Clark v. Barringer

273 Mass. 107 | Mass. | 1930

Rugg, C.J.

This is an action at law brought and tried in the Superior Court. The cause of action is based on the contention that the defendant, an attorney at law, employed by the plaintiff as counsel to conduct for her an action in which she was plaintiff against the Boston Elevated Railway Company, failed to exercise proper skill, care and diligence in the conduct of that litigation, whereby the plaintiff was damaged. The present case was referred to an auditor. His findings were adverse to the plaintiff. The plaintiff filed what are termed "objections to auditor’s rulings.” With a single exception presently to be noted, these objections are to findings of fact made by the auditor and not to rulings of law. The plaintiff also filed a motion to recommit the case to the auditor. That was denied. The case was then tried to a jury. The verdict was for the defendant. Thereafter the plaintiff filed a motion to report the case to the Supreme Judicial Court. That was denied. Thereupon the plaintiff appealed from the denial of her motion to report.

Whether a judge of the Superior Court shall report to this court a case tried to a jury rests within his sound judicial discretion. While a judge has large discretionary power to report a case where justice requires, he cannot be compelled to make such report. The complete remedy given to parties for the correction of errors of law alleged to have occurred at a jury trial is by a bill of exceptions. Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460, 461. Brown v. Grow, 249 Mass. 495. There is nothing on this record to indicate an abuse of discretion in denying the motion to report this case. No provision is made for an appeal from a denial of such a motion as this. G. L. c. 231, § 96, as amended by St. 1928, c. 306, § 2. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133. Therefore the case is not rightly here.

It may not be inappropriate to add that a careful examination of the record and of the brief filed by the plaintiff fails to disclose any error of law. Whether the case should have been recommitted to the auditor was a matter of judicial discretion. Tobin v. Kells, 207 Mass. 304, 309, 310. Director General of Railroads v. Eastern Steamship Dines, Inc. 245 Mass. 385, 397. The single point of law set forth in the plaintiff’s “objections to auditor’s rulings” was that a report of a physician would not have been admissible in evidence if offered on behalf of the plaintiff at the trial of her action against the Boston Elevated Railway Company. That ruling was right. McKenna v. Fielding, 272 Mass. 341. Those objections touching findings of fact show no error.

Appeal dismissed.