Case Summary: Mitchell v. Pierce; Abalene Pest Control Service, Inc., et al.

Factual and Procedural Background

After a trial in the Superior Court, a jury returned verdicts in the original action for the plaintiffs, assessing damages of $10,000, and in the third-party action found against third-party defendants Abalene Pest Control Service, Inc. (Abalene) and Gordon O. Parker (Parker), assessing damages of $5,000 against each. The third-party defendants appealed from the judgments entered on those verdicts and from orders denying their motions for judgment notwithstanding the verdicts and for a new trial. The record contained evidence that the third-party plaintiffs were unaware that a barn on their property was infested with wood-boring insects; that they had engaged the third-party defendants to inspect the property (including the barn) for such insects; that they relied on an inspection certificate issued by Abalene stating that "there was no evidence of termite or other wood-destroying infestations in the . . . property" in selling the premises; and that the third-party defendants were negligent in conducting the inspection. A motion for directed verdict by the third-party defendant Carchedi was allowed at the conclusion of the third-party plaintiffs' case.

Legal Issues Presented

Whether the motions for directed verdict and for judgment notwithstanding the verdicts should have been allowed given the evidence presented.
Whether the trial judge erred in denying the motion to strike the expert testimony of Robert Myles on damages.
Whether exclusion of proposed testimony by an Abalene employee regarding prevailing industry practice as to the duration of inspection certificates was erroneous.
Whether the judge's charge to the jury adequately instructed on the substantive legal principles in both the original and third-party claims.
Whether requested instruction number 12 was correctly denied as an erroneous and incomplete statement of the law.
Whether the denial of the motion for a new trial constituted an abuse of discretion.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972)	Support for the familiar principle that certain evidence warrants submission of a claim to the jury.	Cited as authority that the evidence before the court warranted submission of the third-party claim to the jury.
DiMarzo v. S. P. Realty Corp., 364 Mass. 510, 514 (1974)	Support for the familiar principle that certain evidence warrants submission of a claim to the jury.	Cited in conjunction with other cases to support submission of the third-party claim to the jury.
Alholm v. Wareham, 371 Mass. 621, 627 (1976)	Support for the familiar principle that certain evidence warrants submission of a claim to the jury.	Cited with Raunela and DiMarzo to justify sending the third-party claim to the jury.
Bradley v. Fessenden, 349 Mass. 429 (1965)	Principle that issues not properly raised below will not be considered on appeal.	Applied to decline consideration of alleged inconsistencies in the verdicts because they were not properly raised below.
Power Serv. Supply, Inc. v. E.W. Wiggins Airways, Inc., 9 Mass. App. Ct. 122, 130 (1980)	Admissibility of expert testimony where there is a sufficient factual basis; objections go to weight rather than admissibility.	Cited to support the ruling that denial of the motion to strike the expert testimony was correct because a factual basis existed for the testimony.
Valade v. Consolidated Builders, Inc., 3 Mass. App. Ct. 519, 521 (1975)	Standard that a jury charge should be read as a whole when evaluating adequacy.	Relied upon to conclude the judge's charge, read as a whole, adequately instructed the jury on leading points.
Bell v. Dorchester Theatre Co., 308 Mass. 118, 123 (1941)	Requirement that the judge properly instruct the jury on the leading points of the case.	Cited to support the conclusion that the judge adequately discharged his responsibility in instructing the jury.
Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974)	Requirement to object to the charge or request instructions to preserve appellate review of omissions or errors in the charge.	Applied to reject defendants' contentions about the sufficiency of the charge due to their failure to request or object to instructions.
Narkin v. Springfield, 5 Mass. App. Ct. 489, 491 (1977)	Failure to request or object to instructions precludes later challenges.	Cited with other authorities to support rejection of the defendants' charge-related contentions.
Cooke v. Walter Kidde Co., 8 Mass. App. Ct. 902, 904 (1979)	Failure to request or object to instructions precludes later challenges.	Used as authority for rejecting the defendants' contentions about the jury charge due to lack of preservation.
Commonwealth v. Monahan, 349 Mass. 139, 170 (1965)	Principle that an instruction may be erroneous and incomplete as a matter of law.	Cited to support denial of requested instruction number 12 as erroneous and incomplete.
Loschi v. Massachusetts Port Authy., 361 Mass. 714, 715-716 (1972)	Standard for appellate review of a trial judge's denial of a motion for a new trial (discretionary review).	Cited to support the conclusion that no abuse of discretion was shown in denying the motion for a new trial.
Reni v. Courtney, 4 Mass. App. Ct. 235, 237-238 (1976)	Standard for appellate review of denial of a new trial.	Cited in concluding that the trial judge's denial of the motion for a new trial did not constitute an abuse of discretion.

Court's Reasoning and Analysis

1. Motions for directed verdict and for judgment notwithstanding the verdicts: The court concluded there was sufficient evidence—specifically evidence that the third-party plaintiffs were unaware of the barn's infestation, had engaged the third-party defendants to inspect the property, relied on Abalene's inspection certificate, and that the defendants were negligent in conducting the inspection—to submit the third-party negligence claim to the jury. Each contention advanced by the third-party defendants presented questions of fact for the jury; therefore the judge correctly denied the motions. The court noted that claimed inconsistencies in the verdicts were not preserved below and thus were not considered.

2. Expert testimony on damages: The judge properly denied the motion to strike the testimony of Robert Myles, a carpenter and general contractor, because there was a sufficient factual basis for his testimony about the barn's damage and repair cost estimates. Any objections affected the testimony's weight rather than admissibility.

