228 Mass. 563 | Mass. | 1917
This is an action to recover damages for the conscious suffering and death of the plaintiff’s intestate, Archie L. King. At the trial witnesses testified to certain declarations made by him. The jury found for the plaintiff.
The defendant requested the presiding judge to rule: “Before the jury is justified in receiving any declaration or statement which King is said to have made, it must be satisfied that (1) King made the statement testified to by the witness who appears in court; (2) King made the statement to the witness in good faith; and (3) King himself knew of his own knowledge what the witness testified that King said.”
Under R. L. c. 175, § 66, the admissibility of a declaration of a deceased person is for the presiding judge to pass upon. The language of the statute being “A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.” The preliminary question, whether the evidence is to be received or rejected, must be decided by the presiding judge in the first instance. The reception of the evidence is for him; its credibility is for the jury. As we construe the ruling requested by the defendant it called upon the judge to say to the jury that the admissibility or reception of the evidence was a matter for their decision. For this reason the requests properly were refused.
When the declaration of a deceased person is offered in evidence the judge passes on the preliminary question: he decides whether it is admissible or not. If satisfied that the conditions of the statute were complied with, it is his duty to admit it; if not so satisfied, it is his duty to exclude it; and his conclusions of fact áre not reviewable unless clearly wrong. Dixon v. New England Railroad, 179 Mass. 242, 246. Flynn v. Coolidge, 188 Mass. 214. Dickinson v. Boston, 188 Mass. 595. Glidden v. United States Fidelity & Guaranty Co. 198 Mass. 109, 114. Carroll v. Boston
A discretionary method of procedure which may be followed in passing upon the preliminary question is pointed out in Slotofski v. Boston Elevated Railway, 215 Mass. 318, 320.
Exceptions overruled.