Annual Survey of Massachusetts Law
Volume 1954
Article 31
1-1-1954
Chapter 25: Civil Procedure and Practice
Joseph G. Crane
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PART I I I
Adjective Law
CHAPTER 25
Civil Procedure and Practice
JOSEPH G. CRANE
This chapter is limited to civil law matters; equity practice and pro-bate practice are discussed in Chapters 6 and 7 respectively. This chapter deals with statutes, rules of court, and opinions which are wor-thy of note. With reference to statutes and rules of court, innovation has largely, but not exclusively, provided the test of selection. Ap-plied wi th strictness to opinions, such a test would be too restrictive. The cases noted, therefore, have been selected on the basis of the con-sequence which the court appears to have attached to them and this has been determined chiefly by the extent of the treatment which the
COllrt devoted to the procedural points involved.
Statutes and rules of court are not separately considered but are noted in connection with the particular phase of procedure to which they pertain. However, attention should be called to the action of the Superior Court in promulgating a new body of rules effective on Jan-uary 1, 1954. Most of the former rules were retained intact, but in nearly forty rules there appear changes ranging from the correction of grammar to the revision of policy. The only two rules on which changes of consequence were made are discussed herein.
In May, 1954, the Advisory Committee on Rules for Civil Procedure of the Supreme Court of the United States distributed to the bar of the nation a preliminary draft of proposed amendments to the Rules of Civil Procedure for the United States District Courts for the pur-pose of eliciting, before December 1, expressions of opinion from the bench and bar as to the merits of the proposed changes.
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seven of the existing rules would be affected in varying degrees. It
would be beyond the scope of this chapter to discuss these proposals, but it seems appropriate to mention the action of the Advisory Com-mittee, since it is perhaps the most important single event of the year relating to civil procedure in this country. As is well known, the Fed-eral Rules of Civil Procedure have been very influential in the im-provement of civil procedure in the states.
§25.1. Jurisdiction over subject matter: Motor vehicle torts. In an effort to cure the congested condition of the trial lists in the Su-perior Court, and upon the recommendation of a majority of the Ju-dicial Council,1 the legislature re-enacted the Fielding Act.2 This
stat-ute amends Chapter 218, Section 19 of the General Laws so as to confer upon the District Courts exclusive original jurisdiction of ac-tions of tort arising out of the ownership, maintenance, operation, control, or use of a motor vehicle. It also amends Chapter 231 of the General Laws by the insertion of a new section, Section I02B, designed to preserve the constitutionality of the statute with reference to the right of trial by jury.3 In addition the statute governing venue of ac-tions in the District Courts, Chapter 223, Section 2, was amended to conform to the readopted Fielding Act.4
The new Section 102B provides that upon removal of such a case to the Superior Court on a claim of jury trial, the action may be marked for trial upon the list of causes advanced for speedy trial by jury. In this connection it is perhaps worth while to call attention to the Acts of 1954, Chapter 668, which enables the Chief Justice of the Superior Court to request District Court judges to sit in the Superior Court at the trial of motor vehicle tort cases with or without a jury.
§25.2. Process: Attachment of wages. The unsatisfactory vagueness of Chapter 246, Section 32, Clause 8 of the General Laws was recti-fied by the enactment of new legislation.1 The new statute relates to
the attachment by trustee process of money or credits due for wages for personal labor or services of the defendant. Prior to the enact-ment of the 1954 statute the provision requiring notice to the defend-ant of intention to apply for permission to attach contained no speci-fications with regard to the period of notice or the other customary provisions as to manner of notice, but left the form of notice to be prescribed respectively by the Chief Justice of the Superior Court, the Chief Justice of the Municipal Court of the City of Boston, or the Administrative Committee of the District Courts. This resulted in an undesirable lack of uniformity in practice, which the statute
elimi-§25.1. 1 Pub. Doc. 144. Twenty-ninth Report of the Judicial Council of Massa-chusetts 9 (1953); 38 Mass. L.Q .• No.5. p. 21 (1953).
2 Acts of 1954. c. 616. §1. This legislation was first adopted in the Acts of 1934. c. 387. and was repealed by Acts of 1943. c. 496.
