363 Mass. 886

June 13, 1973

This action in tort to recover damages for personal injuries was previously before us on the exceptions of the three defendants Richard R. Doran, John F. Ridge and Patrick J. McDonough. However, only the plaintiff's attorney and McDonough's attorneys filed briefs or argued the matter before us. At the time of argument before this court, counsel for the plaintiff and the defendant McDonough answered in the negative when the court inquired whether counsel were aware of any reason why judgments should not enter on the verdicts against Doran and Ridge. Thereafter, in substance, we (1) sustained McDonough's exceptions, set aside the verdict against him, and ordered that a new trial against him should be had provided that the declaration against him was seasonably and appropriately amended, and (2) dismissed the bill of exceptions as to Doran and Ridge and ordered that judgments should enter for the plaintiff as to the jury verdicts against Doran and Ridge, by reason of their failure to file briefs with this court. Leone v. Doran, ante, 1. See S.J.C. Rule 1:13, 351 Mass. 738 . Thereafter, Doran and Ridge filed a motion to recall the rescript, set aside the order for judgments for the plaintiff, and for leave to file briefs and argue the bill of exceptions. The motion was referred to a single justice of this court, with directions by the full court to hold an evidentiary hearing as to the reasons why Doran and Ridge did not comply with the rules of this court. The single justice, on motion of Doran and Ridge, ordered an indefinite stay of execution. He then held an evidentiary hearing, and thereafter made findings, inter alia, that the liability insurer was in substantial control of the conduct of the trial and appellate review of the case; that at all times the liability insurer intended that the bill of exceptions of Ridge and Doran should be prosecuted; and that the failure to file briefs in this court was due to a failure by an attorney retained by the insurer (not the same attorney who represented the insurer at the trial of the case) to understand his duties in the matter and to execute those duties. We accept the findings of the single justice, and we conclude that the moving parties shall be granted relief substantially as they requested. We observe that in some instances we have examined the merits despite noncompliance with Rule 1:13, supra. See Travelers Ins. Co. v. Safeguard Ins. Co. 346 Mass. 622, 623; Commonwealth v. Gardner, 350 Mass. 664, 665; Lindahl v. Sullivan, 361 Mass. 863, 864; Commonwealth v. Flynn, 362 Mass. 455, 468. Further, it would serve no useful purpose at this time to require that briefs and arguments be filed on behalf of Doran and Ridge. In the prior opinion we said that "the trial was permeated with error affecting all defendants." Ante, at 19, fn. 4. Accordingly, we vacate so much of the previous rescript (see ante, at 19), as ordered the dismissal of the bill of exceptions as to Ridge and Doran and ordered that judgments enter for the plaintiff as to the verdicts against Ridge and Doran. The exceptions of Ridge and Doran are sustained and a new trial is to be had against them on all issues.

So ordered.