3. Exclusion of industry-practice testimony: Given the terms of the written inspection certificate and the testimony of witness Douglas Locke, the court found no error in excluding proposed testimony by an Abalene employee regarding prevailing industry practice as to the duration of inspection certificates.

4. Jury charge: Read as a whole, the judge's charge adequately instructed the jury on the substantive legal principles in both the original and third-party claims. The third-party defendants' failure to request instructions on matters they now claim were omitted, and their failure to object to the charge as given, provided independent grounds for rejecting their contentions about the sufficiency of the charge.

5. Requested instruction number 12: The judge correctly denied this requested instruction because it was an erroneous and incomplete statement of the law; the defendants did not object to the denial or seek further instructions on agency questions.

6. Motion for new trial: The court found no abuse of discretion in the judge's denial of the motion for a new trial.

Holding and Implications

Orders denying motions for a new trial and judgment notwithstanding the verdict affirmed. Judgments affirmed.

Implications: The appeals from the judgments and from the orders denying JNOV and a new trial were unsuccessful — the trial court's rulings were upheld and the verdicts and judgments stand. The opinion does not discuss broader legal consequences beyond the direct effect on the parties.

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MICHAEL B. MITCHELL another vs. KENNETH L. PIERCE another; ABALENE PEST CONTROL SERVICE, INC. others, third-party defendants. Sally A. Mitchell. Mary Audrey Pierce. Dominick J. Carchedi and Gordon O. Parker. A motion for directed verdict by the third-party defendant Carchedi was allowed at the conclusion of the third-party plaintiffs' case.

After a trial in the Superior Court, a jury returned verdicts which, in the original action, found for the plaintiffs and assessed damages in the amount of $10,000 and, in the third-party action, found against the third-party defendants, Abalene Pest Control Service, Inc. (Abalene), and Gordon O. Parker (Parker), and assessed damages against each in the amount of $5,000. The third-party defendants have appealed from the judgments entered on the verdicts and from orders denying their motions for judgment notwithstanding the verdicts and for a new trial. There was no error.

1. The motions for a directed verdict and for judgment notwithstanding the verdicts were properly denied. There was evidence that the third-party plaintiffs were unaware that the barn on their property was infested with wood-boring insects; that they had engaged the third-party defendants to inspect their property (including the barn) for the presence of such insects; that they had relied upon the inspection certificate issued by Abalene which stated that "there was no evidence of termite or other wood-destroying infestations in the . . . property" in selling the premises; and that the third-party defendants were negligent in the manner in which they conducted the inspection. On familiar principles, this evidence warranted submission of the third-party claim to the jury. See Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972); DiMarzo v. S. P. Realty Corp., 364 Mass. 510, 514 (1974); Alholm v. Wareham, 371 Mass. 621, 627 (1976). Each of the contentions argued by third-party defendants as entitling them to the allowance of their motions as a matter of law was correctly rejected, as each presented a question or questions of fact to be determined by the jury under instructions on the applicable law. Questions as to possible inconsistencies underlying the verdicts were not properly raised below and, as a result, are not considered here. Cf. Bradley v. Fessenden, 349 Mass. 429 (1965).

2. It was not error to deny the motion to strike the expert testimony of Robert Myles on the issue of damages. This witness, a carpenter and general contractor, testified to the extent of damage in the barn and the estimated cost of labor and materials to restore it to good repair. There was a sufficient factual basis to permit consideration of the testimony by the jury, and the objections lodged against it affected its weight rather than its admissibility. Power Serv. Supply, Inc. v. E.W. Wiggins Airways, Inc., 9 Mass. App. Ct. 122, 130 (1980), and cases cited.

3. In view of the terms of the written inspection certificate and the testimony of the witness Douglas Locke, no error has been shown in the judge's exclusion of the proposed testimony by one of Abalene's employees as to the prevailing practice in the pest control industry with reference to the duration of inspection certificates.

4. Read as a whole ( Valade v. Consolidated Builders, Inc., 3 Mass. App. Ct. 519, 521 [1975]), the judge's charge on the substantive legal principles involved in both the original and third-party claims adequately discharged his responsibility to "properly instruct the jury on the leading points of the case." Bell v. Dorchester Theatre Co., 308 Mass. 118, 123 (1941). The failure of the third-party defendants to include in their requested instructions requests on any of the matters now claimed to have been omitted from the charge, and their failure to object to any part of the charge given, constitute separate grounds for rejecting their present contentions directed to the sufficiency of the charge. See Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974); Narkin v. Springfield, 5 Mass. App. Ct. 489, 491 (1977); Cooke v. Walter Kidde Co., 8 Mass. App. Ct. 902, 904 (1979).

5. The judge correctly denied requested instruction number 12 as an erroneous and incomplete statement of the law ( Commonwealth v. Monahan, 349 Mass. 139, 170 [1965]), a proposition undoubtedly recognized by the third-party defendants when they failed to take an objection to the denial of the instruction or to seek further instructions on the various agency questions.

6. No abuse of discretion has been demonstrated in any other respect with regard to the judge's denial of the motion for new trial. Loschi v. Massachusetts Port Authy., 361 Mass. 714, 715-716 (1972). Reni v. Courtney, 4 Mass. App. Ct. 235, 237-238 (1976).

Orders denying motions for a new trial and judgment notwithstanding the verdict affirmed. Judgments affirmed.

MITCHELL v. PIERCE