Appeal from the ON EXCEPTION AND MOTION FOR NEW TRIAL. This is a negligence action before the Law Court upon exceptions and motion for a new trial. Exceptions sustained.
Sitting: Williamson, C.J., Webber, Tapley, Sullivan, Dubord,
JJ. Beliveau, J., sat at argument but retired before the opinion
Practice. Exceptions. New Trial. Rule XVII. Waiver. Pleading. Negligence. Contributory Negligence. Nuisance. The filing of a motion for a new trial with the presiding justice pursuant to Rule XVII does not result in a waiver of exceptions previously noted and otherwise preserved by order of the court providing for the time of filing the transcript and extended bill (R.S., 1954, Chap. 113, Sec. 60). If, however, it develops that the issues to be decided upon the exceptions and the motion are the same, manifestly a decision on one is sufficient; likewise an error in perfecting one is not fatal to the other. R.S., 1903, Chap. 84, Sec. 53 (Chap. 87, Sec. 57, R.S., 1916), was superseded by Sec. 59, Chap. 113, R.S., 1954 and Rule XVII, and provides that a report of the evidence may be authenticated by an official reporter. The allegation of existing duty and breach thereof constitute better pleading even though the duty claimed to have been breached may be supported by the averment of facts from which the law will imply a duty and breach thereof.
Contributory negligence is an appropriate defense to an action based on nuisance which is in fact grounded on negligence.
The opinion of the court was delivered by: Dubord, J.
This case comes up to this court on exceptions to the refusal of the presiding justice to grant a motion of the defendant, made at the close of the evidence, to direct a verdict for the defendant; and on general motion.
The plaintiff advances the contention that the motion is not properly before this court because the provisions of Rule XVII, 147 Me. 470, have not been complied with. He argues that the evidence in the case was not signed by the presiding justice, nor certified by him to the Law Court; and that the evidence was not filed within 30 days of the entry of the motion.
The pertinent sections of Rule XVII read as follows:
"Motions made to have a verdict set aside as against the law
and the evidence, whether addressed to the presiding justice
or to the Law Court, must be filed during the term at which
the verdict was rendered but in any case never more than
thirty days after the rendition of such verdict,
excepting only that such a motion addressed to said Law Court
after denial of a like motion by the presiding justice must
be filed within ten days after decision adverse to the moving
party is filed by the presiding justice."
"No exceptions lie to the decision of the presiding justice
and no appeal except in cases of felony."
"When such motion is addressed to the Law Court, the party
making it shall cause a report of the whole evidence in the
case to be prepared, signed by the presiding justice or
authenticated by the certificate of the official court
stenographer, and filed within such time as the presiding
justice shall by special order direct, and, if no such order
is made, it must be done within thirty days after the
adjournment of the term at which the verdict was rendered or
within thirty days after the filing of the motion, whichever
is later; if not so done, the motion may be regarded as
withdrawn, and the clerk, at a subsequent term, may be
directed to enter judgment on the verdict."
The record indicates that at the close of the evidence, the defendant addressed a motion to the presiding justice praying that a verdict for the defendant be directed. This motion was denied. Exceptions were noted and at that time the presiding justice, by special order, directed that a transcript of the evidence be filed on or before April 30, 1957. The transcript was filed on April 29, 1957. A date was also fixed for the filing of an extended bill of exceptions which bill was filed within the time allowed.
Subsequent to the motion for a directed verdict, the defendant addressed a motion for a new trial pursuant to the provisions of Rule XVII, to the presiding justice. This motion was denied.
Plaintiff argues that by filing a motion for a new trial addressed to the presiding justice, the exceptions previously taken were waived; and as a result of this waiver all prior proceedings were in effect, effaced from the docket, and that it became necessary for the presiding justice to issue a new order specifying a date for filing the evidence. In support of his contention, plaintiff cites Mills v. Richardson, 126 Me. 244, at 249; 137 A. 689; and Fort Fairfield v. Millinocket, 136 Me. 426, at 428; 12 A.2d 173. Further reference to these decisions will be subsequently made in this opinion.
It now becomes pertinent, we think, to decide whether or not in a civil case, the filing of a motion for a new trial addressed to the presiding justice, constitutes a waiver of prior exceptions, taken to the refusal to direct a verdict, in the light of § 60, Chapter 113, R.S., 1954, which authorizes the filing of a motion for a new trial addressed to the Law Court within ten days after an adverse decision on the part of the presiding justice upon the motion addressed to him.
