Burns v. Sawyer

Mass. Dist. Ct., App. Div.

Burns v. Sawyer

36 Mass. App. Dec. 50

CourtMassachusetts District Court, Appellate Division

DecidedJuly 1, 1967

DocketNo. 21

StatusPublished

This text of 36 Mass. App. Dec. 50 (Burns v. Sawyer) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burns v. Sawyer, 36 Mass. App. Dec. 50 (Mass. Ct. App. 1967).

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Opinion

Cox, J.

When this case first came to our attention it was because of the plaintiffs’ claim that the amount of $90.70 awarded for damage to the clutch and transmission of their motor vehicle was inadequate. [Reported in 17 LEGALITE 210]. As the record did not, in our opinion, fairly present the question of which review was sought, we remanded the case to the justice for extension of the report. The case was returned to us in due course and a new trial was ordered on the issue of damages only. The case is again before us on the same issue following the new trial.

An automobile service man called by the plaintiffs testified that the cost of repair of the vehicle would be $265.50. He had not examined the car and did not know how the damage occurred. He saw the damaged parts after they were taken apart. He did not know the price of parts but admitted that $83.75 would replace the transmission and clutch and would restore the vehicle to proper operating condition. There were photographs which showed the hook in the rear of the vehicle to which a house trailer had been attached and damage to the vehicle sustained before it came to the parking lot where the damage to the transmission and clutch is alleged to have occurred. There was evidence by the parking lot attendant that he pulled the car forward [52]*52about a car’s length to let someone out and that when he backed it up he heard a noise following which the car stopped. The noise Vas his first warning that something was wrong.

Herbert Lord of Winchester for the Plaintiff John L. Murphy of Boston for the Defendant

The justice was not required to accept the plaintiffs’ evidence that the damage for which the defendant was responsible was $265.50. There was evidence to warrant a finding of prior damage to the vehicle and that the amount for which the defendant is responsible is much less than the amount the plaintiffs claim. On the record before us we cannot see that the justice’s conclusion was not warranted. Dalton v. Demos Brothers General Contractors, Inc., 344 Mass. 377, 378-379.

The plaintiffs have failed to show any prejudicial error. Accordingly, the report should be dismissed.

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Cox, J.

When this case first came to our attention it was because of the plaintiffs’ claim that the amount of $90.70 awarded for damage to the clutch and transmission of their motor vehicle was inadequate. [Reported in 17 LEGALITE 210]. As the record did not, in our opinion, fairly present the question of which review was sought, we remanded the case to the justice for extension of the report. The case was returned to us in due course and a new trial was ordered on the issue of damages only. The case is again before us on the same issue following the new trial.

An automobile service man called by the plaintiffs testified that the cost of repair of the vehicle would be $265.50. He had not examined the car and did not know how the damage occurred. He saw the damaged parts after they were taken apart. He did not know the price of parts but admitted that $83.75 would replace the transmission and clutch and would restore the vehicle to proper operating condition. There were photographs which showed the hook in the rear of the vehicle to which a house trailer had been attached and damage to the vehicle sustained before it came to the parking lot where the damage to the transmission and clutch is alleged to have occurred. There was evidence by the parking lot attendant that he pulled the car forward [52]*52about a car’s length to let someone out and that when he backed it up he heard a noise following which the car stopped. The noise Vas his first warning that something was wrong.

Herbert Lord of Winchester for the Plaintiff John L. Murphy of Boston for the Defendant

The justice was not required to accept the plaintiffs’ evidence that the damage for which the defendant was responsible was $265.50. There was evidence to warrant a finding of prior damage to the vehicle and that the amount for which the defendant is responsible is much less than the amount the plaintiffs claim. On the record before us we cannot see that the justice’s conclusion was not warranted. Dalton v. Demos Brothers General Contractors, Inc., 344 Mass. 377, 378-379.

The plaintiffs have failed to show any prejudicial error. Accordingly, the report should be dismissed.

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36 Mass. App. Dec. 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-sawyer-massdistctapp-1967.

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