Davis v. Hotels Statler Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; COUNIHAN
• Citation: Davis v. Hotels Statler Co., 327 Mass. 28, 97 N.E.2d 187 (Mass. 1951)
• Decision Date: 12 February 1951
• Parties: DAVIS v. HOTELS STATLER CO., Inc. . Argued Nov. 6-8, 1950

Page 187

97 N.E.2d 187

327 Mass. 28

DAVIS v. HOTELS STATLER CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 6-8, 1950.

Decided Feb. 12, 1951.

G. L. Rabb, Boston, C. P. Huse, Jr., Boston, with him, for plaintiff.

P. S. Ratzkoff, Boston, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an action of tort in two counts, one for conscious suffering and one for death of Jacob Davis, the plaintiff's intestate, as the result of an accident on October 16, 1945. The plaintiff alleged that the decedent suffered a cut in his finger while getting a manicure in the barber shop of the defendant. He died suddenly on December 22, 1945, while attending a Christmas office party. He was treated by a physician for the cut and hospitalized for eleven days before being discharged about December 1, 1945. The action was tried to a jury who found for the defendant on both counts. The action is here on exceptions of the plaintiff, approximately thirty-five in number to the admission of evidence and one to the denial of her motion for a new trial. An exception to the admission of a question and answer in the defendant's answers to the plaintiff's interrogatories was not argued by the plaintiff and is treated as waived.

In order to evaluate the exceptions which relate to the admissibility of evidence, they must be considered in the light of all the evidence which bore on the sole issue presented to the jury which was: What was the cause of the death of the decedent? The plaintiff contended that death resulted from infection due to the cut in his finger. The defendant contended that it was the result of a long continued and serious heart ailment. The plaintiff admitted that the decedent had had a mild heart condition but maintained that he had only one slight attack in 1942. The certificate of death of the medical examiner, which was in evidence without objection, pronounced the cause of death as 'coronary sclerosis.'

Approximately ten of the exceptions related to questions put to the plaintiff and her son by the defendant in cross-examination. They fell roughly into three groups, (1) as to their knowledge of a claim and suit by the plaintiff on an accident insurance policy of the decedent; (2) as to their knowledge of a request by the insurance company for an autopsy; and (3) as to their knowledge of the cause of death of the decedent. In most instances the answers of the witnesses were 'No' or 'I don't remember.' In other instances testimony sought by these questions came in unchallenged during subsequent testimony of the plaintiff, which cured the harm, if any, caused by the admission of these questions. Bonnemort v. Gill, 165 Mass. 493, 495, 43 N.E. 299; Thompson v. Cashman, 181 Mass. 36, 62 N.E. 976; Mullin v. Boston Elevated Railway, 185 Mass. 522, 526, 70 N.E. 1021; Newton Construction Co. v. West & South Water Supply District of Acton, 326 Mass. 171, 174-175, 93 N.E.2d 457. In any event, all of these exceptions were taken to questions put by the defendant in cross-examination, and the extent to which cross-examination may go rests in the control and discretion of the judge. Phillips v. Vorenberg, 259 Mass. 46, 73, 156 N.E. 61; Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 523, 167 N.E. 235; Commonwealth v. Beal, 314 Mass. 210, 229, 50 N.E.2d 14. In Campbell v. Ashler, 320 Mass. 475, at page 481, 70 N.E.2d 302, at page 305, it was said, 'The extent to which a party may go in impeaching the testimony of witnesses called by his opponent on matters not vital to the case, as well as the limits of cross-examination in general, are within the control of the trial judge.'

All other exceptions but two relate to questions in direct examination by the defendant to the family doctor of the decedent who was called as a witness by the defendant. The witness was not declared to be hostile but he was, to say the least, nonco-operative. It appeared that the witness had answered questions relating to the physical condition of the decedent in a deposition taken for use in another case in 1947. The defendant had this deposition in its possession and the witness was given an opportunity to see it before he testified. Many of the questions to which exceptions were taken were put to the witness to prove that he had made at other times statements inconsistent with his testimony in this action. G.L.(Ter.Ed.) c. 233, § 23. When the witness failed...