306 Mass. 391 | Mass. | 1940
The jury returned a verdict for the plaintiff, the defendant having admitted liability. It could have been found that the plaintiff was a musician of ability and that the injuries he sustained seriously interfered with the practice of his profession. The defendant’s exceptions relate to matters of evidence and to the alleged denial of certain requests for rulings.
One group of exceptions relates to the plaintiff’s testimony as to his losses from professional engagements that he was unable to keep. It could have been found that he
The evidence was competent. Halloran v. New York, New Haven & Hartford Railroad, 211 Mass. 132, 133. Barrows v. Checker Taxi Co. 290 Mass. 231, 234, and cases cited. Doherty v. Ruiz, 302 Mass. 145, 146-147, and cases cited. The judge instructed the jury fully that the element of damage recoverable was not the loss of money as wages but compensation for the diminution of earning power, and he explained the relation of the former to the latter. See Mitchell v. Walton Lunch Co. 305 Mass. 76, 78.
The plaintiff was allowed to testify, subject to the defendant’s exception, as to the fair value of his services as a musician at the time of the trial. His answer to the question objected to, was, the “best market price that I can get, which is $21.60 per week.” There was no objection by the defendant to this answer. There was no reversible error. Rizzo v. Cunningham, 303 Mass. 16, 25, and cases cited. See Whipple v. Rich, 180 Mass. 477, 479; Doherty v. Ruiz, 302 Mass. 145. The facts in the case at bar, as to employment of the plaintiff, are distinguishable from those
The defendant excepted to a question to a witness that he describe what he observed about the plaintiff as to his capabilities as a musician. The specific objections to the inquiry were that it permitted the witness to go back too far, and also that the matter was not a proper subject for expert inquiry. It appeared that the witness had known the plaintiff professionally for the entire period of time comprehended by the question. The answer, to which no objection was made, was, “He was an expert musician.” The question was competent, and if the defendant desired to object to the answer as going beyond, or not being within, the proper scope of the question, it was its duty to call the attention of the judge to this by moving to strike out the answer. Cashin v. New York, New Haven & Hartford Railroad, 185 Mass. 543, 545-546. This witness was then asked to state, subject to the defendant’s exception, how skilful the plaintiff was, and his answer was, “Expert.” This was followed by a question that was unobjected to, asking the witness to tell what he called an expert and what “goes to make up his [plaintiff’s] expertness.” To this question the witness replied at length as to the plaintiff’s capabilities, the positions that he had held and what is required of a player of the violin or viola, instruments played by the plaintiff. In view of this answer, we are of opinion that there was no reversible error. Furthermore, the specific objection that has been argued by the defendant, that the questions went beyond the limit of what may properly be put to experts, that plaintiff’s counsel was permitted to lead and that the witness was permitted to characterize broadly, does not point to any reversible error.
An orchestra leader testified as to the plaintiff’s experience, skill and ability as a musician; that he became conductor for the witness and was also concert master for
One of the experts who had known the plaintiff for a long time, and had employed him as a conductor for his orchestra, and who testified extensively as to the plaintiff's ability and experience, was cross-examined respecting the present plight generally of musicians as to employment. On redirect examination he testified that there was plenty of room for the “fellow at the top.” It was agreed that the witness was “sort of at the top.” In view of the apparent understanding at the trial as to the significance of the words “at the top,” the contention of the defendant that the inquiry was not a proper subject of expert testimony cannot be sustained. Mangano v. Marston, 298 Mass. 133.
1 The plaintiff testified, without objection, that he had recently taken an audition for the Boston Symphony Orchestra but that he did not get the work. He further testified respecting his inability to complete the audition and that within a few minutes after he started it he was completely crippled. He was cross-examined as to what efforts he had made to obtain employment after the accident. The defendant also brought out on cross-examina
An actuary was permitted to testify, subject to the exception of the defendant, as to the life expectancy of the plaintiff and the sum required to provide weekly payments of certain specified sums over this period of expectancy, assuming four per cent interest in the discount of future payments, such sum to be exhausted at the end of the period. There was evidence that the plaintiff’s right arm was in a condition of chronic disability; that if an operation were performed it was doubtful if the result would enable the plaintiff to return to his concert work; that it was impossible to predict the duration of the condition of the arm; that the arm condition would spoil his playing entirely, and would cause him to lose his professional skill. We are of opinion that the evidence of the plaintiff’s condition afforded a basis for the admission of the testimony that was objected to. Copson v. New York, New Haven & Hartford Railroad, 171 Mass. 233. Rooney v. New York, New Haven & Hartford Railroad, 173 Mass. 222, 226-227. Hanley v. Boston & Maine Railroad, 286 Mass. 390, 399. The judge instructed the jury as to the use of the expectancy tables.
The plaintiff called the defendant’s motorman as a witness and was permitted to put leading questions to him relative to the collision of the two cars of the defendant as the result of which the plaintiff was injured. The defendant objected to several of the questions on the ground that they were leading and that the plaintiff was being permitted to cross-examine his own witness. It is within the discretion of the trial judge to allow leading que-stions to be put, even in direct examination. Commonwealth v. Meserve, 154
The plaintiff testified on cross-examination that he believed he filed a State income tax return in 1935, but that he did not keep copies of returns that he filed. He was asked, in substance, if he was willing to give the defendant’s attorney permission to obtain a copy of "the return,” to give such permission as might be necessary to make available to the judge and jury his income tax returns filed with the Commonwealth for 1934 and 1935, and whether he filed accurate returns for those years. The questions were excluded subject to the defendant’s exceptions. A director of the income tax department testified that, in response to a summons, he had with him the income tax returns of the plaintiff for 1934 and 1935. G. L. (Ter. Ed.) c. 62, § 58, was read to the jury. The witness was asked if there was any penalty for disclosing the contents of the returns to the plaintiff; he was also asked if the department had a practice in regard to the disclosure to the taxpayer or his agents; and these questions were excluded subject to the defendant’s exception. The plaintiff was then recalled by the defendant and was asked if he was willing "to put the income tax returns in your possession so that I may see them in this case.” The question was excluded, and the judge stated that a question of privilege was involved, which the plaintiff did not have to waive, and that no inference should be drawn against him for not doing so.
