Ford v. City of Worcester

• Decision Date: 04 November 1959
• Citation: 162 N.E.2d 264,339 Mass. 657
• Parties: John P. FORD et al. v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 264

162 N.E.2d 264

339 Mass. 657

John P. FORD et al. v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 21, 1959.

Decided Nov. 4, 1959.

Charles W. Proctor, Worcester, for petitioners.

Harry J. Meleski, City Sol., and Henry P. Grady, Asst. City Sol., Worcester, for respondent.

Before WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

This is a petition under G.L. c. 79 to assess damages for the city's taking of 66.57 acres of a tract of land containing 71.79 acres, owned by the two petitioners, Mr. and Mrs. Ford. On the remaining 5.22 acres were the petitioners' house and barn, and certain outbuildings and poultry buildings. Ford had conducted a poultry farm on the premises from 1944 to 1948 when he had 1500 laying hens. In 1949, and again in 1950, he was forced to sell his hens. He then 'went back to working for wages.' The jury found damages of $5,940. The petitioners' bill of exceptions raises principally exceptions to the exclusion of evidence. The case has previously been before this court. See Ford v. City of Worcester, 335 Mass. 723, 142 N.E.2d 327.

1. The petitioners' counsel made no offers of proof when evidence was excluded. It is argued that the trial judge in effect had waived all offers of proof in excluding a question early in the trial. One Boucher, an agricultural agent from the county extension service, had testified that there 'were several kinds of poultry farms.' He was then asked, 'Can you tell me what they are?' The petitioners claimed an exception to the trial judge's refusal to allow the question. The petitioners' counsel 'then asked if the court would like to have counsel make an offer of proof.' The judge replied, 'I simply excluded the question.'

This statement of the judge was not a refusal to entertain an offer of proof. It was at most an indication that counsel must determine whether to make an offer of proof or to proceed with another question. In the absence of offers of proof of questions asked on direct examination of witnesses, there is no showing that it was prejudicial to refuse to admit most of the excluded evidence. See Smethurst v. Barton Square Independent Congregational Church, 148 Mass. 261, 266-267, 19 N.E. 387, 2 L.R.A. 695; Ross v. Nourse, 330 Mass. 666, 670, 116 N.E.2d 323; Brush Hill Dev., Inc. v. Commonwealth, 338 Mass. 359, 364, 155 N.E.2d 170. Accordingly, there is occasion to discuss here only those few exclusions of testimony, mentioned below, as to which it can plausibly be argued that no offer of proof was necessary.

2. No offer of proof, of the evidence expected in answer to a question asked on direct examination, has been required in certain cases where the trial judge in effect has treated the witness as not qualified to testify at all on a particular issue or has prevented all testimony on that issue. Muskeget Island Club v. Nantucket, 185 Mass. 303, 306, 70 N.E. 61; Old Silver Beach Corporation v. Inhabitants of Falmouth, 266 Mass. 224, 226-227, 165 N.E. 1; Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority, 335 Mass. 189, 199, 138 N.E.2d 769. See Brush Hill Dev., Inc. v. Commonwealth, 338 Mass. 359, 365-366, 155 N.E.2d 170; Joseph De Vries & Sons, Inc. v. Commonwealth, Mass., 162 N.E.2d 269; Cf. Southwick v. Massachusetts Turnpike Authority, Mass., 162 N.E.2d 271, where, because offers of proof were in fact made, it was possible to appraise the effect of the exclusion of excluded testimony.

The rule of the decisions just cited clearly had no relevance to the testimony of certain witnesses called by the petitioners. Ford himself, as one of the petitioning owners, was permitted to testify at length about his opinion of the value of the property before and after the taking and to give reasons for that opinion. He was allowed to state that '[d]epreciation in the value of the homestead * * * [$10,000 in his opinion] was due to the fact that he had only 5 1/4 acres left which was insufficient for a poultry farm'; to give in great detail the history of his poultry venture; and to describe the nature of improvements made by him on the property and various elements of value in his original property, including the quantities (see Kinney v. Commonwealth, 332 Mass. 568, 571-572, 126 N.E.2d 365; cf. Davenport v. Haskell, 293 Mass. 454, 458, 200 N.E. 409; Lawrence v. O'Neill, 317 Mass. 393, 396-397, 58 N.E.2d 140; Cogliano v. Commonwealth, 334 Mass. 354, 357-360, 135 N.E.2d 648), but not the value, of standing timber. He was not treated as entirely unqualified to testify upon value nor was he prevented from testifying at all on particular relevant facts which might reasonably affect his opinion no the ultimate issues of (a) the market value of land taken and (b) the market value before and after the taking of the petitioners' remaining land. See Southwick v. Massachusetts Turnpike Authority, Mass., 162 N.E.2d 271. In these circumstances, counsel was not excused, by the principle of the cases earlier cited, from the requirement that he support each exception by an offer of proof. In the absence of such offers, we cannot say that the petitioners were harmed by the refusal to permit any questions asked of Ford.

Most of the testimony of the agricultural agent, already mentioned was excluded subject to the petitioners' exceptions, and he was in effect prevented from testifying on several issues. He admittedly was not an 'appraiser' of chicken farms although 'familiar with * * * [their] purchase and sale.' He was obviously qualified, however, to testify about the adaptability of the property, before and after the taking, for chicken farming. Nevertheless, he was not permitted to describe the 'several kinds of poultry farms'; to indicate whether (after the taking) the property was sufficient to support a poultry farm; or to state the number of hens required for 'an adequate poultry farm for laying hens,' or the area required for such a farm, or the capacity for laying hens of the buildings owned by the petitioners. Recalled later as a witness, he was not permitted to state 'how much range would be necessary * * * [for] a flock [of laying hens] of the size * * * adapted for the buildings'; or to give his opinion about 'the adaptability of the land remaining * * * for a commercial chicken business' or whether this remaining land 'could have been sold * * * for a chicken farm.'

The premises had been used for a chicken farm prior to 1950 and still contained buildings which had been used for chicken farming. When the agricultural agent testified, however, apart from the fact of former use for chicken farming (which had been established by Ford's testimony)...