Putnam v. Harris

• Decision Date: 16 October 1906
• Citation: 193 Mass. 58,78 N.E. 747
• Parties: PUTNAM v. HARRIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 58

78 N.E. 747

PUTNAM v. HARRIS et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 16, 1906

COUNSEL

Joseph P. Carney, for plaintiffs.

Geo. R Warfield, for defendant.

OPINION

LORING J.

This is an action for negligence against the defendants in setting a fire on their own land, which got beyond control, ran over an intervening lot, and damaged the trees on the plaintiff's premises.

As one step in proving that the fire was set by direction of the defendants the plaintiffs offered to prove by one Putnam the statement of one McNaughton. It appeared that McNaughton died before the action now before us was brought. To the introduction of this evidence the defendants objected. The court ruled that the admissibility of the testimony depended 'upon whether or not the questions could have been put to him or his testimony could have been shown if he were alive.' The defendants again objected and the presiding judge said: 'This is admitted de bene--the authority he is going to show later.' Thereupon the witness testified that McNaughton stated in answer to a question as to the origin of the fire, that he had sent men from the defendants' factory to clear the defendants' land to sow rye, and in clearing the land they had started a fire and it had got away from them. Another witness, Rush by name, one of the two men sent by McNaughton, was allowed to testify against the objection and exception of the defendants that McNaughton told him to go to plough the field of the defendants in question, and added that there were some pine tops there which he told Rush and the other employé to pick up 'and burn them out of your way.'

It is plain that the testimony was admitted under Rev. Laws, c 175, § 66, and was competent against the defendants if it was shown that McNaughton had authority from them to give the directions in question. Whether evidence of the directions given should be admitted first and the authority shown later, or the evidence of the directions given should be excluded until McNaughton's authority was shown, was a matter to be decided by the presiding judge in his discretion.

It heretofore has been generally laid down that in such a case the exception will not be sustained unless it appears from the bill of exceptions that the evidence was not properly connected. Whitcher v. McLaughlin, 115 Mass. 167; Costello v. Crowell, 133 Mass. 352, where the earlier cases are collected.

It is more correct to say that the exception will not be sustained unless the fact that the evidence admitted de bene had not been properly connected afterwards was brought to the attention of the court and a further ruling on that ground asked for. The rule was so laid down in Brady v. Finn, 162 Mass. 260, 38 N.E. 506. See, also, Williams v. Clark, 182 Mass. 316, 65 N.E. 419.

But whichever is the true...