In these cross-actions of contract tried before a judge and a jury in the Superior Court, in which a verdict was returned for Norman H. Quinn as plaintiff and also as defendant, exceptions were lodged by Stoneham Laundry, Inc. as a defendant. Those exceptions are now before us. We concern ourselves principally with the language of the judge's charge in which he commented on evidence given by a witness for the defendant laundry. The evidence related to the price charged by the witness for oil sold to the laundry. The judge's statement in effect undercuts that evidence; he told the jury that the witness had not testified relative to the distance which he had to transport the oil for delivery and that "the price of oil as testified to . . . really doesn't mean much because it's subject to a qualification and that's the qualification of the distance it has to be hauled." He did not, however, apply the same qualification to the testimony of the plaintiff Quinn who also did not testify relative to the distance he hauled the oil, for the delivery and sale of which he brought his action. The question of the effect of distance on price was thus raised and commented on in the charge in one instance but not in the other. Thus "the effect . . . was to throw the weight of the judge's opinion in the scales against the defendant." Commonwealth v. Foran, 110 Mass. 179 , 180. Cahalane v. Poust, 333 Mass. 689 , 692-694. This was error. That we have considered this matter notwithstanding noncompliance by the excepting party with S.J.C. Rule 1:22, 351 Mass. 742 , is not to be construed as an indication that the rule may be disregarded.
[Note 1] Stoneham Laundry, Inc. vs. Norman H. Quinn.
The plaintiffs appeal from an order of the Superior Court sustaining the defendant's demurrer. The essential allegations of the several counts in the declaration in this action of "contract and/or tort" were that the assessors of the city of Newton "did knowingly violate their oath of office by using an intentional scheme of over-assessing the plaintiffs' property . . . in violation of and contrary to the provisions of" G. L. c. 41, Sections 29 and 30; that the assessors arbitrarily and capriciously denied the plaintiffs' applications for abatement of taxes without benefit of a hearing, thus causing the plaintiffs to pay a disproportionately excessive tax which has resulted in extensive monetary damage to each of the plaintiffs. The exclusive and adequate remedy for overassessment is afforded by abatement proceedings under G. L. c. 59, Sections 59-74.
Order sustaining demurrer affirmed.
In this action of tort resulting from a burn sustained by the minor plaintiff who came in contact with a high voltage wire owned by the defendant, the minor plaintiff seeks damages for personal injuries and his father, the other plaintiff, seeks to recover consequential damages. The jury
returned a verdict in favor of the defendant. The plaintiffs excepted to the judge's failure to grant certain of their requests for instructions. It is unnecessary to recite the evidence. The three requests on which argument is particularly made dealt with the following: (1) the presumption and standard of due care relating to a boy of nine years; (2) whether the defendant's failure to insulate high voltage wires constituted negligence; and (3) the failure to inspect as evidence of negligence. While the judge did not give the instructions in the terms requested, a review of the bill indicates that he dealt with their subject matter adequately in the charge. There was no error. Squires v. Fraska, 301 Mass. 474 , 476. Ball v. Forbes, 314 Mass. 200 , 204. Industron Corp. v. Waltham Door & Window Co. Inc. 346 Mass. 18 , 21-22. See Commonwealth v. Monahan, 349 Mass. 139 , 170-171.