Ricciutti v. Sylvania Elec. Products Inc.

• Decision Date: 18 December 1961
• Citation: 343 Mass. 347,178 N.E.2d 857
• Parties: Joseph J. RICCIUTTI v. SYLVANIA ELECTRIC PRODUCTS INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 857

178 N.E.2d 857

343 Mass. 347

Joseph J. RICCIUTTI v. SYLVANIA ELECTRIC PRODUCTS INC.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 2, 1961.

Decided Dec. 18, 1961.

Thomas L. Mackin, Boston (Paul F. Shaughnessy, Marlboro, with him), for plaintiff.

Thomas H. Mahony, Boston (George T. Padula, Boston, with him), for defendant.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

SPIEGEL, Justice.

This is an action of tort for personal injuries by a self-employed 'tube bender' or 'glass blower' against the manufacturer of certain fluorescent tubes which were coated on the inside with a powder containing a chemical known as beryllium. The jury returned a verdict for the defendant and the case comes here on the exceptions of the plaintiff to the admission and exclusion of evidence and to the failure of the judge to give certain requested instructions.

From 1941 to 1943, while employed by an advertising company, the plaintiff occasionally repaired and handled broken sections of neon glass tubing and did some glass blowing or tube bending. He started his own business in 1943 making and selling neon signs, and fabricating neon tubes for the signs using equipment and coating substances which he bought. These included coated tubes of various colors from a plant which he purchased in New Jersey. The plaintiff did not know who manufactured these tubes.

In 1944 he began to purchase additional tubing which was manufactured by the defendant. Until the fall of 1944 he brought 'nothing but Sylvania tubes' but at times thereafter he bought tubes by a company other than the defendant.

The tube bending procedures consisted of holding the part of the tube to be bent over a flame unit it became malleable. In order to keep the tube from collapsing, the plaintiff plugged one end of the tube with a cork and, placing the other end in his mouth, applied air pressure. In 1941 and 1943 the plaintiff had gotten powder in his mouth. In 1951 he purchased material with which to coat tubing himself 'with equipment which he had bought in 1948.' When he 'blew tubes' that he coated himself he also got powder in his mouth.

The plaintiff claims that he contracted a disease of the lungs known as berylliosis. He testified that he began 'to feel the first symptoms which began with coughing all the time' in 1952 and 'later on in the year shortness of breath.' On January 27, 1956, at a Dr. Levenson's office he 'first learned what was wrong with himself.'

1. The plaintiff sought to introduce three agreements for the payment of compensation filed with the Industrial Accident Board pursuant to G.L. c. 152, § 6 (as amended through St.1953, c. 314, § 6). The plaintiff excepted to the exclusion of this evidence. These agreements were entered into between the defendant's insurer and claimants who allegedly contracted berylliosis while in the defendant's employ. The plaintiff offered to prove that these agreements were executed on February 10, 1949, November 11, 1949, and August 7, 1951.

There was no error in the exclusion of these records. Agreements filed with the Industrial Accident Board under G.L. c. 152, § 6, are not admissible in evidence as admissions by the defendant that it had knowledge of the dangerous propensities of beryllium. To allow them in as admissions would defeat the purpose of the statute and hinder the settlement of workmen's compensation claims. See Gerry v. Worcester Consol. St. Ry., 248 Mass. 559, 568, 143 N.E. 694.

Moreover, it has been held that a compromise entered into by a defendant in settlement of a claim by some person not a party to the action is inadmissible to prove the defendant's liability to the plaintiff. Carpenter v. Boston & Maine R.R., 295 Mass. 103, 106, 3 N.E.2d 184.

2. Over the objection and exception of the plaintiff Robert Gleason, the defendant's industrial hygiene engineer, was allowed to testify to the beryllium oxide content of $3500 White' tubing manufactured by the defendant in 1945. The witness testified from specifications of the defendant's engineering department which the judge found 'to be kept in the ordinary course of business.' The evidence was admissible under G.L. c. 233, § 78 (as amended through St.1954, c. 442, § 1). Sellew v. Tuttle's Millinery Inc., 319 Mass. 368, 371, 66 N.E.2d 26. This evidence is not open to the objection that the witness did not have personal knowledge of the beryllium content in 1945 because under this statute '* * * personal knowledge of the facts recorded on the part of the person testifying is not required.' Sellew v. Tuttle's Millinery Inc., supra at 371, 66 N.E. at 28.

