Ross v. Schrieves

199 Mass. 401 | Mass. | 1908

Knowlton, C. J.

The question of law raised by this bill of exceptions is whether, upon a question as to the value of the furniture of a barber shop converted by the defendant, an expert witness whose special business is determining the value of such property and trading in it may be examined as to values by hypothetical questions, he never having seen the particular articles converted.

In Miller v. Smith, 112 Mass. 470, 475, Chief Justice Gray said: “ Whenever the value of any peculiar kind of property, which may not be presumed to be within the actual knowledge of all jurors, is in issue, the testimony of witnesses acquainted with the value of similar property is admissible, although they have never seen the very article in question. ... A witness, having the requisite knowledge and experience, may always be examined by hypothetical questions, even if he has not seen the particular subject to which the trial relates, and has not heard all the other evidence given in the case.” These propositions were supported by a citation of authorities. They show that the testimony was competent in the present case.

The plaintiff refers to the familiar rule that an exception to an erroneous ruling cannot be sustained unless it appears that the excepting party was injured by it. The bill of exceptions indicates that this subject was not in the thought of the counsel or of the judge when the ruling was made. The colloquy recited in the bill of exceptions makes it plain that the judge, as well as the counsel on both sides, assumed that the testimony which the defendant sought to introduce was expected to be favorable to him. The ruling seems to have been made solely on the ground that a witness, who had not seen the goods, could not answer a hypothetical question in regard to the value of them. Before the question had been finished the judge interrupted the defendant’s counsel by asking, “ Are you going to ask him a hypothetical question ? ” When later, for the purpose of perfecting his exception, the counsel was about to finish the question, the judge said: “ True, but he said he had never seen the goods, and you are going to ask him to give a value on them. ... I think that is enough for a foundation to warrant my excluding it.” Previously, in reference to answering a hypothetical question, the judge said: “ It may be your misfortune that you cannot get any other testimony, but I do not think I can allow that.” While the case would have been free from doubt if the defendant’s counsel had expressly stated his reason to expect a favorable answer from the witness, we think the record shows an assumption by the judge that the testimony would be helpful to the defendant, and an understanding by the defendant’s counsel that this was assumed, and that his exception was saved and allowed accordingly. If this sufficiently appears in the bill of exceptions, the defendant is entitled to the benefit of the assumption in this court.

Exceptions sustained; new trial granted on the question of damages.