Home GEORGIA E. MANELL vs. S. S. KRESGE COMPANY.

302 Mass. 601

January 6, 1939

Exceptions overruled. The verdict for the defendant was directed rightly. The evidence did not warrant a finding of negligence on the part of the defendant, its officers, agents or servants. There was no error in the exclusion of evidence.

Home NATHAN KURHAN vs. JACOB GREEN.

302 Mass. 601

January 6, 1939

Exceptions dismissed because prematurely entered in the full court. This is one of eight cases which were tried together in the Superior Court and transmitted to the full court under a consolidated bill of exceptions of the defendants. After verdict for the plaintiff in each of the cases, there was filed by the plaintiff in each of the cases, except that of Daniel Basil vs. Jacob Green, motions for new trial on the ground that the damages awarded were inadequate, and a motion was also filed by the defendants, in each of the cases that a new trial be ordered because the verdicts were against the evidence and the weight of the evidence and against the law applicable to the cases. After hearing, the judge of the Superior Court granted the motions of the several plaintiffs and ordered a new trial in each case, except that of Daniel Basil vs. Jacob Green, limited to the matter of damages only, and denied the motions of the defendants. Since the entry of the cases in the full court, the defendants have waived their exceptions in all of the cases except that of Nathan Kurhan vs. Jacob Green. Inasmuch as a new trial has been ordered in that case, it is not properly before the full court because, standing alone, it was not ripe for entry therein, G.L. (Ter. Ed.) c. 231, Section 135, and therefore the exceptions must be dismissed and the case remanded to the Superior Court.

Home MILTON PINS vs. I. J. FOX, INC.

302 Mass. 601

January 31, 1939

Exceptions overruled with double costs. The motion for a new trial was addressed to the discretion of the trial judge. It was for him "to determine in his discretion whether the verdict was against the

Page 602

evidence." McKin v. Siegel, 256 Mass. 269 , 270. See also Ridenour v. H. C. Dexter Chair Co. 209 Mass. 70 , 76. This was a question of law which could have been raised, though in different form, at the trial on the merits. The record discloses no other question of law raised by the motion which could not have been raised at the trial by pertinent requests for rulings. Questions of law involved in the question whether the verdict was "against the law," see McKin v. Siegel, 256 Mass. 269 , 270, or "inconsistent with the claim of either the plaintiff or the defendant" could have been so raised. "It is the long established and frequently applied rule of practice in this Commonwealth that a party cannot as matter of right raise a question of law on a motion to set aside the verdict and grant a new trial, which might have been raised before verdict." Lonergan v. American Railway Express Co. 250 Mass. 30 , 38, and cases cited. Mantho v. Nelson, 285 Mass. 156 , 158. No abuse of discretion is disclosed by the record. See Murnane v. MacDonald, 294 Mass. 372 , 375. Therefore no exception lies to the denial of the motion. Restuccia v. Bonner, 287 Mass. 592 , 593.