Catania v. Emerson Cleaners, Inc.
| Decision Date | 25 July 1972 |
| Citation | 362 Mass. 388,286 N.E.2d 341 |
| Parties | Angeline CATANIA v. EMERSON CLEANERS, INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Christopher H. Worthington, Boston, for plaintiff.
John J. Harrington, Fall River, for defendant.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, and HENNESSEY, JJ.
In this action of tort the plaintiff claims injuries sustained in a fall on the defendant's premises in 1966. Her declaration alleges the defendant's negligence in failing to warn her of a dangerous condition located in an area where she was present as a business invitee. The case was first tried in a District Court upon a transfer under G.L. c. 231, § 102C, and there was a decision for the defendant. This decision was introduced in evidence at a Superior Court trial upon a retransfer, together with the District Court judge's memorandum of findings of fact. The admission in evidence of this memorandum was improper. See § 102C. The plaintiff has alleged two exceptions relating to the exclusion from evidence at the Superior Court trial of a signed statement of the defendant's co-manager, who was a witness to the accident. The co-manager gave the statement approximately eight months after the accident. The case was tried in the Superior Court more than four years after the accident. Without detailing them, it can be stated that there were inconsistencies between such statement and the testimony of the co-manager at the Superior Court trial. He agreed that his memory was better at the time he gave the statement than it was at the trial, and that his true recollection was recorded in the statement. We think that the statement was admissible to impeach the co-manager's credibility (Wheeler v. Howes, 337 Mass. 425, 150 N.E.2d 1), and also as a past recollection recorded. Fisher v. Swartz, 333 Mass. 265, 130 N.E.2d 575, which contains a full discussion of 'past recollection recorded.'
The statement was at first excluded, but was later admitted and marked as an exhibit. However, after the close of the evidence, the statement was retracted as an exhibit by the judge and therefore was not shown or read to the jury. This action by the judge constituted prejudicial error. While a judge has a right to vary his rulings at any time prior to the closing of a trial, such variance must take place in such a manner as not to cause harm to a party. Ferris v. Ray Taxi Serv. Co., 259 Mass. 401, 405, 156...
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Com. v. Gonzalez
...Mass. at 82, 417 N.E.2d 950; Commonwealth v. Cavanaugh, 7 Mass.App.Ct. at 35 n. 1, 385 N.E.2d 1006. Cf. Catania v. Emerson Cleaners, Inc., 362 Mass. 388, 390, 286 N.E.2d 341 (1972).10 If the defendant's argument in this respect had even slight merit, the judge's clear and strong instruction......
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...283 Mass. 82, 85, 186 N.E. 46, 47 (1933). There was no such surprise or hardship in this case (contrast Catania v. Emerson Cleaners, Inc., 362 Mass. 388, 390, 286 N.E.2d 341 (1972)) as the exclusion followed momentarily the admission of the report.b. Mass.Adv.Sh. (1978) 1831, 1844-1846.c. M......
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...with the implication that the witness meant it was true at the time of the trial. Similarly, in Catania v. Emerson Cleaners, Inc., 362 Mass. 388, 389-390, 286 N.E.2d 341, 342 (1972), the witness agreed that "his memory was better at the time he gave the statement than it was at the trial . ......
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