3 Acts of 1954. c. 616. §3. • Id. §2.
§25.2. 1 Acts of 1954. c. 467.
nates by making specific provisions with respect to all essential aspects of the notice to the defendant.
§25.3. Statute of limitations: Estoppel. The defense of the statute of limitations has never been favored in case law, due, no doubt, to the fact that it has no bearing on the merits. In Knight v. Lawrence!
the Court appears to have extended to their extreme limits the grounds upon which the defense may be overcome. It is, of course, clear that if a prospective defendant has by fraud induced a prospec-tive plaintiff not to bring action until the statute of limitations has run, or has so conducted himself as to give rise to an estoppel, such fraud or estoppel affords a complete reply to the defense of the statute of limitations.
Knight v. Lawrence was an action of tort arising out of a motor
ve-hicle accident occurring in November, 1950, in which the plaintiff, a woman seventy-seven years of age, claimed to have sustained personal injuries. The defendant pleaded the statute of limitations. It ap-peared that an adjuster for the casualty company defending the case interviewed the plaintiff in November, 1950, early in 1951, and in Oc-tober, 1951. In the course of one of these interviews, the adjuster in effect represented to the plaintiff that it would not be necessary for her to commence an action in order to preserve her rights. The dis-cussion by the Court makes it apparent that the critical passage in the record consisted of the following question and answer:
Counsel for Plaintiff:
Q:
"Now, do you remember in addition to what you have told us, that he told you that you did not need to do anything about your case, that they would settle it?"Plaintiff:
A: "Yes, he did."
The Court decided that this constituted sufficient ground for a find-ing of estoppel.
§25.4. Res judicata. In Pioneer Insulating & Modernizing Corp. v. City of Lynn! the Court held that on the facts a judge of the Land
Court had erred in sustaining the defense of res judicata to a petition brought by one who had been neither a party nor a privy to the earlier proceeding and it further held that the fact that counsel for the peti-tioner attended the earlier proceeding and conferred with and "as-sisted" counsel for the defense therein had no effect to render the deci-sion in the earlier proceeding binding upon the petitioner in this case. The Court recognizes that in certain circumstances a party may be sub-ject to the defense of res judicata by virtue of the adjudication in an earlier proceeding to which he was not a party if, either individually
§25.3. '1954 Mass. Adv. Sh. 317, 118 N.E.2d 747.
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or in cooperation with others, he controlled the earlier action and had a financial or proprietary interest therein.2
§25.5. Motions, pleas, and demurrers: New time limit for marking up and hearing. Rule 33 of the Superior Court Rules ot 1954 con-tains a new provision which requires that motions to dismiss, de-murrers, pleas, answers in abatement, and motions for particulars or specifications shall be marked for hearing within six months and heard within one year after filing, or within such further time as the court may allow, and that failure to comply with these requirements shall be equivalent to the waiver of such pleading. No case interpreting or ap-plying the new rule has yet appeared, but the relation of this rule to Rule 2 of the Superior Court Rules of 1954 should be noted.1 In all
probability, the effect of the new Rule 33 is to require affirmative ac-tion by way of moac-tion where the requirements of the rule for marking and hearing have not been met.
This new rule has been made a factor in Rule 85 of the Superior Court Rules of 1954 relating to the dismissal of old cases. It should be noted that Rule 85 reduces from three years to one year the time within which action must be taken in a case which has been marked inactive thereunder in order to avoid dismissal.
§25.6. Reports of physical examination: Availability to plaintiff in tort cases. A new statute of 19541 provides that any company having
a motor vehicle liability policy or bond in force shall, upon the re-quest of a person injured by one insured by such company, furnish him with copies of reports of all medical examinations made by it. It
is further provided that the injured party, upon request of the insurer, shall furnish copies of reports of examinations and medical treatment which he himself has procured. The statute thus provides a salutary means of eliminating the element of surprise in regard to a very im-portant aspect of the trial of motor vehicle tort cases.
It is not clear, however, why this device should be limited to motor vehicle cases. Rule 35 of the Federal Rules of Civil Procedure con-tains a provision calculated to achieve the same results and it applies to all cases in which the mental or physical condition of a party is in controversy. It seems to be a more desirable approach to the problem of availability of medical reports.
