Cahalane v. Proust

• Decision Date: 07 March 1956
• Citation: 132 N.E.2d 660,333 Mass. 689
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Annie CAHALANE v. Samuel PROUST et al.

Page 660

132 N.E.2d 660

333 Mass. 689

Annie CAHALANE v. Samuel PROUST et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 7, 1956.

Decided March 7, 1956.

Joseph Gorfinkle, Boston, for plaintiff.

Sturtevant Burr, Boston, for defendants.

Before QUA, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

This action of tort for personal injury to the plaintiff by falling on steps of property owned by the defendants resulted in a verdict for the defendants. The plaintiff excepted to the judge's charge to the jury, in general, and specifically to the statements 'Counsel know what they have to prove to get to the jury' and 'Do you suppose anybody talked with them afterwards?' The exceptions to the charge must be sustained.

In a number of cases we have held that a general exception to an entire charge cannot be sustained. See, for example, Commonwealth v. Duncan, 250 Mass. 405, 407, 145 N.E. 561; Commonwealth v. McDonald, 264 Mass. 324, 335, 162 N.E. 401; Perry v. Boston Elevated Railway Co., 322 Mass. 206, 208, 76 N.E.2d 653. Other cases have stated the rule applicable to a general exception to a part of a charge to be that it is not sustainable unless substantial injustice clearly appears. See Callahan v. Fleischman Co., 262 Mass. 437, 438, 160 N.E. 249; Mansell v. Larsen, 311 Mass. 607, 613, 614, 42 N.E.2d 520, and cases cited. We construe the general exception to put before us the full context of the sentences referred to in the specific exceptions.

The issue to which the relevant parts of the charge were addressed was whether when the plaintiff fell there was a hole in the steps. The plaintiff's sister and the latter's son, both of whom testified to the fact of the hole, had made and signed prior inconsistent statements. Each prior statement was in the hand of an investigator and had been signed by the witness after the witness had written that the statement had been read and was true.

The relevant parts of the charge are set forth in the margin. ¹ So far as the charge suggested to the jury the possibility of their finding that a part of the testimony was false it did not contravene G.L. (Ter.Ed.) c. 231, § 81. ('The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law.') Our decisions have consistently upheld the action of trial judges in putting before the jury possible conclusions warranted by the evidence in language that is 'comprehensively strong, rather than hesitatingly barren, or ineffective.' Whitney v. Wellesley & Boston Street Railway Co., 197 Mass. 495, 502, 84 N.E. 95; Plummer v. Boston Elevated Railway Co., 198 Mass. 499, 515, 84 N.E. 849; Bernasconi v. Bassi, 261 Mass. 26, 27-28, 158 N.E. 341; Hohman v. Hemmen, 280 Mass. 526, 529, 182 N.E. 850; Hathaway v. Checker Taxi Co., 321 Mass. 406, 410, 73 N.E.2d 603, and cases cited. And it is within the wide discretion of the judge to determine what parts of the evidence should be referred to. Inevitably there will be emphasis by selection and by reference but if the jury draw conclusions therefrom it will be primarily the facts of the case, properly marshalled for their review, and not the personal views of the judge, which will be speaking to them.

The charge here, however, went beyond a strong statement of possible conclusions open to the jury or a marshalling of relevant facts with appropriate selection and emphasis. It told the jury in unmistakable terms that the judge thought the witnesses to whom he was referring were not telling the truth and that this may have been because they had learned that on their stories as given to the investigator there could be no recovery.

The remark 'Counsel know what they have to prove to get to the jury' must be considered with the later statements 'Do you suppose anybody talked with them afterwards? * * * We haven't any case unless we can say that there was a defect in the steps * * *. Is that why they come in here and testify absolutely different from what they wrote down in their written statements which they signed?' and with the statements 'I was tremendously interested in Mr. Cotter's statement, 'I have learned by lesson.' Now, what did he mean by that? * * * Did he learn his lesson perhaps on the witness stand? I don't know whether he learned it there from what he remembered about this statement, or whether he learned his lesson when he found out that falling down those steps was not enough, that there must be a defect.'

In context the repetition of statements to the effect that this is a 'tremendously interesting case' and that the witnesses were 'a nice group of people' served to emphasize the references to inconsistencies and motive for change in stories and further to convey the judge's own conclusions about the case. The repeated characterization of the witnesses as 'nice' people must have been understood to state that the judge thought that the witnesses were in fact bad people as manifested by what they had done as outlined by the judge in the charge.

We have held that 'It is not every expression in a charge falling short of our approval which is ground for sustaining exceptions.' Commonwealth v. McDonald, 264 Mass. 324, 336, 162 N.E. 401, 402. That case shows that where, as here, there are strong reasons for believing that one aspect of the case should be emphasized a charge embodying such emphasis will be sustained even though 'going to the verge of propriety' 264 Mass. at page 335, 162 N.E. at page 402. Notwithstanding aspects of similarity between the charge there reviewed and the charge before us, we are constrained to hold that what was said here went too far.

In Commonwealth v. Foran, 110 Mass. 179, 180, in sustaining exceptions to the charge, we said, 'Although an instruction was added that 'the whole matter was before the jury to give such weight to the testimony as they saw fit,' yet the effect of the whole instructions was to throw the weight of the judge's opinion in the scales against the defendant.' The words used in Federal National Bank v. O'Keefe, 267 Mass. 75, 83, 165 N.E. 897, 900, are also applicable. 'A careful study of the entire charge constrains us to the belief that the jury must have perceived the attitude, the bent of the mind of the judge, and that in all human probability they entered upon their final deliberations in a state of mind which was biased and interested.' And see Hayes v. Moulton, 194 Mass. 157, 165, 80 N.E. 215, and Commonwealth v. Barry, 9 Allen 276.

There were, likely, strong reasons for the judge holding the view of the case which we think his charge revealed to the jury, but if we are to determine the propriety of the charge to the jury by our view of the probable facts we shall to a degree be substituting judges for the jury as fact finders.

The question of the constitutionality of G.L. (Ter.Ed.) c. 231, § 81, has not been argued and we do not reach it. See Federal National Bank v. O'Keefe, 267 Mass. 75, 82-83, 165 N.E. 897; Whitney v. Wellesley & Boston Street Railway Co., 197 Mass. 495, 502, 84 N.E. 95; Langan v. Pianowski, 307 Mass. 149, 152, 29 N.E.2d 700; Beers v. O'Brien, 316 Mass. 532, 55 N.E.2d 931; 19 Mass.L.Q. (No. 1) 103; 21 B.U.L.Rev. 43. Whether under art. 29 of the Declaration of Rights or the statute, we think that parties whose witnesses may have lied and whose case may have other suspicious aspects are entitled as are other litigants to have all the relevant facts including the possible bad actions of parties or their witnesses determined by the jury without such direct indication of the judge's personal conclusions as was here given.

Exceptions sustained.

1 'If you find there was a condition in that step such as they described, I have no hesitation in saying it is a legal defect. From my point of view, I don't know how you feel, this is a tremendously interesting case.

'We have a nice group of people here. You will have to determine whether there was a defect there as described by Mr. and Mrs. Cotter; but first, before you take that up, there are other things to consider. Mrs. Cotter said the steps were patched up by the landlord from time to time. Now, if he patched up those steps from time to time, I ask you to consider whether he let an indentation four or five inches long and an inch and a half deep remain there month after month, or whether he would let a hole in that step greatly increase for a...