Price v. Goldberg

| Mass. | Jun 7, 1922

De Courcy, J.

The plaintiff is in the business of manufacturing and selling pressing machines, and since August 1, 1916, has occupied the basement floor of a six-story building on Harrison Avenue in Boston.. The machinery operated by him includes a boring machine, nine feet three inches high, which reaches to the ceiling. On this machine is a spindle or piston which moves up and down; and in order to have it operate it was necessary to make a hole, about three inches in diameter, through the four and one half inch concrete floor of the premises directly above. There was testimony that this hole was made with the landlord’s consent, and before the defendant leased the first story of the building, where he carries on the business of selling secondhand machinery. There also was evidence that on twenty-five to thirty occasions between March 31, 1919, and the date of the writ, water, acid, sand, glass bulbs and dead mice came through said hole in the floor and upon the boring machine, necessitating repairs to the machine and causing delay in turning out the plaintiff’s output. It could be found further that the defendant was remonstrated with at the beginning, that he expressed hostile feeling toward the plaintiff, and that he threatened to drive him out of business. The case was submitted to the jury on the first count for trespass, and on the third count charging in substance an intentional injury to the plaintiff’s, property and business. Plainly there was a case for the jury; and the motion for a directed verdict was rightly denied.

Some twenty exceptions were taken by the defendant to the admission of evidence. Many of these were not argued, and are considered as waived. Others were disposed of by the judge’s instruction to the jury to eliminate the evidence from their consideration. The testimony that in July, 1916, the defendant called the plaintiff "a thief and a renegade;” that in 1918 he. referred to the plaintiff as “an old dog;” and that he remonstrated with the plaintiff for letting a colored family into his house, well might have been excluded on the ground of remoteness. But as all this was merely cumulative, and had some bearing on the question whether the defendant’s acts which are complained of were intentional and malicious and not merely accidental, we cannot say that prejudicial error is shown.

Nor was there error in the refusal of the trial judge to give the sixth and seventh requests for rulings. There was evidence that the acts of the defendant required the stopping of the boring machine for many hours; that while it was being repaired other machines had to remain idle; that production was lessened and delayed, and that orders for machines were cancelled because of the consequent failure to deliver them on time. The plaintiff’s books were in evidence. Careful instructions were given on the issue of damages, and the jury were told, as requested by the defendant, “If the plaintiff is entitled to recover, he can only recover for the direct, consequential damages re-suiting from the acts of the defendant; he cannot recover for remote, speculative or contingent consequences.” We find no reversible error in the conduct of the trial.

Exceptions overruled.