
    NEW ENGLAND TRANSPORTATION CO. vs. CODMAN HILL CONSTRUCTION CO.
    Suffolk, ss. Municipal Court of the City of Boston
    Argued June 13, 1938
    Opinion filed June 27, 1938.
    Present: Bolster, G. J., Riley & Tomasello, JJ.
    
    
      P. F. Perkins, for the Plaintiff.
    
      H. H. Davis, for the Defendant.
   Bolster, C. J.,

A preliminary question arises on this report. The judge makes a report, not of the “case” under the Stat. 1931, Ch. 325, but of his “rulings”, under Gen. Laws, Ch, 231, sec. 108, if the defendant “properly reserved any question of law on its request for rulings”, that is, if the defendant took the required steps to set up a course of review. On what is contained in the report on this point, the cases referred to by the trial judge would require an order discharging the report rather than one dismissing it. But the files also show that the defendant seasonably filed a separate claim of report in the clerk’s office, in which, after full recital of its requests for rulings, and the judge’s action thereon, it requested that “the aforesaid rulings” be reported. This satisfies both the statute and the requirement at the end of Buie 28.

The defendant, however, although properly in a court of review, there meets a more serious obstacle. Of its five requested rulings, the judge granted four. It is not argued that such action harmed the defendant. Those rulings correctly stated rules affecting decision, but they did not wholly cover the field of allegation and issue. All that is left is the refusal of a generalized request that the evidence did not warrant a finding for the plaintiff. However phrased, and whatever called, a ruling addressed to all the evidence in the case, and challenging its sufficiency in law to support an affirmative finding, is within Buie 28, if it he a case admitting of specification. Whether it is such a case generally, as here, appears in argument. The action is one for alleged negligent damage to some electrical apparatus of the plaintiff by reason of its being sprayed by water escaping from a leaky hose in use by the defendant. The defendant now urges, in an effort to avoid the finding, that the plaintiff itself was negligent in the protection of its property and for that reason cannot recover. That item of defence was susceptible of specification. Whether it had legal merit is a different question. The defendant further argues that there was no evidence that the hose involved was owned by the defendant, or that it was being operated by the defendant or its agents, or that the basement in which the damage occurred was in the exclusive control of the defendant. It would seem to be a case admitting of specification, and therefore within the rule.

Rule 28 was born of experience; We do not know how many or which of the particular points now urged were called to the attention of the trial judge; presumably he drew his report and recitals of evidence with an eye to those objections urged upon him. It is not fair to the other side to let mental reservations of new discoveries confront him first in a court of review. Hence the rule. We decline to review the denial of that ruling. For the same reason, the petition to establish the defendant’s draft report is denied.

Petition denied, report dismissed.  