Rubin v. Town of Arlington

• Decision Date: 09 May 1951
• Citation: 327 Mass. 382,99 N.E.2d 30
• Parties: RUBIN v. TOWN OF ARLINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 30

99 N.E.2d 30

327 Mass. 382

RUBIN v. TOWN OF ARLINGTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 7, 1951.

Decided May 9, 1951.

F. P. Garland, Boston, for plaintiff.

N. B. Bidwell, Boston (R. T. Hamlet, Boston, with him) for defendant.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

The petitioner had a verdict assessing her damage caused by the taking of her land for 'public improvement' by the town of Arlington. Her exception to the exclusion of certain testimony offered by her as to the value of the land is before us. The taking was made on July 15, 1946. The land had been purchased by Robert P. Cable, Frank Leeder, and A. Alfred Franks on January 31, 1946, subject to a first mortgage, and the title taken in the name of one Johnson, a straw. Johnson gave a second mortgage to the three purchasers 'without the payment of money' and then conveyed the property to the petitioner, who was also a straw. At the trial, A. Alfred Franks was called as a witness by the petitioner and was asked what, in his opinion, was the fair market value of the land on July 15 1946. Counsel for the respondent objected 'on the ground that the witness was not the owner and was not qualified as an expert to express an opinion.' The judge excluded the question, subject to the petitioner's exception. The witness had previously testified that he lived in Brookline; that he was a graduate of Massachusetts Institute of Technology; that he attended Harvard Business School for one year; that he was in the clothing business; that he was interested in the land 'as a business man'; that after purchasing the land he and his associates had plans drawn 'for the development of this property for business purpose'; that he 'examined * * * [the property] quite carefully, and considered all its capabilities and potentialities for future development'; and that he was 'familiar with its characteristics.'

It is the contention of the petitioner that the witness although not an expert was one of the owners and as such should have been permitted to testify. In Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 503, 189 N.E. 839, 841, after a full discussion of the principle involved, it was stated, 'The rule which permits the owner of real or personal property to testify as to its value does not rest upon the fact that he holds the legal title. The mere holding of the title to property by one who knows nothing about it and perhaps has never even seen it does not rationally and logically give him any qualification to express an opinion as to its value. Ordinarily an owner of property is actually familiar with its characteristics, has some acquaintance with its uses actual and potential and has had experience in dealing with it. It is this familiarity, knowledge and experience, not the holding of the title, which qualify him to testify as to its value.' Consideration was given in the opinion to Wooley v. Fall River, 220 Mass. 584, 589, 108 N.E. 367, and Meyer v. Adams Express Co., 240 Mass. 94, 95, 132 N.E. 672, cases upon which the petitioner relies. See also Patch v. Boston, 146 Mass. 52, 57, 14 N.E. 770; Lincoln v. Commonwealth, 164 Mass. 368, 380, 41 N.E. 489; Shea v. Hudson, 165 Mass. 43, 42 N.E. 114; Maher v. Commonwealth, 291 Mass. 343, 348, 197 N.E. 78; Davenport v. Haskell, 293 Mass. 454, 200 N.E. 409; Ryder v. Lexington, 303 Mass. 281, 291, 21 N.E.2d 382.

Whether in the instant case the witness was sufficiently qualified by familiarity, knowledge and experience to be permitted to testify, was a preliminary question of fact to be decided by the trial judge. Flint v. Flint, 6 Allen 34, 36-37. Nunes v. Perry, 113 Mass. 274, 276. Commonwealth v. Sturtivant, 117 Mass. 122, 137. Perkins v. Stickney, 132 Mass. 217, 218. His decision was conclusive unless upon the evidence it was erroneous as matter of law. Commonwealth v. Sturtivant, supra. Perkins v. Stickney, supra. Ames v. New York, New Haven & Hartford Railroad Co., 221 Mass. 304, 306, 108 N.E. 920. By reason of having seen and heard the witness he was in a position to pass upon the credibility of the evidence relating to qualification. Foster v. Mackay, 7 Metc. 531, 538. Biancucci v. Nigro, 247 Mass. 40, 44, 141 N.E. 568. There may be cases where the decision of the trial judge is plainly erroneous and must be reversed. Commonwealth v. Spencer, 212 Mass. 438, 448, 99 N.E. 266; See Muskeget Island Club v. Nantucket, 185 Mass. 303, 70 N.E. 61; Old Silver Beach Corp. v. Falmouth, 266 Mass. 224, 165 N.E. 1. But such cases are rare. Corrao v. Sears, Roebuck & Co., 298 Mass. 23, 26, 9 N.E.2d 378; Langis v. Danforth, 308 Mass. 508, 510, 33 N.E.2d 287; Snow v. Merchants National Bank, 309...