tainted with the same infirmity. The evidence, so far as set out in the record, gives color to that interpretation. This well may have been thought to be a case where the evidence for the plaintiff on the one side or that of the defendant on the other made the several causes of action so interwoven that the new trial should be had as to all the counts. Waucantuck Mills v. Magee Carpet Co. 225 Mass. 31, and cases there cited.

There is nothing in this record to show abuse of discretion by the trial judge in setting aside the verdict. Coffin v. Phenix Ins. Co. 15 Pick. 291. Edwards v. Willey, 218 Mass. 363. Berggren v. Mutual Life Ins. Co. of New York, 231 Mass. 173. Davis v. Boston Elevated Railway, 235 Mass. 482.

Exceptions overruled.