Pappathanos v. Coakley

• Decision Date: 28 May 1928
• Citation: 263 Mass. 401,161 N.E. 804
• Parties: PAPPATHANOS v. COAKLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 401

161 N.E. 804

PAPPATHANOS

v.COAKLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1928.

Exceptions from Superior Court, Suffolk County; Bishop, Judge.

Action by Oda Pappathanos against Daniel H. Coakley. On plaintiff's exceptions and appeal from decree of dismissal and from interlocutory decrees or orders refusing to vacate allowance of motion for framing issues to jury and refusing to take bill as confessed. Exceptions overruled, and orders and decrees affirmed.William H. Garland, of Boston, for plaintiff.

John P. Feeney and Thomas H. Mahony, both of Boston, for defendant.

WAIT, J.

After trial to a jury upon issues framed in the superior court, hearing upon the merits by a single judge of that court, and entry of a final decree dismissing the bill with costs, this cause is before us upon plaintiff's bill of exceptions claimed in the course of the jury trial and her appeal from the final decree, and from interlocutory decrees or orders made January 4, 1926, refusing to vacate the allowance of a motion for framing issues to a jury and refusing to take the bill as confessed.

The issues to a jury were allowed properly.

A bill for an accounting by a fiduciary is within the general jurisdiction of equity, Dunne v. Cunningham, 234 Mass. 332, 125 N. E. 560; and although in such cases no absolute right to a jury trial exists, Parker v. Simpson, 180 Mass. 334, 62 N. E. 401, the court has power, even of its own motion, to direct jury issues if in its judgment desirable. See Farnham v. Lenox Motor Car Co., 229 Mass. 478, 482, 118 N. E. 874.

No fact is set out which indicates abuse of discretion.

The bill of exceptions presents for determination whether the plaintiff has been prejudiced by the exclusion and admission of evidence and by the refusal to instruct the jury as requested. The bill alleged, and the plaintiff sought, a finding that the defendant, in March of 1918, received $150,000 in cash from one Baker, then acting as counsel for a person known throughout the trial as Mr. Blank. Baker died in November, 1919. A paper, purporting to be a receipt for $150,000 from Baker, reciting agreements in return for which the money was paid, dated March 26, 1918, and bearing the alleged signature of the defendant, was put in evidence. The defendant testified that the signature was not his and denied receiving the cash. Experts in handwriting on both sides testified that the signature was not the defendant's. Other than the signature, there was no evidence that the defendant signed the paper, had anything to do with it, or that he received $150,000. A witness testified that on March 26, 1918, he procured $150,000 in cash for Mr. Blank, went with him to Baker, saw the money handed to Baker, saw him count it, and heard him say there was $150,000. He was asked:

‘Did Mr. Baker say anything in your presence at the time after he had counted the money as to what he was to do with the money?’

On objection and after conference with the judge, the plaintiff offered to show that:

‘Baker said that the $150,000 must be paid to the woman Oda Pappathanos [the plaintiff] or to her attorney, and that a receipt was to be furnished to Mr. Blank.’

This was excluded. The bill of exceptions recites that the exclusion ‘was not based upon a finding of want of good faith on the part of Baker in making the statement but upon other grounds.’ The plaintiff contends that the exclusion of this evidence was error. No citation of authorities is needed to show that, had Baker been living at the time of trial, this statement of his, made out of court and not in the presence of the defendant, would be inadmissible against the defendant. By G. L. c. 233, § 65, a declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant. The statute has no application to any rule of exclusion except that of hearsay. Horan v. Boston Elevated R. Co., 237 Mass. 245, 129 N. E. 355. If on any other ground the evidence offered is objectionable, the statute does not render it admissible. Evers v. Gilfoil, 247 Mass. 219, 141 N. E. 926. We cannot say the judge was wrong in excluding the evidence as irrelevant, immaterial, and res inter alios when offered against Coakley.

We find no error in the admission of the questions put to the plaintiff in cross-examination. The scope of cross-examination was within the discretion of the judge. Ripley v. Taft, 253 Mass. 490, 149 N. E. 311. The conduct of the plaintiff after 1918 well might affect the finding of the...