Mantho v. Nelson , 285 Mass. 156 ( 1934 )

By the Court.

This is an action of tort for conversion. No exceptions were saved at the trial and no exception was taken to the charge. A verdict was returned in favor of the defendant. The plaintiff then filed a motion for a new trial on the grounds that the verdict (1) was against the evidence and the weight of the evidence, and (2) was against the law and the evidence, and that the plaintiff was entitled to a verdict (3) as matter of law and (4) as matter of fact. The case comes before us on exceptions to the refusal of the trial judge to allow this motion.

The general rule is that upon a motion to set aside a verdict a judge is not required to pass upon requests which might have been raised at the trial on the merits. Ryan v. Hickey, 240 Mass. 46, 48. Hallett v. Jordan Marsh Co. 240 Mass. 110, 112-113. Lonergan v. American Railway Express Co. 250 Mass. 30, 39. Commonly a motion for a new trial is addressed solely to the sound discretion of the trial judge. The exercise of that discretion will stand unless it appears to have been abused or to rest upon some error of law. Formal findings of fact need not be made. Davis v. Boston Elevated Railway, 235 Mass. 482, 494-495. Commonwealth v. Dascalakis, 246 Mass. 12, 25-26. Energy Electric Co., petitioner, 262 Mass. 534, 538. Vengrow v. Grimes, 274 Mass. 278. It is not necessary to decide that circumstances may not arise requiring the setting aside of a verdict where no question of law was raised at the trial on the merits and where the verdict appears to have been the result of prejudice or some unwarrantable mistake on the part of the jury. Cunningham v. Magoun, 18 Pick. 13. Lufkin v. Hitchcock, 194 Mass. 231, 235. Without reviewing the evidence in detail it is enough to say that no error of law is disclosed on the present record. Malden Trust Co. v. Perlmuter, 278 Mass. 259. Commonwealth v. Osman, 284 Mass. 421, 426. The case at bar falls within the general rule that the disposition of a motion for a new trial rests in sound judicial discretion.

Exceptions overruled.