Posell v. Herscovitz

• Decision Date: 07 March 1921
• Citation: Posell v. Herscovitz, 237 Mass. 513, 130 N.E. 69 (Mass. 1921)
• Parties: POSELL v. HERSCOVITZ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 513

130 N.E. 69

POSELL

v.HERSCOVITZ et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1921.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action of contract to recover on a written agreement of employment for six months at $60 a week, as a designer of coats and suits by Jules Posell against Charles Herscovitz and others and trustee.Verdict for plaintiff, and defendants except.Exceptions overruled.Roewer & Bearak, of Boston, for plaintiff.

Robert Gallagher and Edward M. Dangel, both of Boston, for defendants.

RUGG, C. J.

The counsel for the defendants in his opening to the jury referred to letters which his clients ‘claimed to have read to the plaintiff’ and attempted to state their substance.Thereupon the judge restrained counsel and restricted the opening, saying that the question of the admissibility of the letters would be open later when offered as evidence.In this there was no reversible error.The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence.He should not be allowed to state facts which are irrelevant or for any reason plainly incompetent.It is not the practice to pass upon the admissibility of evidence during the opening, but to leave those questions for subsequent ruling when they arise in the course of the trial.Very much must be left to the sound discretion of the trial judge in the orderly conduct of proceedings.It is his duty of his own motion to restrain undue license on the part of counsel and to interpose when any effort is made to prejudice or inflame the minds of the jury, or to argue the merits under the guise of sketching his own case or to state proposed evidence manifestly inadmissible.In the reasonable discharge of his duty in these particulars, the judge is entitled to receive the loyal support of the bar, the obligation of whose oath is to act ‘with all good fidelity as well to the courts' as to their clients.It is the proper province of the judge to see that no improper advantage is taken by one side or the other, and that the trial goes forward with the utmost fairness, and that, notwithstanding disparity in skill, ingenuity, and efficiency with which the issues are presented by contending counsel, the intelligence of the jury may be enlightened and not distracted by what happens in the courtroom, to the end that justice be even and incline one way or the other only according to the weight of the credible and competent evidence.Commonwealth v. Howard, 205 Mass. 128, 146, 91 N. E. 397;Plummer v. Boston Elevated Ry., 198 Mass. 499, 515, 84 N. E. 849;O'Connell v. Dow, 182 Mass. 541, 549, 66 N. E. 788;Rich v. Jones, 9 Cush. 329, 336;People v. Wilson, 55 Mich. 506, 513, 21 N. W. 905;Walsh v. People, 88 N. Y. 458, 465;United States Fidelity & Guaranty Co. v. Poetker, 180 Ind. 255, 269, 102 N. E. 372, L. R. A. 1917B, 984;Caldwell v. Skinner, 105 Kan. 32, 34, 181 Pac. 568.It is to be remembered that--

‘The judge who discharges the functions of his office is * * * the directing and controlling mind at the trial, and not a mere functionary to preserve order and to lend ceremonial dignity to the proceedings.’Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 502, 84 N. E. 95, 96.

There is nothing on this record to indicate any abuse of judicial discretion in curbing the opening of counsel.

One of the issues was whether the plaintiff was a competent designer of suits and coats.During his examination one of the defendants testified that he showed and read to the plaintiff five letters from as many different customers complaining as to the fit of the samples designed by the plaintiff for the defendants and by them sent to their trade at plaintiff's request, and that the statements therein made were not then denied by the plaintiff.The defendants thereupon offered the letters, and they were excluded, the judge saying that no offer of proof was necessary ‘because the letters speak for themselves.’No letters are included in the bill of exceptions or printed as a part of the record.Thereforeit is impossible to determine whether any harm was done to the defendants by the exclusion of the letters.There is nothing on which to found an opinion whether they were admissible in evidence.They may have been incompetent by reason of their tenor even though shown to the plaintiff.It is the duty of the excepting party to show that harm has come to him by reason of the ruling of which he complains.The exception was duly saved and is stated.There is nothing to show the subject-matter to which it applies beyond the general description.It was not necessary to make a formal offer of proof of the words of the letters.It was enough to offer them in evidence.But they should have been printed as a part of the bill of exceptions.There is strong ground for argument that the letters may have been competent by reason of the conversation concerning them with the plaintiff and his examination of them.Auringer v. Cochrane, 225 Mass. 273, 114 N. E. 355;Kreeger v. Margolies, 227 Mass. 223, 116 N. E. 398;Welch v. McNeil, 214 Mass. 406, 101 N. E. 985;Dutton v. Woodman, 9 Cush. 255, 262,57 Am. Dec. 46.But, on the other hand, it is quite conceivable that they may have contained matter of such nature that they rightly might have been rejected.

This is not a case where the excepting party has omitted to state in his bill of exception an exception duly saved at the trial, which cannot be added by amendment after the expiration of the time for filing exceptions.Dorr v. Schenck, 187 Mass. 542, 73 N. E. 532;Commonwealth v. Dow, 217 Mass. 473, 483, 105 N. E. 995.Doubtless the...