Shields v. LeBrecht

187 N.E.2d 498, 345 Mass. 354, 1963 Mass. LEXIS 666

• Court: Massachusetts Supreme Judicial Court
• Decided: January 30, 1963
• Status: Published

Opinion

Wilkins, C.J.

This is a report of the question as to the correctness of the judge’s denial of the plaintiff’s motion that the case he removed from the nonjury trial list and placed upon the list of cases for trial by jury. The action was commenced in the Superior Court for Worcester County by writ in contract or tort. The declaration, as filed, contained a count in tort by the female plaintiff for injuries caused by negligence and a count, later waived, by her husband for consequential damages.

Upon the back of the writ were the printed name of the court and the typewritten names of the parties. At the bottom following the printed words “From the office of” there is typewritten “Jacob I. Brier, Esq.” Below this originally was printed, “Plaintiff gives notice that he desires a trial by jury.” This was changed by typing in the italicized letters and by drawing a line in ink through the s at the end of each verb so as to read,1 ‘ Plaintiffs gives notice that they desires a trial by jury.” Below this a dotted line for the name of counsel was left blank. The report states that it is customary in Worcester County for the name of the plaintiff or his attorney to be typewritten or signed in this space.

In denying the motion the judge ruled that “the plaintiff had not originally duly claimed trial by jury by any matter on the back of the writ.” This ruling was erroneous. The intent to claim the constitutional right of jury trial was clearly indicated. Any custom in the particular county is irrelevant. The case is completely covered by Higgins v. Boston Elev. Ry. 214 Mass. 335.

Order denying motion reversed.