Middlesex Supply, Inc. v. Martin & Sons, Inc.

• Decision Date: 31 May 1968
• Parties: MIDDLESEX SUPPLY, INC. v. MARTIN & SONS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 692

237 N.E.2d 692

354 Mass. 373

MIDDLESEX SUPPLY, INC. v. MARTIN & SONS, INC.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 3, 1968.

Decided May 31, 1968.

Philip D. Epstein, Boston (Norton A. Goldstein, Boston, with him), for plaintiff.

Richard K. Donahue, Lowell, for defendant.

Before WILKINS, C.J., and WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

This action of tort was to recover for the loss of personal property (count 1) and a shed (count 3) in a fire allegedly due to the defendant's negligence. There was a verdict for the defendant on each count. The only exception is to the admission in evidence of a deceased deputy fire cheif's report.

On July 5, 1962, two welders employed by the defendant drove their truck, which had an oxygen acetylene torch and other apparatus for cutting pipe, onto the plaintiff's premises. There they bought a pipe which was too long to be transported on the truck. The welders started to cut the pipe with the torch not more than eight feet from the shed. Sparks flew in all directions, including under the shed. During the cutting the defendant's employees took no precautions, such as spreading sand in the vicinity or having available asbestos cloth or a hose or a bucket for water. It took about fifteen minutes to cut the pipe. The defendant's employees stayed for at least another fifteen to twenty minutes checking the area, but did not check under the shed to look for combustible material or sparks. There were one or two grass fires in the immediate area while they were cutting.

Subject to the plaintiff's exception there was admitted in evidence a report of operation of the fire department at this fire. This was prepared and signed by Assistant Chief James F. Grantz, deceased at the time of trial. The report stated the building was one story, of wood construction, and used as a storehouse; and 'Probable cause, carelessly discarded cigarette.'

Had Assistant Chief Grantz been living and available for cross-examination, his report, by itself, giving careless smoking as the cause of the fire would not have been admissible. Greenway Wood Heel Co. Inc. v. John Shea Co., 313 Mass. 177, 185, 46 N.E.2d 746. See Commonwealth v. Slavski, 245 Mass. 405, 416, 140 N.E. 465. But since he was deceased at the time of trial, the defendant contends that the report is admissible as the declaration of a deceased person under G.L. c. 233, § 65 (as amended through St.1943, c. 232, § 1). ¹ The defendant further contends that, as nothing to the contrary appears, the admission of the evidence imports a preliminary finding of the essential facts by the trial judge. See Old Colony Trust Co. v. Shaw, 348 Mass. 212, 216, 202 N.E.2d 785. This rule does not apply, however, where the facts concerning the admission are not in dispute and the declaration itself shows that it is not within the statute. Tafralian v. Metropolitan Life Ins. Co., 316 Mass. 429, 431, 55 N.E.2d 777. The statute making admissible the declarations of deceased persons does not remove any...