305 Mass. 274 | Mass. | 1940
This is an action of tort to recover damages alleged to have been caused by the gross negligence of the defendant. After a trial at which the report of an auditor, whose findings of facts were not to be final, and the testimony of witnesses were introduced, the jury found for the defendant. Before the report was read to the jury, the plaintiff moved that the findings of subsidiary facts, contained in “paragraphs five and six of Auditor’s Report,” be struck out for the reason that they were not findings of fact “but merely the reasoning ideas of the Auditor.” After the report was read to the jury, the plaintiff renewed his motion. The denial of these motions, subject to the plaintiff’s .exceptions, presents the only question.
G. L. (Ter. Ed.) c. 221, § 56, provides, in so far as material, that “. . . the court at the trial shall exclude any finding of fact which appears in the report [of the auditor)] to be based upon an erroneous opinion of law, or upon inadmissible evidence.” Questions arising under the quoted
It is unnecessary to recite in detail the subsidiary facts found by the auditor. In the main they constitute specific findings of facts material to the issue, and, in several instances, the reasons of the auditor for the findings. The evidence before the auditor is not reported; it therefore cannot be said that any of his findings were based upon inadmissible evidence, and it does not appear that they were based upon an erroneous opinion of law. G. L. (Ter. Ed.) c. 221, § 56.
Furthermore, the motions were addressed to both paragraphs as an entirety. Even if we assume that some portions were objectionable and might have been the basis of a motion to recommit, and if we assume, as we do not, that some parts may have come within the provisions of said § 56, nevertheless the judge could not be required to separate the good from the bad. See Gardiner v. Brookline, 181 Mass. 162, 163; Smith v. Duncan, 181 Mass. 435; Claffey v. Fenelon, 263 Mass. 427, 434.
Exceptions overruled.