Stella v. Curtis

27 Mass. App. Dec. 195

• Court: Massachusetts District Court, Appellate Division
• Decided: January 20, 1964
• Docket: No. 5801; No. 931
• Status: Published

Opinion

Connolly, J.

This action of tort for personal injuries has been the subject of two trials. In both there was a finding for the plaintiff.

For alleged error in the first trial, the case was reported to this Division at the request of the plaintiff. Error was found and a new trial on the issue of damages only was ordered. Stella v. Curtis, 20 Mass. App. Dec. 194; 12 LEGALITE 201.

The damages awarded the plaintiff in the second trial were substantially higher than the damages awarded in the first trial.

At the request of the defendant, the case is again before this Division. No question of law arising out of the second trial is presented by the report. What the defendant seeks is a review of the decision of this Division ordering a new trial.

The action of this Division in ordering a new trial was not a “final decision” from which an appeal could have been claimed and entered at once in the Supreme Court. Alves v. Picard, 337 Mass. 77, 78; Redfield v. Abbott Shoe Company, 335 Mass. 208, 209; Weiner v. Pictorial Paper Package Corp., 303 Mass.

Salvatore J. Basile, Michael T. Stella, both of Lawrence, for the Plaintiffs. Howard J. Nedved, Richard H. Flood, both of Lowell, and Irvin M. Davis, of Boston, for the Defendants.

But that decision is the law of the 123, 125.

case as far as this Division is concerned and since there is no question of law in connection with the second trial presented for our. consideration, we have no alternative but to dismiss the report.

However, this dismissal constitutes a “final decision” in the case from which an appeal to the Supreme Court will lie.

And an appeal from this decision will bring before the Supreme Court for. review both our first decision ordering a new trial and this, our final one, regardless of what questions of law are raised by the present report. Weiner v. Pictorial Paper Package Corp., 303 Mass. 123, 127; Peerless Casualty v. Marinucci Bros. & Co., Inc., 336 Mass. 691, 694; Via v. Asbestos Textile Co., Inc., 335 Mass. 210, 212; Butler v. Cromartie, 339 Mass. 4, 6.

The report is to be dismissed.