Kulchinsky v. Segal

• Citation: 307 Mass. 571,30 N.E.2d 830
• Parties: KULCHINSKY v. SEGAL.
• Decision Date: 02 January 1941
• Court: United States State Supreme Judicial Court of Massachusetts

307 Mass. 571

30 N.E.2d 830

KULCHINSKY

v.SEGAL.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 2, 1941.

Exceptions from Superior Court, Essex County; Donahue, Judge.

Action by Aaron Kulchinsky, administrator, against Max Segal upon an account annexed for goods sold and delivered to the defendant by the plaintiff's intestate. Verdict for plaintiff for $512.60, and defendant brings exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

R. Kulchinsky, of Lynn, for plaintiff.

H. C. Mamber and E. H. Borofski, both of Lynn, for defendant.

LUMMUS, Justice.

In this action upon an account annexed for goods sold and delivered to the defendant by the plaintiff's intestate, an account book of the latter, showing $505.40 to be due, was received in evidence under G.L.(Ter.Ed.) c. 233, § 78. The defence was that the indebtedness was discharged by merchandise accepted by the plaintiff's intestate. There was a verdict for the plaintiff, and the case is here on the defendant's exception to the admission of evidence.

The evidence in question was the testimony of a witness for the plaintiff that eight weeks before the plaintiff's intestate died he told the witness that the defendant owed him more than $500, had paid $5 on account, and had promised to pay by instalments. The judge found that the conditions of G.L. (Ter.Ed.) c. 233, § 65, were satisfied.

The defendant contends that the evidence was inadmissible because it was a conclusion to which the plaintiff's intestate would not have been permitted to testify if living.

In general, the statute making admissible the declarations of deceased persons does not remove any ground of objection except the rule against hearsay. Pappathanos v. Coakley, 263 Mass. 401, 407, 161 N.E. 804. But the statute is construed liberally (Matter of Keenan, 287 Mass. 577. 581,192 N.E. 65, 96 A.L.R. 679), and makes admissible every declaration within its terms made upon personal knowledge. Nagle v. Boston & Northern Street Railway Co., 188 Mass. 38, 40, 73 N.E. 1019. More opinion based upon facts not known to the declarant through his own senses is inadmissible. Little v. Massachusetts Northeastern Street Railway, 223 Mass. 501, 504, 112 N.E. 77;Hasey v. Boston, 228 Mass. 516, 117 N.E. 827;Keough v. Boston Elevated Railway Co., 229 Mass. 275, 278, 118 N.E. 524;Barney v. Magenis, 241 Mass. 268, 272, 135 N.E. 142.

Indebtedness is not mere opinion, but fact capable of being within personal knowledge, even thought it may depend upon or be mixed with law. Wigmore, Evid., 3d Ed., § 1960; Windram v. French, 151 Mass. 547, 551, 24 N.E. 914,8 L.R.A. 750;Haskell v. Merrill, 179 Mass. 120, 123, 60 N.E. 485;Reggio v. Warren, 207 Mass. 525, 533-536, 93 N.E. 805, 32 L.R.A., N.S., 340, 20 Ann.Cas. 1244;Kerr v. Shurtleff, 218 Mass. 167, 173, 105 N.E. 871;MacLeod v. Davis, 290 Mass. 335, 338, 195 N.E. 315;Lyman v. Romboli, 293 Mass. 373, 199 N.E. 916. Where indebtedness or some similar concept constitutes the vital issue, a witness commonly is required to state the basic facts rather than the ultimate conclusion. Wigmore thinks that the courts have required too much analysis. Wigmore, Evid., 3d Ed., § 1960. The point is more of form than of substance. In Mulhall v. Fallon, 176 Mass. 266, 267, 57 N.E. 386,54 L.R.A. 934, 79 Am.St.Rep. 309, Holmes, C.J., said, ‘The extent to which particulars may be summed up in a general expression is a matter involving more or less discretion, and cannot be disposed of by the suggestion that the general expression involves the conclusion which the jury is to draw, or that it is law rather than fact.’ In a case like the present, where the declarant is dead, the evidence should not be lost merely because he stated the conclusion rather than the details that might be required of a witness. See, also, National Granite Bank v. Tyndale, 179 Mass. 390, 395.

Although we have found no case precisely like the present one, there are cases arising under the statute that are like this in principle. In Dow v. Dow, 243 Mass. 587, 594, 595, 137 N.E. 746, it was...