Passanessi v. C. J. Maney Co.
| Decision Date | 24 March 1960 |
| Citation | 340 Mass. 599,165 N.E.2d 590 |
| Parties | Frank D. PASSANESSI v. C. J. MANEY CO., Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edward U. Lee, Boston, for plaintiff.
Arthur M. Gilman, Boston, for defendant.
Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.
In this action of tort the plaintiff seeks to recover for damage to his property by reason of a broken water main alleged to have been caused by the defendant's negligence in installing a culvert. The case was referred to an auditor under the usual rule and he found for the plaintiff. Thereafter the case was tried to a jury on the auditor's report and other evidence, and the jury returned a verdict for the plaintiff. The case comes here on the defendant's exceptions to several rulings on evidence and to portions of the charge. No questions bearing on liability are involved and we shall recite only so much of the evidence as is necessary to an understanding of the challenged rulings.
At some time in 1953 the defendant was engaged by the New York, New Haven and Hartford Railroad Company to install a culvert, a portion of which was to pass under Southampton Street, Boston. On May 19, 1953, the city of Boston issued a permit to the defendant for the excavation of a part of Southampton Street. Work was commenced on the culvert in the summer of 1953, and was completed early in the fall of that year. A portion of the culvert ran under a thirty inch water main of the city of Boston. That part of the water main that was above the culvert rested on steel I beams installed by the defendant. When the concrete roof of the culvert was poured the bottoms of the I beams were embedded in the concrete.
Early in the morning of January 20, 1955, the water main broke and water filled the basement of the plaintiff's restaurant, causing damage to his property.
1. The theory of the plaintiff's case was that the defendant was negligent in suspending the water main directly on the I beams, and that such negligence resulted in the break. The defendant's position in part was that the break was not caused by its negligence but resulted from a deteriorated main which had broken on numerous occasions. In support of this position the defendant offered in evidence certain reports (ten in all) of the water division of the public works department of the city of Boston, and an annual report of that division. The reports were designated 'A' to 'J,' inclusive, for identification and the annual report was designated 'L' for identification. This evidence was excluded and the defendant made appropriate offers of proof and excepted to the rulings. Three of the reports, 'A,' 'B,' and 'C,' relate to the same incident, a repair job on the water main at Southampton Street in April, 1950. All that these reports reveal is that the 'pipe sagged' and that twenty-five feet of new pipe was relaid. 'F' refers to a 'leak outside gate box' on November 16, 1953; 'G' to a 'leak on 30"' main' in February, 1954; 'H,' dated November 24, 1954, to a 'leak under bridge'; 'I' to the digging of two test holes 'to locate M T A duct line'; and 'J,' dated May 22, 1947, to a 'leak in south sleeve.' All of the foregoing incidents occurred in the general vicinity of Southampton Street where the defendant's installation was done.
'D,' 'E,' and 'L' refer to work done by reason of the break on January 20, 1955, which is the basis of the present action. 'E' reveals nothing more than that there was repair work on the thirty inch main. 'D' contains a statement that the cause of the break was 'blow-offs,' and 'L' in one place attributes the cause of the break to 'defective blow-off' and in another place to 'pipe resting on new sewer.'
We assume, without deciding, that the reports satisfy the public record or official statement (as it is sometimes called) exception to the hearsay rule. See Commonwealth v. Slavski, 245 Mass. 405, 417, 140 N.E. 465, 29 A.L.R. 281; Commonwealth v. Dorr, 216 Mass. 314, 319, 103 N.E. 902; Wigmore on Evidence (3d ed.) § 1633(1). Compare Allen v. Kidd, 197 Mass. 256, 259, 84 N.E. 122; Fondi v. Boston Mut. Life Ins. Co., 224 Mass. 6, 8, 112 N.E. 612; Amory v. Commonwealth, 321 Mass. 240, 252-253, 72 N.E.2d 549, 174 A.L.R. 370. Most of the excluded reports show no more than the fact of a leak in the main or a sagged pipe in the general vicinity of where the leak in question occurred. That is true of 'A,' 'B,' 'C,' 'F,' 'G,' 'H,' and 'J.' 'I' does not even show that; it shows only that two 'test holes' were dug, and need not concern us further. We assume that evidence of this type could be admissible for the purpose offered. But without further evidence showing the causes and circumstances of these leaks the excluded evidence would have slight, if any, probative value. And, if additional evidence of the causes and circumstances were to be introduced, there would be the danger of confusion or of unreasonable expenditure of time in the trial of collateral issues. Generally the admissibility of such evidence has been left to the wise discretion of the trial judge. He is in a better position than anyone else to determine the relevancy of such evidence and whether it will unduly prolong the trial or confuse the jury with collateral issues. For a good discussion of this subject with an exhaustive collection of authorities, see opinion of Lummus, J., in Robitaille v. Netoco Community Theatres of No. Attleboro, Inc., 305 Mass. 265, 266-269, 25 N.E.2d 749, 128 A.L.R. 592. See also Guidara & Terenzio Inc. v. R. Guastavino Co., 286 Mass. 502, 503, 190 N.E. 716.
We are of opinion that under the principles just stated the judge did not err in excluding exhibits for identification 'A,' 'B,' 'C,' 'F,' 'G,' 'H,' 'I,' and 'J.' Nor was there any error in the exclusion of 'D,' 'E,' and 'L,' which related to the leak in question. 'E' contained nothing of any consequence. 'D' and 'L' added little or nothing to the testimony of employees of the water division, and were objectionable for the further reason that they contained opinions. In Commonwealth v. Slavski, 245 Mass. 405, at page 417, 140 N.E. 465, at page 469, 29 A.L.R. 281, it was stated by Rugg, C. J., that, although there might be exceptions, the general rule was that 'records * * * by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible as evidence as public records.'
2. One Campbell (a superintendent in the water division of the Boston public works department) was called by the plaintiff and was permitted to testify that there was a regulation of the public works department which provided ...
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