19 Mass. App. Ct. 944 | Mass. App. Ct. | 1985
The plaintiffs, wife and husband, brought this action for damages for personal injury (loss of thumb of right hand of Perihan) and for loss of consortium
1. After the plaintiffs had struck four consecutive male jurors by peremptory challenge,
The plaintiffs argued to the judge and on appeal that these comments prejudicially suggested to the prospective jurors that the plaintiffs’ peremptory challenges were motivated by sex discrimination. They argue for the first time on appeal that these remarks chilled the exercise of their four remaining peremptory challenges. “[A] nonjurisdictional issue not presented at the trial level need not be considered on appeal.” Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977).
Even if we were to consider the point properly raised, we are not persuaded that the deprivation (or chilling) of the right to peremptory challenges may be inferred in the circumstances from the failure of the plaintiffs to exercise the four remaining challenges following the judge’s admonition. After the four new jurors were seated, the plaintiffs’ counsel made no inquiry of the judge about further peremptory challenges and, as noted, indicated his satisfaction with the composition of the jury.
2. We have considered the plaintiffs’ numerous allegations of error in the judge’s evidentiary rulings and conclude that they are without merit, as the evidence excluded was either cumulative or irrelevant, or the questions called for answers outside the witnesses’ personal knowledge. We discuss only the exclusion of a photograph of a gap between the raised hood and the body of the defendant’s car. A photograph is admissible in evidence if verified by a witness that it is a true and fair representation of the subject matter at issue at the relevant time. Howe v. Boston, 311 Mass. 278, 281
The plaintiffs attempted to introduce the photograph through the defendant. He testified that the photograph was not a fair and accurate representation of the area observed by him through the gap on the morning of the injury, although he did concede that the photograph represented the gap. To the extent that the defendant testified that the photograph did not portray the area he could observe, it was correctly excluded. To the extent that he identified it as a gap unrelated to his field of vision, it was irrelevant and, thus, inadmissible.
3. “[P]orties to an action are entitled to a fair and unprejudiced submission of the testimony and the issues to the jury.” Federal Natl. Bank v. O’Keefe, 267 Mass. 75, 83 (1929). Olson v. Ela, 8 Mass. App. Ct. 165, 168 (1979). Gauntlett v. Medical Parameters Inc., 10 Mass. App. Ct. 88, 94 (1980). Adams v. Yellow Cab Corp., 12 Mass. App. Ct. 931 (1981). Decisions which are the product of judicial conduct lacking in impartiality and reflective of a closed and biased state of mind “must ordinarily be held to be clearly wrong.” Ott v. Board of Registration in Medicine, 276 Mass. 566, 576 (1931). See Olson v. Ela, supra at 168. Whether there has been a denial of the right to a fair and impartial trial must be determined by an examination of the record in its entirety. Hazelton & Son v. Teel, supra at 621.
Our examination of the transcript as a whole fails to disclose a denial of the right to a fair and impartial trial. There was no error in the judge’s repeated exhortations to the defendant to limit his testimony to events he had observed or remembered. These admonitions were justified as the defendant repeatedly testified about events he had not witnessed or could not recollect. See 2 Wigmore, Evidence § 658 (3d ed. 1940).
We do note with concern certain comments made by the judge in the presence of the jury. The judge twice remarked, “If it’s not being admitted for the truth, we don’t want falsehoods,” in response to the plaintiffs’ counsel’s explanation that certain testimony of Perihan was not being offered for the truth of the matter asserted.
Judgments affirmed.
The plaintiffs’ motion to amend the complaint to add a count expressly claiming damages for loss of consortium was denied on the first day of trial. The judge apparently thought the inartfully drawn second count of the complaint was sufficient to raise the claim. See Nader v. Citron, 372 Mass. 96, 98 (1977). Evidence on the issue was admitted over the defendant’s objection, and the judge instructed the jury on loss of consortium as an element of damages. In view of our disposition it is unnecessary to consider whether the claim was properly before the jury.
In a special verdict as to Perihan’s claims, the jury found that the defendant was not negligent.
See G. L. c. 234, § 28; Rule 6 of the Superior Court (1974). “[Pjeremptory challenges . . . [permit a litigant to] have a juror withdrawn who in his opinion because of bias, prejudice, or some other personal characteristic, is not inclined to look with favor upon him or upon the nature of the controversy, where he lacks sufficient grounds to support a challenge for cause.” Kabatchnick v. Hanover-Elm Bldg. Corp., 331 Mass. 366, 370 (1954).
Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444 U.S. 881 (1979), proscribed: “the intentional use of peremptory challenges to exclude prospective jurors solely by virtue of their membership in, or affiliation with, particular, defined groupings in the community.” We do not decide here “whether the restrictions imposed on the exer
The judge obviously intended to refer to “men.”
There were two plaintiffs in the case with separate claims. See note 2, supra. They were therefore entitled to four peremptory challenges each under G. L. c. 234, § 29. Andras v. Marcyoniak, 13 Mass. App. Ct. 1043 (1982).
The jury first seated consisted of five men and seven women. The jury who heard the case comprised three men and nine women.
The evidence plaintiffs’ counsel was trying to elicit in these instances went to the issue of damages which the jury did not reach.