Solomon v. Dabrowski

• Decision Date: 10 September 1936
• Citation: 295 Mass. 358,3 N.E.2d 744
• Parties: SOLOMON v. DABROWSKI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 358

3 N.E.2d 744

SOLOMON v. DABROWSKI et al.

Supreme Judicial Court of Massachusetts, Berkshire.

September 10, 1936

Exceptions from Superior Court, Berkshire County; F. T. Hammond, Judge.

Action of tort by Zahia Solomon, administratrix, against Martin Debrowski and others. Verdict for plaintiff in the sum of $9,800, of which plaintiff remitted all in excess of $5,000 and defendant saved exceptions.

Exceptions overruled.

F deL. Cunningham, of Pittsfield, for plaintiff.

F. M Myers, of Pittsfield, for defendant.

QUA Justice.

This action for death of the plaintiff's intestate was tried with seven other actions, all arising out of a collision in Cheshire between an automobile in which the plaintiff's intestate and one Meloveck were passengers and a motor truck operated by one Jura for whose conduct the plaintiff contended the defendants in this action were responsible. Among the actions tried with this one were actions by Meloveck against the driver and the owner of the automobile in which the plaintiff's intestate and Meloveck were riding.

The judge admitted evidence that the defendants had caused a sum of money to be paid to Meloveck upon a covenant by him not to sue the defendants. This evidence was clearly competent in reduction of any damages recoverable by Meloveck in his actions. O'Neil v. National Oil Co., 231 Mass. 20, 29, 120 N.E. 107. Counsel for the present defendants excepted to the admission of this evidence, but did not at the time of its admission request the judge to instruct the jury that it did not apply to the action against the defendants or to limit its application in any way, and the judge did not do so. At the close of the evidence the defendants requested the judge to instruct the jury that they were not to consider the fact that payment was made to Meloveck as in any was bearing upon or affecting the issues in this case. The judge refused this request.

The rule is that a general objection and exception to evidence will not prevail, if the evidence is competent for any purpose, and that the objecting party must call the attention of the judge specifically to any limitations which he believes should be imposed upon its application to the issues. Earle v. Earle, 11 Allen 1; Shea v. American Hide & Leather Co., 221 Mass. 282, 283, 109 N.E. 158; Shumaker v. Lucerne-In-Maine Community Association, 275 Mass. 201, 175 N.E. 469. The same rule is held to apply where there are several parties or where, as here, several cases are tried together, and evidence is offered which is competent as to one or more parties or cases and not competent as to others. Williams v. Taunton, 125 Mass. 34, 39; New Hampshire Fire Ins. Co. v. Healey, 151 Mass. 537, 24 N.E. 913. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 581, 58 N.E. 162. It is also the rule that objections and exceptions relating to matters of evidence, unless the judge by admitting the evidence de bene or in some other manner orders otherwise, must be taken seasonably when the evidence is offered and that such objections cannot as of right be insisted upon by means of motions to strike out or requests for rulings after the close of the evidence. Orpin v. Morrison, 230 Mass. 529, 531, 120 N.E. 183; Ferris v. Ray Taxi Service Co., 259 Mass. 401, 404, 156 N.E. 538; Crowley v. Swanson, 283 Mass. 82, 186 N.E. 46; Cummings v. National Shawmut Bank, 284 Mass. 563, 568, 188 N.E. 489. Compare Higgins v. Shepard, 182 Mass. 364, 65...