G. L. (Ter. Ed.) c. 62, § 58, provides that the disclosure by the commissioner (of corporations and taxation) or by any deputy, assistant, clerk or assessor, or other employee of the Commonwealth, or of any city or town therein, to any person but the taxpayer or his agent, of any information whatever contained in or set forth in any return filed
When the Legislature first enacted an income tax law by St. 1916, c. 269, it was provided in § 16 that the required returns "shall be open to the inspection of the tax commissioner” and his assistants when acting under his authority, and of the income tax assessors and of their assistants when acting under their authority, and it was further provided in the same section that the disclosure by any of these officers or other employee of the Commonwealth, or of any city or town therein, to any person of any information whatever contained in or set forth by any such return, other than the name and address of the person filing it, except in proceedings to collect the tax "or by proper judicial order,” should be punishable. Said section further provided that lists or indexes of persons who had filed returns should be kept in the offices of each income tax assessor and should be open to public inspection. St. 1918, c. 257, § 71, amended said § 16 by permitting the disclosure of information contained in the return to "the taxpayer or his agent . . .” St. 1919, c. 50, further amended said § 16 by substituting for the provision relative to the keeping of lists of persons who had filed returns, the following provision: "The tax commissioner shall, upon the request of any inhabitant of the commonwealth, state whether or not any designated person has filed an income tax return for the current or any prior year.” Said § 16 was further amended by St. 1919, c. 117, by inserting a provision that the “books, accounts and other records in the hands of the tax commissioner, except re
By St. 1903, c. 437 (the business corporation law), § 48, it was provided for the first time that a corporate tax return filed with the tax commissioner “shall be open only to the inspection of the tax commissioner, his clerks and assistants, and such other officers of the commonwealth as may have occasion to inspect it for the purpose of assessing or of collecting taxes.” This provision was continued in effect by St. 1914, c. 198, § 6. In Brackett v. Commonwealth, 223 Mass. 119, decided in 1916, it was held that the original tax returns of the petitioning corporation were inadmissible. In considering the effect of the provision of the law, as it then stood, relative to the accessibility of corporate tax returns, the court said, at page 126, that it “indicates a legislative determination not only that it [the return] shall not be open to general observation, but that it shall not be used for any purpose other
We are of opinion that when the Legislature, by St. 1923, c. 402, § 1, amended the law relative to the disclosure of information contained in returns by striking out
We are of opinion that what was said in the case of James Millar Co. v. Commonwealth, 251 Mass. 457, relative to the use of corporation excise tax returns as evidence is applicable to the situation in the case at bar, and that in order to give §§ 32 and 58 of said c. 62 the force and effect that the Legislature intended they should have, those provisions ought not to be circumvented by any indirect attack, such as by resorting to inquiry of the individual who has made the tax return as to its substance or contents. Even in a case where a statute requiring the report of certain information to public authorities does not, in terms, make it privileged, but where there was no provision in the statute giving the right to the public to inspect the report or providing for its use, except as declared in the statute, it was held that the report was not admissible against the one making it as an admission by him. Gerry v. Worcester Consolidated Street Railway, 248 Mass. 559, 566-568. In Williams v. Brown, 137 Mich. 569, it appeared that a statute provided that no tax statement made by a taxpayer “shall be used for any other purpose except the making of an assessment for taxes as herein provided, or for enforcing the provisions of this act.” A tax statement evidently made by one of the parties, who was a witness, was offered in evidence, but withdrawn. When the maker became a witness, the tax statement was placed in his hands, after the court had again ruled it out,
We a,re of opinion that there was no error in the matters complained of relating to the income tax returns or in the exclusion of questions put to the plaintiff in relation thereto.
One exception of the defendant in this connection remains to be considered. Just before the evidence was closed, the defendant recalled the plaintiff, who had already been examined, cross-examined and recross-examined. Thereupon, at a bench conference, the defendant proposed to ask the plaintiff whether there was any accurate record other than the income tax returns, to which reference had just been made, of his income for the years 1934 and 1935 that was available, and the question was excluded subject to the defendant’s exception. We are of opinion that what has already been said disposes of this exception adversely to the defendant. Furthermore, at the very outset of the plaintiff’s cross-examination, he testified as to his average weekly earnings for 1934 and that he kept no record of them. From the record it appears that he was cross-examined in detail as to his income for that year and for 1935. The statement of his engagements, herein-before referred to, was in evidence, and the plaintiff was cross-examined as to the various items in it. Again in cross-examination he testified that he had nothing to show accurately his income for 1934 and that the statement in evidence was the most accurate record that he had of his income for 1935 (the year m which he was injured); that
There remains for consideration the defendant’s exceptions to the denial of its requests for rulings. We have examined all of the relevant exceptions that have been argued. The charge is printed in full in the record. Although the judge did not give the several requests in the precise language in which they were framed, as he was not required to, nevertheless their subject matter was adequately and properly covered and there was no error.
Exceptions overruled.