Daniel v. Jardin

70 N.E.2d 801, 320 Mass. 764, 1946 Mass. LEXIS 788

• Court: Massachusetts Supreme Judicial Court
• Decided: November 27, 1946
• Status: Published

Opinion

Order dismissing report affirmed. This is an action of contract or tort by a landlord against tenants of a dwelling house to recover for intentional damage to the premises let. The judge found that he was “not satisfied by a fair preponderance of convincing evidence that the defendants or either of them deliberately damaged or did anything to the tenement other than to use it in an ordinary reasonable way,” and made a general finding for the defendants. The Appellate Division dismissed the report. The plaintiff appealed. Certain of the plaintiff’s requests for rulings were rightly denied. They were either requests for findings of fact (Crowninshield Shipbuilding Co. v. Jackman, 283 Mass. 21, 22), or were rendered immaterial by the finding above quoted (Cameron v. Buckley, 299 Mass. 432, 434; Strong v. Haverhill Electric Co. 299 Mass. 455, 456), which was sufficient compliance with Rule 27 of the Rules of the District Courts (1940). The fact, if it be a fact, that certain evidence of the plaintiff was uncontradicted did not require that the judge accept it as true. Lydon v. Boston Elevated Railway, 309 Mass. 205, 206. Perry v. Hanover, 314 Mass. 167. Zorrillo v. Stone, 317 Mass. 510, 511. Contrary to the plaintiff’s contention, this is not a case for application of the rule of law sometimes referred to as res ipso loquitur. The plaintiff’s requests for rulings which were granted did not require a finding for the plaintiff. There was no inconsistency between the general finding and the granting of the requests. But if there had been, the remedy was either a motion to correct the rulings made on the requests or a motion for a new trial. National Shawmut Bank v. Johnson, 317 Mass. 485, 492.