Tamagno v. Leshay

202 N.E.2d 263, 348 Mass. 772

• Court: Massachusetts Supreme Judicial Court
• Decided: October 29, 1964
• Status: Published

Opinion

Exceptions overruled. In the trial of an action of tort for the alleged negligence of the defendant dentist in his treatment of the plaintiff, the judge excluded, subject to the plaintiff’s exception, a hypothetical question to a qualified dentist to determine if he had an opinion whether the use of certain materials and methods was consistent with good dental practice in the community. The burden is upon the excepting party to show error. Posell v. Herscovitz, 237 Mass. 513, 516. Curtin v. Benjamin, 305 Mass. 489, 494. The bill of exceptions fails to show any evidence that the methods or materials assumed in the question were used by the defendant, or any representation by the plaintiff, accepted by the judge, that evidence to that effect would be forthcoming. There was no error in excluding the question. Anderson v. Albertstamm, 176 Mass. 87, 91. Earle v. New York Cent. & Hudson River R.R. 235 Mass. 61, 65. State Bd. of Retirement v. Contributory Retirement Appeal Bd. 342 Mass. 58, 66. There being no competent evidence of the defendant’s negligence, there was no error in directing a verdict for the defendant. Brown v. United States Fid. & Guar. Co. 336 Mass. 609, 614.