'Weld v. Clarke, 209 Mass. 9, 95 N.E. 651 (1911); Restatement, Judgments §84 (1942).
§25.5. 1 Rule 2 is as follows: "The court in its discretion may order or permit pleadings to be filed, or any act done, at other times than provided in these rules; but this shall not apply to the taking of exceptions or the filing of and proceedings relative to draft reports under Rule 75, or the claim of appeals under Rule 103. The filing and allowance of bills of exceptions shall be subject to the applicable statutes. When the day or the last day for the performance of any act authorized or required by these rules or by any order of the court falls on Saturday, Sunday or a legal holi-day, the act may be performed on the next succeeding business holi-day, unless a con-trary intent appears."
§25.6. 1 Acts of 1954, c. 334.
§25.7. Use of textbooks as evidence: The requirement of notice. A problem of the application of Chapter 233, Section 79C of the General Laws! was in question in Murawski v. Laird.2 This statute renders a statement of fact or opinion on a subject of science or art contained in a published treatise, periodical, book, or pamphlet ad-missible in evidence in the discretion of the court and subject to the court finding that such statement is relevant and that the writer is a recognized expert on the subject. The statute requires that a party intending to use such a statement notify the adverse party, not less than three days before the trial, of his intention to do so, specifying therein the name of the writer of the statement and the title of the treatise, periodical, book, or pamphlet. In the Murawshi case, the
no-tification given referred only generally to the treatise intended to be offered, without citation to a particular chapter, passage, or page. The statements offered at the trial were excluded by the trial judge who placed his ruling explicitly on the ground that the statute re-quired either that the notification contain the statements intended to be used, or refer to the page of the publication containing the state-ment intended to be used. This ruling was held by the Supreme Ju-dicial Court to be erroneous as importing language into the statute which was not there.
Notification of intention to use a medical treatise, which may well be a multivolume work on a variety of subjects, without more than the name of the author and the title of the treatise included in the notice, obviously lacks the specificity which the practical conduct of court work requires.
It should be noted, however, that a bill 3 was presented to the
Gen-eral Court in 1954 to remedy this defect in the statute and that the bill was defeated.
§25.8. Interrogatories. A new provision of Superior Court Rule 36 requires interrogatories to be filed within one year after the entry of a case, or within such further time as the court may allow. Formerly there was no limitation upon the time within which interrogatories might be filed other than that they were to be filed after the entry of a writ or the filing of a bill or petition.! It may be open to question whether the limitation imposed by the new provision of the rule is harmonious with the legislative intent. In any event, where the new requirement is not met, the provision would seem to necessitate a mo-tion by the party seeking to file interrogatories after the time pre-scribed by the rule.
§25.9. Peremptory jury challenges. The statutory right to peremp-tory challenges! was further developed in Kabatchnick v. Hanover-Elm
~25.7. 1 Added by Acts of 1949, c. 183, §l.
2330 Mass. 599,116 N.E.2d 279 (1953). " House No. 584 (1954).
~25.8. 1 G.L., c. 231, ~61.
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Building Corp.2 This was an action of tort for deceit against a
cor-poration and one who was an officer thereof and manager of its af-fairs. Counsel for the defendants claimed two peremptory challenges for each defendant. The trial court ruled that within the intendment of the statute3 there was but one defendant. The issue was whether a
principal who does not participate in a tort committed by his agent in the course of his employment is a joint tort-feasor with such agent. The well-settled view in Massachusetts is that they are not joint tort-feasors.
The Supreme Judicial Court decided that although in such a case the principal and agent might be joined as parties by virtue of the provisions of Chapter 231, Section 4A, of the General Laws, the legal relationship between them was not so affected by the statute as to make them joint tort-feasors for the purposes of the statute controlling peremptory challenges. The case appears to be the first in which the Court was called upon to apply the two statutes in combination.
