317 Mass. 245 | Mass. | 1944
After the decision in Scaccia v. Boston Elevated Railway, 308 Mass. 310, this action of tort for personal injuries, resulting from slipping on a banana peel which was on the floor of a motor bus operated by the defendant in which the plaintiff was a passenger, was tried before a judge of the Superior Court, sitting without jury, upon an “agreed statement of facts” submitted as evidence, from which the judge could draw inferences of fact.
At some stage of the case the parties stipulated, as appears by the report made by the judge after his decision, that this court as well as the Superior Court might draw inferences of fact from the “agreed statement of facts.” That stipulation, if effective, would produce a result much like that of a case stated. United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105, 108, 109. Keefe v. Johnson, 304 Mass. 572. Galante v. Brock-
The judge denied the plaintiff’s request for a ruling that the evidence, which consisted entirely of the agreed statement of facts, warranted a finding for the plaintiff. He found for the defendant, evidently on the ground that the evidence did not warrant a finding that the defendant was negligent. Rummel v. Peters, 314 Mass. 504, 517. He made no findings of fact as to negligence of the defendant, but ruled in effect that the evidence failed to raise a question of fact. He then reported the case for a determination of the correctness of his ruling. At the threshold lies the question whether he had authority to report the case.
The authority of a judge of the Superior Court, as distinguished from a single justice of this court (Liggett Drug Co. Inc. v. License Commissioners of North Adams, 296 Mass. 41, 44), to report a civil action at law depends wholly upon G. L. (Ter. Ed.) c. 231, § 111, which author
1. “An interlocutory finding or order.” This provision originated in St. 1900, c. 311. Plainly the ruling in question, made during the trial of the merits, was not interlocutory. Gulesian v. Richardson, 306 Mass. 184. See also National Development Co. v. Gray, 315 Mass. 127.
2. “Where there is agreement as to all the material facts.” These words are satisfied by nothing short of a case stated. Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 305. Scaccia v. Boston Elevated Railway, 308 Mass. 310, 311. Where there is a case stated, the Superior Court, under § 111, may report the case even “without making any decision thereon.” This provision originated in St. 1917, c. 345.
A statement of agreed facts is often construed as a case stated although called by some possibly ambiguous name like “agreed facts” or “agreed statement of facts.” But in the present case the parties were at some pains to point out that their agreement was merely “submitted as evidence” and was not a definitive statement of the facts. Frati v. Jannini, 226 Mass. 430. Atlantic Maritime Co. v. Gloucester, 228 Mass. 519. Jones v. Le May-Lieb Corp. 301 Mass. 133. Scaccia v. Boston Elevated Railway, 308 Mass. 310. Ray, petitioner, 314 Mass. 195. Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 715. Cerwonka v. Saugus, 316 Mass. 152. Compare McNulty v. Boston, 304 Mass. 305, 306, 307. We think that the “agreed statement of facts” was not a case stated, although, equally with a case stated (Untersee v. Untersee, 299 Mass. 417, 420; Keljikian v. Star Brewing Co. 303 Mass. 53, 60, 61), it became part of the record. Norton v. Musterole Co. Inc. 235 Mass. 587, 590. Gallo v. Foley, 299 Mass. 1, 6. Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 716. Harrington v. Anderson, 316 Mass. 187, 192.
3. The third and remaining instance is a report “after verdict, or after a finding of the facts by the court.” The authority to report after verdict is as old as the Superior Court, and originated in St. 1859, c. 196, § 32, by which a
Statute 1878, c. 231, § 1, gave to the Superior Court, in a case tried without jury, authority to report questions of law “after the finding upon the facts,” “in like manner as if a verdict had been rendered.” Bearce v. Bowker, 115 Mass. 129. In Pub. Sts. (1882) c. 153, § 6, the phrase was shortened to "after verdict or decision by the court.” Plainly a general "finding” or “decision,” in a case tried without jury, then was sufficient foundation for a report, whether or not based upon a ruling that the evidence did not warrant a contrary finding or decision. There is no reasonable ground for any difference in this respect between verdicts and findings.