In the very enlightening treatise of former Chief Justice Edward F. Merrill, entitled "Some Suggestions On Taking A Case To The Law Court" to be found in Volume Forty of the Reports of the Maine State Bar Association, the author had this to say; at Page 197:
"In civil cases a general motion to the presiding justice to
set aside a verdict waives exceptions to refusal to direct a
verdict. See Mills v. Richardson, 126 Me. 244, 249 where the
court said: `An exception to the refusal to direct a verdict
for the defendant is waived by the prosecution of a motion
for a new trial before the presiding justice, or otherwise
the defendant would be seeking the same remedy through two
tribunals, getting the benefit of the second if he failed in
the first.' The same rule formerly applied in criminal cases, whether felonies or
misdemeanors. Since the case of State v. Bobb, 138 Me. 242,
felony cases are not subject to this rule. This result was
based upon the ground that now by statute the decision of the
single justice is not final, but an appeal therefrom lies to
the Law Court. Whether the change in the statute with respect
to the finality of the ruling by a single justice on a motion
for a new trial in civil cases, and the allowance of a second
motion therefor to the Law Court, will bring about a change
in the law of waiver in such cases has not been decided. It
is to be noted that in the criminal case the appeal is from
the denial of the motion by the presiding justice, while in
the civil case the motion to the Law Court is a new, separate
and distinct motion and in no way attacks the ruling of the
presiding justice. While I neither express nor intimate an
opinion on the question, discretion would indicate that if
one wished to preserve his exceptions to the denial of a
motion for a directed verdict in a civil case, a motion
should not be made to the presiding justice to set the same
aside. Precaution should be further taken if one did make a
motion to the presiding justice in such case and he denied
the same, to make a new motion to the Law Court within the 10
days allowed therefor by statute, and not rely alone upon the
exceptions to the refusal to direct a verdict, as the medium
for obtaining a review by the Law Court."
The history of the decisions of this court on the question of
waiver is of interest. In the case of State v. Simpson, 113 Me. 27;
92 A. 898; a respondent was under indictment for a
misdemeanor. After the State had introduced all its evidence, the
respondent requested the presiding justice to direct a verdict in
his favor on the ground of insufficient evidence. This motion was
denied and exceptions taken. After a verdict of guilty, the
respondent filed a motion addressed to the presiding justice to
set aside the verdict as against the law and the evidence. This
motion was overruled,
and exceptions noted. The court said that a respondent had a right to except to the refusal of the presiding justice to direct a verdict in his favor, and upon denial of the motion, he could have taken exceptions, and in that manner take the case to the Law Court and obtain a decision and opinion as to the sufficiency of the evidence. However, the court further said, he abandoned that remedy and that course of procedure, and sought the decision and opinion of the presiding justice upon precisely the same question. It follows, the court said, that exactly the same question was presented to the determination of the presiding justice by the motion which would have been presented to the Law Court on the first exception. The court ruled that the decision of the presiding justice on the motion was final; that it was a matter within his discretion, and that exceptions did not lie to his ruling. It was pointed out that in a civil case, no appeal lies from the decision of the presiding justice to the Law Court and a defeated party cannot be heard on a motion both before the single justice and the Law Court. He must exercise his option and take one course or the other. And, having exercised his choice is bound by the result.
The court called attention to the distinction between procedure in the case of a misdemeanor and of a felony. In the latter procedure provision is made by statute for an appeal to the Law Court from the denial of a motion for a new trial by the presiding justice. Section 30, Chapter 148, R.S., 1954.
The court then went on to say:
"This Court has frequently held both in criminal and civil
cases that the prosecution of a motion for new trial before
the presiding justice is a waiver of all rights of
Several old decisions of this court were cited in support of this last quotation.
It will be seen from this broad statement that even exceptions taken during the progress of the trial, such as exceptions to the admission of evidence, or exceptions taken to the refusal to give requested instructions to the jury would be waived. Such is not the law now as was pointed out in the case of Labbe v. Cyr, 150 Me. 342; 111 A.2d 330; and the cases cited in State v. Simpson, in support of the ...