3. The witness Gleason had represented the defendant at a conference on the problem of beryllium in 1947 which was attended by chemists and 'medical men' as well as representatives of all the major manufacturers of fluorescent lamps. During his testimony, Gleason was asked the following question: 'Now, at any time during that time was there any finding, definite finding, by that symposium conference of beryllium as the sole cause of these so called beryllium cases?' The judge allowed the question over the plaintiff's objection and exception but only 'to show knowledge or lack of knowledge on the part of the defendant under a duty to use reasonable care.' The question was admissible for that limited purpose. See Callahan v. Boston Elev. Ry. Co., 215 Mass. 171, 174, 102 N.E. 330; Commonwealth v. Britland, 300 Mass. 492, 498, 15 N.E.2d 657, 118 A.L.R. 132.

4. Three exhibits offered by the defendant were admitted in evidence over the objection of the plaintiff and subject to his exception. The judge ruled that each of them was admissible under G.L. c. 233, § 79B (inserted by St.1947, c. 385, § 1). ¹ After admitting the exhibits in evidence the judge stated that 'in admitting the last two [exhibits 5 and 6] I admit them not only on the ground stated in the [s]tatute, but also on * * * the question of duty and obligation' under the 'Carter v. Yardley case.'

The exhibits being admitted under the statute are evidence of 'the truth of any fact' therein stated. If this evidence was inadmissible for that purpose the error would persist even though the exhibits might be admissible for some limited purpose. Therefore, we need only to consider their admissibility under the statute.

All preliminary questions of fact on the admissibility of evidence are for the judge to decide. 'That determination is conclusive if there is evidence to support it.' Fauci v. Mulready, 337 Mass. 532, 540, 150 N.E.2d 286, 291.

The record does not disclose that the judge made the findings required under § 79B of G.L. c. 233. Under such circumstances the admission of the documents implies a finding of the facts prerequisite to their admission. Such an implication is proper where nothing to the contrary appears. See Saba v. Cohen, 333 Mass. 557, 558, 132 N.E.2d 182. However, we are not precluded from examining the exhibits which are before us.

They consist of a letter (exhibit 5) written on Sylvania Electric Products Inc. letterhead, signed by R. H. Bishop, vice-president in charge of sales, which contains the following statement: 'Mailed To all Wholesalers, Division Managers, Division Engrs., Field Representatives & Inside & Outside Sales Staff'; a copy of a statement by the medical advisory committee on beryllium of the division of industrial health of the public health service (exhibit 4) which originally was attached to and distributed with the letter (exhibit 5); and an engineering bulletin issued by the commercial engineering department, Sylvania Electric, Salem (exhibit 6).

The finding of the trial judge upon a preliminary question of fact is not to be reversed if it is fairly supported by the evidence. Coghlan v. White, 236 Mass. 165, 169, 128 N.E. 33. But, there is error where it appears from the exhibits that the necessary preliminary findings could not be made. Ames v. New York, N. H. & H. R. Co., 221 Mass. 304, 306, 108 N.E. 920. Coghlan v. White, supra. Clearly the exhibits admitted in evidence were not issued to the public, nor were they commonly used and relied on. They were, therefore, inadmissible under the provisions of G.L. v. 233, § 79B. The admission of exhibits 4 and 5 was prejudicial since they contain statements which are harmful to the plaintiff's case.

5. The plaintiff took exception to the exclusion of evidence relating to the beryllium content of the defendant's tubing prior to the year 1943. There was no error. The plaintiff testified that he first purchased tubing manufactured by the defendant in 1944. As there was no evidence that tubing acquired by the plaintiff in 1944 or thereafter was manufactured by the defendant prior to 1943, the evidence was irrelevant.

6. The plaintiff excepted to the court's failure to give the following instruction: 'Every manufacturer is presumed to know the nature and quality of his products.'

The plaintiff cites three Massachusetts cases, Thornhill v....