In R. L. (1902) c. 173, § 105, without any reason that we can discover, the phrase was changed to read “after verdict, or after a finding of the facts by the court.” The change was contained in the Report of the Commissioners who prepared the Revised Laws, without explanatory note. The commissioners were without authority to report substantive changes. Commissioners of Public Works v. Cities Service Oil Co. 308 Mass. 349, 359.
Ever since the Revised Laws the phrase has remained as in that revision. As to reports from the Land Court the comparable phrase remained and still remains in substance “after any decision or decree dependent upon questions of law,” and it was and is provided that questions of law may be carried to this court “in the same manner” as from the Superior Court. R. L. (1902) c. 128, § 13. St. 1902, c. 458, § 1. St. 1904, c. 448, § 8. St. 1910, c. 560, §§ 1, 6. G. L. (1921) c. 185, § 15. G. L. (Ter. Ed.) c. 185, § 15. But in the revision of 1921 reports from the Land Court were also brought within G. L. (1921) c. 231, § 111, in the same words
The rule is familiar that verbal changes made in a revision of a statute do not change its meaning unless an intent to change the meaning plainly appears either from the words themselves or from the legislative history. Walsh v. Commonwealth, 224 Mass. 39. See v. Building Commissioner of Springfield, 246 Mass. 340, 343, 344. Byfield v. Newton, 247 Mass. 46, 56, 57. Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 353. Commissioners of Public Works v. Cities Service Oil Co. 308 Mass. 349, 359, 360. Silverman v. New York Life Ins. Co., ante, 101.
We are satisfied that the phrase contained in G. L. (Ter. Ed.) c. 231, § 111, "after a finding of the facts by the court,” is merely an amplification of the phrase used in Pub. Sts. (1882) c. 153, § 6, "after . . . decision by the court,” and the phrase used earlier in St. 1878, c. 231, § 1, "after the finding upon the facts,” without any intended change in meaning. We think a general finding or decision, such as is equivalent to a verdict in a jury case, is a sufficient “finding of the facts by the court” within G. L. (Ter. Ed.) c. 231, § 111, even though it results from a ruling of law that a contrary finding or decision would not be warranted by the evidence. So far as Comstock v. Soule, 303 Mass. 153, decides or declares the law differently, it is not followed. The present report in this case is within the statute. The failure of the earlier report in this case was due to the absence of a ruling of law. Scaccia v. Boston Elevated Railway, 308 Mass. 310.
We now come to the merits of the ruling. When the plaintiff boarded the defendant’s motor bus at Cleary Square in the Hyde Park section of Boston at noon on October 2, 1934, it could have been found that there was on the floor, in the aisle, near the front of the bus, a banana
The question is whether the foregoing basic facts warrant an inference of negligence on the part of the defendant or its operator. No one would be likely to enter the bus except servants of the defendant and passengers. In the ordinary course of events, no passenger would carry into the bus a banana peel, or a banana, in the condition shown by the agreed facts. Such a condition naturally would result from lying a considerable time on the floor. We think that it could be found that the peel had remained on the floor of the bus so long that in the exercise of due care the defendant should have discovered and removed it. Anjou v. Boston Elevated Railway, 208 Mass. 273. See also Foley v. F. W. Woolworth Co. 293 Mass. 232.
A number of cases in which the unexplained presence on floors or stairs of discarded parts of fruit was held insufficient evidence of negligence may be distinguished. In Goddard v. Boston & Maine Railroad, 179 Mass. 52, the banana peel did not appear to be other than fresh. In Mascary v. Boston Elevated Railway, 258 Mass. 524, where a banana peel was much like that described in the Anjou case, it lay on stairs leading from the street, and might have been recently thrown there by a child in play. In McBreen v. Collins, 284 Mass. 253, and Newell v. Wm. Filene’s Sons Co. 296 Mass. 489, the plaintiff fell on a lemon or orange peel that showed no marks of age comparable to those in the present case. In other cases the cause of the injury was an apple core or other fruit which would become discolored sooner than a banana peel would become in the condition described in the evidence in the present case. O’Neill v. Boston Elevated Railway, 248 Mass. 362. Sisson v. Boston Elevated Railway,
In accordance with the terms of the report, judgment is to be entered for the plaintiff as upon a finding for $750.
So ordered.
