344 Mass. 21 | Mass. | 1962
This action of tort by a pedestrian, who was hurt on January 7,1959, when struck by the defendant’s sedan, is here upon report of various interlocutory rulings made by a judge of the Superior Court. Gr. L. (Ter. Ed.) c. 231, § 111. The case was heard by an auditor, whose findings of fact were not to be final. After he filed a report, the defendant filed two motions: one to strike certain portions, and the other to discharge the report. A judge sitting before trial allowed the motion to strike as to two
The paragraphs of the report which were struck were the following: “33. I find that $20,000 would he fair and reasonable compensation to the plaintiff for the pain and suffering she has already sustained and hereafter may or will sustain, and for whatever impairment of her earning capacity and medical expenses she may or will sustain and incur in the future, as a result of her said injuries.” “38. I find for the plaintiff in the sum of $21,174.38.”
The motion to strike paragraph 33 was: “For the reason that the damages awarded are grossly excessive and show on their face that the auditor took into consideration a basis which is contrary to the law in that he expressly indicated that his award of damages was based in part at least on the pain and suffering that the plaintiff 'hereafter may or will sustain’ thus indicating that he considered future possibilities for which there was no basis in the evidence.” The motion to strike paragraph 38 was “for the reason that the finding is grossly excessive and based upon conclusions of law that are not warranted on the subsidiary facts found.” In his report the judge stated: “I find that the amount found by the auditor as damages for the plaintiff was unconscionably large. ... It seems to me that the finding would influence the jury in some way so that the verdict returned by them would not represent their own judgment.” Paragraph 33 is not open to one of the objections stated in the defendant’s motion to strike. As the evidence is not before us, it cannot soundly be argued that the auditor “considered future possibilities for which there was no basis in the evidence,” or that his findings were based on speculation or conjecture. It seems to us that in this respect Cross v. Sharaffa, 281 Mass. 329, is authority against, and not for, the defendant.
General Laws (Ter. Ed.) c. 221, § 56, contains this sen
In Shine v. Campanella & Cardi Constr. Co. 342 Mass. 150, 151, it was held that the express reference to the powers of “the court at the trial” did not prevent action by the court before trial in striking improperly reported evidence or confusing or contradictory findings. No intimation was intended, nor we think made, that the powers of a judge are greater before trial than at the trial. Nor do the requirements of the case at bar call for such an intimation of comparative powers.
The judge in the case at bar ruled that the amount of damages was excessive, or in his words, “unconscionably
The dictum in Jones v. Stevens, 5 Met. 373, 377, relied upon by the defendant, is not authority that a judge has untrammeled discretion to strike findings, but was intended, we think, to refer to the power of a judge in dealing with a report containing “partial errors” to delete the erroneous parts.
In accordance with the terms of the judge’s report, paragraphs 33 and 38 shall be restored to the auditor’s report. The plaintiff’s motion to recommit is waived.
So ordered.
Two other sentences were struck with the consent of the plaintiff and are not considered.
In St. 1914, e. 576, § 2, the final phrase read, “or upon evidence which is inadmissible.”