Parker v. Lewis J. Bird Co.

221 Mass. 422 | Mass. | 1915

Rugg, C. J.

This case comes before us on a report of questions raised on a motion for a new trial. A verdict was returned for the defendant. Thereafter, the plaintiff filed a motion in due form that the verdict be set aside, as against the evidence, and the weight of the evidence, and for the further reason “That the verdict of the jury is against the law.” This motion came on for argument before the judge of the Superior Court who presided at the jury trial, and it was argued by the counsel for the plaintiff that “a new trial should be granted for the reasons set forth in the motion, and because the plaintiff was prejudiced by some remarks of the judge” given in the charge, which he proceeded to specify. At the close of the plaintiff’s argument, the court said: “It did not think the verdict was against the evidence, that the evidence was pretty evenly balanced, that it was careful in stating the law and did not think it was against the law, that it thought this was a formal motion, but if counsel for the plaintiff felt that some remarks of the court injured the plaintiff, the court would look over the charge if counsel would furnish a transcript.” That was an oral statement. It was not a disposition of the motion. Randall v. Peerless Motor Car Co. 212 Mass. 352, 388. St. 1911, c. 501. Edwards v. Willey, 218 Mass. 363. Thereupon, as the counsel for the defendant was about to argue in opposition to the granting of the motion, the judge said that he would look over the charge and “hear counsel further at a later time.” Without notice and without argument by the defendant, at a later time the judge filed this statement respecting the motion: “After careful consideration of the matter, I am of opinion that some statements in my charge may have been prejudicial to the plaintiff and for that reason only I grant a new trial. The verdict was not in conflict with the evidence. ”

It was error for the judge to grant the motion without hearing the party in whose favor the verdict had been returned. At common law the court had power to set aside a verdict and order a new trial for any just cause, of its own motion and without request therefor. Ellis v. Ginsburg, 163 Mass. 143. McKinley v. Warren, 218 Mass. 310. It is required by R. L. c. 173, § 112, that a verdict be set aside only upon a motion in writing stating the reasons relied upon, “heard after notice to the adverse party.” This has been held in general to be a constitutional regulation of the right of a trial by jury and not an impairment of its essential characteristics. Opinion of the Justices, 207 Mass. 606. The meaning of that part of the statute which makes imperative a hearing upon the written motion has not been declared by the court. By fair implication, that part of the statute enjoins that opportunity for reasonable argument be afforded to the party against whom the decision is made. As thus interpreted, the statute does not violate the constitutional right to a trial by jury.

The portion of the charge referred to in the statement of the judge plainly was not erroneous as matter of law. It appears to have been a suggestion entirely within the power of the judge in performing the duty of enabling the jury to reach a correct conclusion on the credible evidence. Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495, 502. Plummer v. Boston Elevated Railway, 198 Mass. 499, 515. Only one unusually and acutely sensitive as to judicial propriety could have conceived it to have been possibly prejudicial. The statement on paper conveys no such impression.

It is not necessary to determine whether under any circumstances a biased or prejudicial statement by a judge in the course of a charge may be an error of law, and hence a verdict returned in accordance with it be regarded as against the law in a comprehensive sense, Loveland v. Rand, 200 Mass. 142, for the reason that neither the judge nor the parties have proceeded on that theory in the case at bar. Both parties and the judge have treated the ground here stated as outside the precise terms of the motion. The counsel for the plaintiff in arguing the motion seemingly did not undertake to include this reason among those set forth in the motion, but as something beyond those there specified. He argued that a new trial ought to be granted “for the reasons set forth in the motion and because the plaintiff was prejudiced by some remarks of the judge,” to quote the phrase of his exceptions. This evidently means something more than was alleged in the motion. The oral statement of the judge at the conclusion of the argument shows that he did not think that he had made an error of law in the charge, or that the verdict was against the law. The written statement indorsed later on the motion itself appears to conform to this orally expressed view. Taken together, they disclose the thought that the grounds set forth in the motion were not those which moved the judge to action. We treat the case for purposes of decision as it has been treated by the judge and the counsel.

A judge of the Superior Court has no power to order a new trial for a reason not expressly stated or by fair implication included within the motion. Peirson v. Boston Elevated Railway, 191 Mass. 223. James v. Boston Elevated Railway, 213 Mass. 424. Hence the verdict does not appear to have been set aside according to law.

The appeal was taken prematurely and must be dismissed. Cotter v. Nathan & Hurst Co. 211 Mass. 31.

Exceptions sustained.

Appeal dismissed.