Swanton v. Home Coal Co. , 354 Mass. 758 ( 1968 )

A count in tort for negligence was joined with a count in contract for the same cause of action. Both alleged damage caused by the defendant, a house mover, while moving a house owned by the plaintiff. The count in contract alleged that the defendant was a common carrier. By a series of palpably erroneous rulings on evidence, to many of which exception was taken, the judge denied the plaintiff a fair opportunity to present his case for negligence. At the close of the evidence, he “called upon the plaintiff” to elect between the two counts. This was error, G. L. c. 231, § 7, Sixth, but not reversible error since the plaintiff did not except to the order. He elected to rely on the contract count. The judge then, subject to exception, directed a verdict on the contract count on the ground that the defendant was not a common carrier. He had previously excluded, however, subject to exception, an attested certificate that the defendant was an irregular route common carrier of buildings. This was error 'and ground for reversal. We need not cite other rulings which were prejudicial to the presentation of the plaintiff’s case on the contract count. The exceptions are sustained with leave to the plaintiff to amend.

So ordered.