§25.10. Conduct of jurors. In Commonwealth v. Theberge! the
defendant had been indicted, tried, and convicted of manslaughter and arson. After verdict, at a summary hearing before the trial judge in the lobby, it appeared that a juror had asked for and obtained rides to his home by automobile with firemen and others, some of whom had appeared as witnesses for the Commonwealth, and that the fire-men and others had discussed some of the witnesses and their testi-mony during these trips. Although the witnesses at the summary hearing had not been sworn, their testimony was taken down by an official stenographer and the transcript thereof made part of the rec-ord by rec-order of the trial judge. The judge found that the juror was "entirely innocent of wrongdoing" and had been in no way influenced by the incident. In open court the trial judge denied the defendant's motion for new trial.
The Supreme Judicial Court described the discussion between wit-nesses and spectators in the presence of the juror as "inexcusable and reprehensible" and concluded that, in the light of the facts disclosed, the right of the defendant to a fair and impartial trial had been in-fringed and that, despite the findings of the trial judge, it was error to deny the defendant's motion for a new trial.
The case affords an interesting comparison with Hilton v. McDon-ald,2 where at the end of a court session the foreman of the jury had
been observed getting into the carriage of a witness for the defend-ant and driving away. There the Court, speaking through Justice Holmes, felt that very little more could have been needed to induce the trial judge to set aside the verdict.
§25.11. Appellate briefs: Citations to the record. In Winthrop
21954 Mass. Adv. Sh. 397, 1\9 N.E.2d 169. • 9 Wigmore, Evidence §2494 (3d ed. 1940).
§25.1O. '330 Mass. 520, 1\5 N.E.2d 719 (1953). '173 Mass. 124,53 N.E. 208 (1899).
Products Corp. v. Elroth Co., Inc.! the Court called attention to the
requirement of Rule 15 of the Rules for the Regulation of Practice Before the Full Court (1952),2 to the effect that briefs shall specifi-cally indicate the pages of the printed copy of the record which are relied on as supporting references to facts or evidence. Since the Court has deemed this practice of sufficient importance to warrant its inclusion in the rules as a requirement, it would seem to be prudent to comply.
§25.12. Mandamus: Proper parties. In Massachusetts Society of Graduate Physical Therapists, Inc. v. Board of Registration in Medi-cine! the society and two individual members joined as petitioners in
mandamus to require the board to issue certificates of registration to practice physical therapy to certain members of the society under the provisions of Acts of 1951, Chapter 656, Section 2. By the terms of this statute the legislature provided in substance that physical therapists must satisfy certain eligibility requirements, pass an examination con-ducted by the board, and be registered by the board, but that the board must register any person applying on or before March 1, 1952, who, on the effective date of the statute, was a member of the Massa-chusetts Society of Graduate Physical Therapists. The case came to the Supreme Judicial Court on report from the Superior Court, where the judge had denied relief to several members of the Society on a va-riety of grounds (all of which the Supreme Judicial Court rejected) but had stated that he made his decision "as a matter of law and dis-cretion."
The Court concluded that where a petitioner proves an absolute right, under the statute, to be registered, there is no scope for the exer-cise of judicial discretion to deny relief, and to do so in such circum-stances is arbitrary.
The Court felt obliged to deal with a point of practice which had not been raised in the case. The two individual petitioners had been granted relief in the Superior Court and were not parties to the peti-tion. The society was a corporation not seeking to vindicate any rights of its own by attempting, in a representative capacity, to enforce the individual rights of its members. The Court found nothing in its decisions to warrant a class petition in mandamus, which is on the law side. The society was therefore not a proper party. Hence all the rulings reported affected parties to the proceeding in its appellate stage. In this posture of the case the Court concluded that since the issues had been fully tried as to each individual and ought not to be retried, the parties affected should be permitted to become parties pe-titioner by amendment.
Although there is little authority in Massachusetts cases on the proper joinder of parties petitioner in mandamus, there are
authori-§25.l1. '1954 Mass. Adv. Sh. 91. 94, II7 N.E.2d 157. 159.
2 Crane, Massachusetts Court Rules - Annotated, 1954 Supp. II.
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ties holding it improper to join as petitioners those whose rights are several in the sense that each stands on its own footing, as where the several owners of different properties have been joined. However, the Court concluded that the indiviciu<ll members of the society had a common interest by virtue of the Acts of 1951, Chapter 656, Section 2 and might therefore properly be joined as petitioners by amendment after rescript.
