McCabe v. City of Chelsea

• Decision Date: 04 January 1929
• Citation: 163 N.E. 255,265 Mass. 494
• Parties: McCABE et al. v. CITY OF CHELSEA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 494

163 N.E. 255

McCABE et al.

v.CITY OF CHELSEA.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1929.

Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.

Petition by Josephine E. McCabe and others for assessment of damages caused by the taking of land by the City of Chelsea. Verdict for petitioners, and respondent brings exceptions. Exceptions sustained.

R. W. Frost and D. J. Triggs, both of Boston, for petitioner.

C. Richmond, of Boston, for respondent.

RUGG, C. J.

This is a petition for the assessment of damages caused by the taking of land of the petitioners by the city of Chelsea for memorial purposes. The exceptions relate solely to the admission and exclusion of evidence.

A witness called by the plaintiff, who qualified as an expert in real estate values, having testified on cross-examination that, ‘as you went towards Bellingham Square and beyond, land became more valuable,’ was allowed in redirect examination to give his opinion as to the value of a particular lot known as the Splendid Restaurant land. Scarcely anything is better settled in the trial of cases of this nature than that evidence of mere opinion as to the value of land must be confined exclusively to the subject as to which damages are claimed. Wyman v. Lexington & W. C. R. Co., 13 Metc. 316, 327;Thompson v. Boston, 148 Mass. 387, 19 N. E. 406;Haven v. County Commissioners, 155 Mass. 467, 471, 29 N. E. 1083;Beale v. Boston, 166 Mass. 53, 56, 43 N. E. 1029;Old Colony Railroad v. F. P. Robinson Co., 176 Mass. 387, 390, 57 N. E. 670. The inquiry on cross-examination did not authorize the introduction of this evidence. It ought to have been excluded.

It is the duty of the excepting party to show either expressly or by fair inference that he was harmed by the admission of incompetent evidence. Cecconi v. Rodden, 147 Mass. 164, 169, 16 N. E. 749;Posell v. Herscovitz, 237 Mass. 513, 130 N. E. 69;Commonwealth v. McIntosh, 259 Mass. 388, 39§, 156 N. E. 712. We think that it cannot be said that the admission of this evidence was harmless error. It was manifestly incompetent. Seemingly the opinion of the witness was that the Splendid Restaurant land was worth considerably in excess of the damages assessed by the jury for the land taken. If the jury gave any weight to the evidence, it operated against the interest of the defendant. It cannot be assumed that they disregarded it. This exception must be sustained.

The sale price of the Splendid Restaurant land was admitted in evidence. That land was situated on Broadway at or near the business center of Chelsea, distant about two hundred and fifty feet from the land taken, which was on Shurtleff street and about one hundred to one hundred and fifty feet back from Broadway. At the time of sale the purchaser of that land had executed a twenty-five year lease to the owners of the Splendid Restaurant which, according to some testimony, might make the land more valuable. There was no lease on the land taken. It long has been settled that in cases of this nature evidence is admissible of sales of land in the vicinity; similar in essentials to the land in question, and reasonably near to the taking in point of time. It is largely, though...