Alves v. Picard

12 Mass. App. Dec. 52

• Court: Massachusetts District Court, Appellate Division
• Decided: July 1, 1956
• Docket: No. 3614
• Status: Published

Opinion

Welch, J.

This is an action of tort in which the plaintiff seeks to recover for damages to her motor vehicle as a result of the alleged negligence of the defendant on or about June 25, 1951, tried before (Potter, Sp. J.) and there was a finding for the defendant.

The plaintiff claimed to be aggrieved by the denial of her requests for rulings and the case was reported to this Division. It was argued and we ordered a new trial on the question of damages only.

That question was then tried in the District Court (Potter, J.) and there was conflicting testimony.

The defendant filed six requests for rulings of law as follows:

1. The evidence requires a finding for the defendant.

2. The evidence does not warrant a finding for the plaintiff.

3. The evidence warrants a finding that the damage to the plaintiff’s vehicle did not exceed $87.50.

4.On ail the evidence a finding should be for the defendant because

1. The Court heard the testimony of both operators.

2. There was conflicting evidence.

3. The Court found as a fact that the plaintiff was con-tributorily negligent.

5. The evidence warrants a finding for the defendant.

6. The evidence warrants a finding that the plaintiff was contributorily negligent.

The judge filed a memorandum as follows: "As to the requests filed at the trial of the case on the question of damages only, I rule that I have no power to pass on them so far as they pertain to the trial on the question of damages only. I pass on Request No. 3 as follows: While the evidence may warrant a finding that the damage did not exceed $87.50 it does not compel such finding. As to the remaining requests, No. 1, 2, 4, 5 and 6, I do not pass upon them as no question arose relative thereto during the trial on the question of damages only, but the attorney for the defendant insisted on filing the same in order to protect the rights of the defendant if the matter should finally go to the Supreme Judicial Court.

On all the evidence relating to damages I find for the plaintiff in the amount of $200.”

The defendant claims to be aggrieved by the Court’s refusal to pass on the requests for rulings and the act of the Appellate Division in granting the plaintiff a new trial and requests this report to preserve his right of appeal to the Supreme Judicial Court because he also claims to be aggrieved by the decision of the Appellate Division in granting a new trial. Weiner v. Pictorial Package Corporation, 303 Mass. 123.

There was no error. The judge acted correctly on Request No. 3. As this was a new trial on the question of damages only he was not required to pass on the other requests which related to evidence presented at the first trial.

J. B. Nunes, for the plaintiff. L. E. Dorfman, for the defendant.

The report is dismissed. So ordered.