Betts v. Rendle

Crosby, J. This is an action of contract on an account annexed to recover for services rendered and disbursements incurred in raising a sunken lighter belonging to the defendant. At the time of the sinking in the Cunard docks in East Boston, the lighter was loaded with about two hundred and eighty tons of sand, her capacity being three hundred tons. The principal issue tried was whether the work was performed in a proper and workmanlike manner, it being the contention of the defendant that the method of putting wire cables, called straps, under the lighter for the purpose of raising her was done in an improper manner and resulted in some of the planking being torn off the bottom of the [444] lighter causing the damages which the defendant seeks to recoup from the plaintiff’s claim. Upon this issue the evidence was conflicting and presented a question of fact for the jury. The defendant contends that the presiding judge erred, (1) in excluding a question put the defendant, (2) because counsel for the plaintiff was allowed to make an improper argument to the jury, and (3) in refusing to give certain requests for rulings. In direct examination the defendant was asked by his counsel, “What did the tearing off of those planks as they were torn off, in view of the condition of your boat, indicate_ about the skill or lack of skill of the operation?” This was excluded and the defendant excepted. The question, which was based on the facts as the witness found them and not on an hypothesis, called for an answer to the precise question which was the issue before the jury. Whether the planks came off because of the weight of sand in the boat or for some other reason, and before the plaintiff attempted to raise her, or were torn off by the plaintiff, was in dispute. The question allowed the witness to assume that the planks were torn off and then to give his opinion based upon the condition of the boat as he found it; it was rightly excluded. Stoddard v. Winchester, 157 Mass. 567, 575. Chalmers v. Whitmore Manuf. Co. 164 Mass. 532. The plaintiff’s counsel in his closing argument to the jury said: “it is my honest opinion that this is a trumped up defence;” at that time the defendant’s counsel objected to the statement, the court ruled that it was not objectionable and the defendant excepted. The argument was clearly improper and the jury should then have been told to disregard it. The record shows that, at the conclusion of the charge, the judge’s attention was again called to that part of the argument of counsel, and he then said to the jury, “I ought to have corrected that in this respect; counsel frequently do, but ought not to, say what their opinion is about anything; their opinion is of no consequence to the jury. . . . But if he said and argued that you should believe upon the evidence that this was a trumped up charge, I see nothing which is open to criticism as an argument ... it is for the jury to say whether a statement in argument is warranted by the evidence or not. Counsel’s opinion is of no consequence.” We think these inst'ruc [445] tians given at the conclusion of the charge corrected the erroneous ruling previously made; although the jury were not expressly told to disregard the objectionable argument, such was the plain effect of the instructions. We are of opinion the jury must have understood that the statement made by counsel should be disregarded. Morrison v. Richardson, 194 Mass. 370, 377, 378. Commonwealth v. Richmond, 207 Mass. 240, 250. Mikkelson v. Connolly, 229 Mass. 360. It remains to consider the defendant’s requests for rulings. Request “C” was covered by the instructions given. The exceptions to the refusals to give requests “F” and “G” must be overruled. While the judge stated that the method of doing the work might have been due to an error of judgment “which does not imply any lack of reasonable skill or reasonable care,” it plainly appears that the case was tried wholly on the issue whether the work was properly or negligently performed; there was no evidence of error of judgment as distinguished from negligence, and no contention was made by the plaintiff that he committed any error of judgment, his sole contention in this connection being that the work was performed without negligence. Request “H” could not have been given. The jury were instructed in substance that it would be for them to determine what the plaintiff’s services were reasonably worth; and also, that the defendant was entitled to have deducted from the claim of the plaintiff the amount of any damage done to the lighter arising from negligence of the plaintiff, and that, if they should find that the defendant by reason of such negligence had suffered damage equal to or in excess of the amount of the plaintiff’s “proper bill,” then they would return a verdict for the defendant. We think that the instructions given covered this request. It might be assumed in the absence of evidence to the contrary that the charges were to be governed by charges for similar services at the time and place in question. The instruction that the burden of proof was on the defendant in a case of recoupment was correct. Sayles v. Quinn, 196 Mass. 492. Request “J” could not have been given. The only evidence of the plaintiff’s negligence was that relating to the method adopted in putting the straps under the lighter, and allowing her to strike the bottom of the harbor while being towed to the flats; accord [446] ingly it could not have been inferred that there was any other negligence on his part. Request “K” was rightly refused. This is not a case where the doctrine of res ipso loquitur can be held to apply. • The jury would not have been warranted in inferring in the absence of any explanation, that according to common experience planks would not be detached from the bottom of the boat except for the plaintiff's fault. Curtin v. Boston Elevated Railway, 194 Mass. 260, 264. Kusick v. Thorndike & Hicks, Inc. 224 Mass. 413. We have examined the remaining exceptions and are of opinion that no reversible error is shown. So far as they were founded 1 on correct principles of law and were applicable, they were covered by the charge, which is reported in full. Exceptions overruled.