Sullivan v. Fugazzi
| Decision Date | 02 January 1907 |
| Citation | 193 Mass. 518,79 N.E. 775 |
| Parties | SULLIVAN et al. v. FUGAZZI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Whipple Sears & Ogden, for plaintiff.
Chester W. Ford and Eugene M. Schwarzenberg, for defendant.
The plaintiffs' cause of action, whether against the defendant or the railroad company, was either for a failure to deliver the peaches according to the contract of sale, or of carriage, and the order that the suits should be tried together rather than separately was not only proper, but discretionary with the trial court. Springfield v Sleeper, 115 Mass. 587; Burt v. Wigglesworth, 117 Mass. 302; Com. v. Robinson, 1 Gray, 555; Com. v. Miller, 150 Mass. 69, 22 N.E. 434; Com v. Brigham, 158 Mass. 169, 33 N.E. 341. Within the scope of such an order is the probability that if one of the parties in the usual order of proof is called as a witness in either case he may give testimony affecting the issues in the other, and it does not appear that counsel for the company claimed an absolute right to examine the defendant as an adversary party, for from the language of the exceptions we assume that the cross-examination was permissive. It is impossible to reproduce upon a printed record however perfect, the importance of the effect at a jury trial of the shifting aspects of evidence, and the appearance of witnesses. If the defendant had been called by the company as a witness, and appeared adverse he could have been cross-examined, and although called in his own favor the presiding judge upon finding that it was affected by his evidence may have deemed it expedient to allow such an examination, but whatever the reason may have been the orderly conduct of the trial was within his discretion, and the testimony elicited not being reported the defendant fails to show that he has been injured by the ruling. Beal v. Nichols, 2 Gray, 262; Jennings v. Rooney, 183 Mass. 577, 579, 67 N.E. 665; Com. v. Johnson, 188 Mass. 382, 385, 74 N.E. 939; Lee v. Tarplin, 183 Mass. 52, 54, 66 N.E. 431.
The exceptions to the exclusion of evidence, and to the instructions to the jury not having been argued require no comment, and there remain the exceptions to the requests for rulings so far as they were not given, but of these only the eighth, ninth, fourteenth, sixteenth, seventeenth, and eighteenth are now urged. In dealing with them an embarrassment arises because the bill of exceptions does not purport to contain all the evidence, but it is plain that the principal issue was to ascertain the contract between the parties, the terms of...
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...credibility of the defendant. If it had been offered on behalf of a co-defendant, it would also have been admissible. Sullivan v. Fugazzi, 193 Mass. 518, 79 N. E. 775. The evidence in its essential nature was not untrustworthy. It had no tendency in and of itself to mislead the jury or to o......
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