This is an action of tort in eight counts for personal injuries alleged to have been caused to the plaintiff while on land owned by him or his father, as a result of being struck on June 23, 1961 by a motor vehicle owned by defendant, David Cab, Inc., which came onto the said land from the adjacent land owned by defendant Freedman. Count 1 alleged that defendant Freedman operated the motor vehicle negligently; Count 2 that he operated it in a wanton and reckless manner; Count 5 that he was negligent in causing or permitting the motor vehicle to enter plaintiff’s land and strike him; Count 6 that he trespassed on the plaintiff’s property by means of the motor vehicle; Count 7 that he introduced a defective motor vehicle onto the plaintiff’s land; and Count 8 that the escape of the motor vehicle from the defendant’s land to the plaintiff’s constituted a nuisance. The draft report (No. 1) is silent as to the allegations of Counts 3 and 4. The docket discloses they were counts against the corporate defendant.
The case was tried on August 8, 1963 and on August 28, 1963. A finding was made for the defendants on all counts. Notice of the finding, with a copy thereof, was mailed by the Clerk’s Office on [Thursday] August 28, 1963, to the plaintiff’s attorneys. On the following [Thursday] September 5, 1963, the plaintiff filed a draft report (No. 1) with the Clerk’s Office, “[seeking] to raise questions of law raised by the denial of certain of the plaintiff’s requests for. rulings of law”. On October 18, 1963, the plaintiff’s attorney mailed a copy of the draft report to the trial justice. Examination of the docket failed to disclose that any request for a report was filed by the plaintiff.
On November 12, 1963, defendant Freedman filed a “Motion to Dismiss and Strike the Proposed Draft Report from the Record”. A similar motion was filed by the defendant David Cab, Inc., on November 15, 1963, on which date a hearing was held on the draft report (No. 1) and the aforesaid motions to strike. On November 21, 1963, the trial justice filed a “Disallowance of Plaintiff’s Draft Report”.
On December 3, 1963, the plaintiff filed a “Motion to Strike the Opinion and Finding of the [trial justice] disallowing the Plaintiff’s Claim for a Draft Report”. This motion was denied by the trial justice on December l7> I9&3- The plaintiff on December 24, 1963,
A hearing on the draft report (No. 2) was held on March 13, 1964, and by order filed on March 18, 1964, the court ordered the report (No. 2) dismissed as to both defendants on the ground that no copy thereof had been sent to the defendant Freedman. The court on April 23, 1964 amended this order by dismissing the report (No. 2) as to the defendant, Freedman, alone. The report (No. 2) was subsequently allowed as against David Cab, Inc.
The plaintiff having deceased, the Executors of his will were substituted as party plaintiff on June 29, 1964.
Turning first to draft report No. 1, it is clear that the plaintiff failed to comply with the Rules of the District Courts (1952) in at least two respects; first, the plaintiff
While the trial justice termed his action on the draft report (No. 1) a “Dis-allowance”, it should be viewed as what it patently purported to be, namely, a
However, a draft report (No. 2) was eventually filed and allowed by the trial justice with respect to the action against the corporate defendant, after dismissing it insofar as the individual defendant was concerned for failure to send a copy to his counsel as required by Rule 28.
We treat the report (No. 2) as being a voluntary report of the trial justice raising the propriety of his action in “disallowing” draft report No. 1. See G. L. c. 231, §108; La Caisse Populaire Credit Union v. Cross, 293 Mass. 190, 192.
We have stated, supra, that the action of the trial justice if deemed a “dismissal” of report No. 1 was proper.
If the plaintiff contends that he was disadvantaged by the trial justice’s use of the word “disallowance” in titling his action disposing of the plaintiff’s draft report, the short answer would be that the plaintiff also
Finally, to meet head-on the plaintiff’s grievance stated in the report (No. 2) that (“the court’s opinion disallowing his Draft Report No. 1) .... does not conform with the District Court Rules and specifically Rules 28 and 30 thereof which require a succinct statement of facts and reasons in the disallowance of a Draft Report”, the simple answer is that the trial justice did .clearly set forth the facts and reasons for “disallowing” draft report (No. 1) in a lengthy, written statement attached to report No. 2. While the justice did not use the words “for these reasons”, it is clear from his statement and the authorities cited in support of his action that the ground therefor was the plaintiff’s several failures above-described to comply with the Rules. There being no error, the report is dismissed.
In Rule 28 of the new Rules of the District Courts (effective January 1, 1965) rigid requirements as to the sequence of filing and sending of copies have been removed, but the Rule still requires the copies to be delivered or mailed “forthwith”.
Rule 28 (1964) of the new Rules of the District Courts now specifically refers to a dismissal as being the appropriate procedure in cases such as this.