Home FRANCIS GRANT & another vs. ROBERT H. GOLDEN & another.

360 Mass. 849

October 1, 1971

In this action of tort for personal injuries sustained by the minor plaintiff, and for consequential damages by his father, arising out of a motor vehicle accident, the plaintiffs have excepted to a number of rulings of the judge. The judge denied the plaintiffs' motion filed two days after the trial to take exceptions nunc pro tunc. This discretionary action of the judge was not error. The denials of the plaintiffs' motion for a new trial and requests for rulings of law were entirely proper and, in any event, because the plaintiffs did not take exceptions to these actions they cannot now be heard relative to them. The plaintiffs excepted to a question asked of a police officer: "And did you talk with . . . Golden as to what he claimed as to how the accident happened?" In answer to the question, which appears to us admissible, the police officer gave a lengthy answer read from a police report. To this answer the plaintiffs did not object or except and, in fact, continued the line of inquiry of the police officer. If they had deemed the answer properly objectionable they should have moved to have had it struck, which they failed to do. No merit appears in other arguments which the plaintiff has made to us. See Gaw v. Hew Constr. Co. 300 Mass. 250 , 251-252. Holt v. County Bdcst. Corp. 343 Mass. 363 , 366.

Exceptions overruled.

Home GREAT AMERICAN GROUP INSURANCE COMPANIES vs. THEODORE R. MULLIS.

360 Mass. 849

October 1, 1971

This is an appeal from an order sustaining a demurrer to a declaration in an action of contract and tort. G. L. c. 231, Section 96. The declaration is in three counts. The first count alleges that the plaintiff insured the defendant against loss or damage to his automobile by theft; that the automobile was stolen from the defendant and never returned; that the defendant filed a notice and sworn statement of loss with the plaintiff as required

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by the insurance policy; that the defendant warranted that he was the sole owner of the automobile both at the time of the making of the policy and in the sworn statement of loss; that the plaintiff paid the defendant for the loss in accordance with the terms of the policy; that the defendant broke the terms of the policy and the conditions set out in the sworn statement of loss; and that the defendant owes the plaintiff the amount of the payment. Although the count is inartfully drawn, we think it fairly states that the breaches referred to relate to the warranties that the defendant was the sole owner of the automobile. So read, the first count properly states a claim in accordance with G. L. c. 231, Section 7, Second, Eleventh and Twelfth. The legal effect of the insurance policy having been stated, there was no need to allege that it was in writing, or to attach a copy to the declaration. Higgins v. McDonnell, 16 Gray 386 , 387. Damiano v. National Grange Mut. Liab. Co. 316 Mass. 626 , 630. Count 2 must be read separately from counts 1 and 3. Kenney v. Boston & Maine R.R. 301 Mass. 271 , 274. It does not allege with "substantial certainty" that a contractual relationship existed between the plaintiff and the defendant, nor can such relationship be implied from the facts set forth. Pollock v. New England Tel. & Tel. Co. 289 Mass. 255 , 258-259. Nor can this count be upheld on the ground that it is a common count for money had and received because no bill of particulars has been filed as required by G. L. c. 231, Section 14. Liljestrand v. Worcester County Natl. Bank, 345 Mass. 767 . We therefore affirm on this count. Flower v. Suburban Land Co. Inc. 332 Mass. 30 . Count 3 alleges a fraudulent misrepresentation, knowingly made by the defendant, and relied on by the plaintiff to his detriment. As such, it states a good cause of action in deceit. G. L. c. 231, Section 147, Form 12. Therefore that part of the order sustaining the demurrer as to count 2 is affirmed, and that part of the order sustaining the demurrer as to counts 1 and 3 is reversed.

So ordered.