McCabe v. City of Chelsea

265 Mass. 494

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 1929
• Status: Published

Opinion

Rugg, C.J.

This is a petition for the assessment of damages caused by the taking of land of the petitioners by the city of Chelsea for memorial purposes. The exceptions relate solely to the admission and exclusion of evidence.

A witness called by the petitioners, who qualified as an expert in real estate values, having testified on cross-examination that "as you went toward Bellingham Square and beyond, land became more valuable,” was allowed in redirect examination to give his opinion as to the value of a particular lot known as the Splendid Restaurant land. Scarcely anything is better settled in the trial of cases of this nature than that evidence of mere opinion as to the value of land must be confined exclusively to the subject as to which damages are claimed. Wyman v. Lexington & West Cambridge Rail Road, 13 Met. 316, 327. Thompson v. Boston, 148 Mass. 387. Haven v. County Commissioners, 155 Mass. 467, 471. Beale v. Boston, 166 Mass. 53, 56. Old Colony Railroad v. F. P. Robinson Co. 176 Mass. 387, 390. The inquiry on cross-examination did not justify the introduction of this evidence. It ought to have been excluded.

It is the duty of the excepting party to show either expressly or by fair inference that he was harmed by the admission of incompetent evidence. Cecconi v. Rodden, 147 Mass. 164, 169. Posell v. Herscovitz, 237 Mass. 513. Commonwealth v. McIntosh, 259 Mass. 388, 391. We think that it cannot be said that the admission of this evidence was harmless error. It was manifestly incompetent. Seemingly the opinion of the witness was that the Splendid Restaurant land was worth considerably in excess of the damages assessed by the jury for the land taken. If the jury gave any weight to the evidence, it operated against the interest of the respondent. It cannot be assumed that they disregarded it. This exception must be sustained.

The sale price of the Splendid Restaurant land was admitted in evidence. That land was situated on Broadway at or near the business center of Chelsea, distant about two hundred fifty feet from the land taken, which was on Shurtleff Street and about one hundred to one hundred fifty feet back from Broadway. At the time of sale the purchaser of that land had executed a twenty-five year lease to the owners of the Splendid Restaurant which, according to some testimony, might make the land more valuable. There was no lease on the land taken. It long has been settled that in cases of this nature evidence is admissible of sales of land in the vicinity, similar in essentials to the land in question, and reasonably near to the taking in point of time. It is largely, though not exclusively, within the discretion of the trial judge to determine the admissibility of such evidence. Fourth National Bank of Boston v. Commonwealth, 212 Mass. 66, 68, and cases collected. James Millar Co. v. Commonwealth, 251 Mass. 457, 463. Bartlett v. Medford, 252 Mass. 311. The comparative sizes of the two lots, their street frontages and availability in general for valuable uses are not shown by the record. It does not appear what was the testimony as to the sale price. In these circumstances we cannot say that there was error in the admission of this evidence.

The respondent asked a witness for the statement made to him before the petition was brought, by the owner, since deceased, of a lot of land adjacent to that taken, as to the price paid on a sale occurring two or three years before the taking in question. It would not be a violent inference from what appears in the record that the ground for exclusion of this question was that it was thought to be opinion evidence. Plainly it would not be opinion evidence but testimony of a fact. Such testimony commonly would be competent. But the trial judge did not make the preliminary findings required by G. L. c. 233, § 65. The respondent did not offer proof of facts to show that the statement was made in good faith, upon the personal knowledge of the declarant. Crowley v. O’Donnell, 238 Mass. 475. No offer of proof was made as to the evidence expected to be shown. Cook v. Enterprise Transportation Co. 197 Mass. 7, 10. In these circumstances it cannot be said that there was error in the exclusion of these questions.

Exceptions sustained.