Putnam v. Harris , 193 Mass. 58 ( 1906 )

Loring, J.

This is an action for negligence against the defendants in setting a fire on their own land, which got beyond control, ran over an intervening lot, and damaged the trees on the plaintiff’s premises.

As one step in proving that the fire was set by direction of the defendants the plaintiff offered to prove by one Putnam the statement of one McNaughton. It appeared that McNaughton died before the action now before us was brought. To the introduction of this evidence the defendants objected. The presiding judge ruled that the admissibility of the testimony depended “ upon whether or not the questions could have been put to him or his testimony could have been shown if he were alive.” The defendants again objected and the judge said: “ This is admitted de lene, — the authority he is going to show later.” Thereupon the witness testified that McNaughton stated in answer to a question as to the origin of the fire, that he had sent men from the defendants’ factory to clear the defendants’ land to sow rye, and in clearing the land they had started a fire and it had got away from them. Another witness, Rush by name, one of the two men sent by McNaughton, was allowed to testify against the objection and exception of the defendants that McNaughton told him to go to plough the field of the defendants in question, and added that there were some pine tops there which he told Rush and the other employee to pick up “ and burn them out of your way.”

It is plain that the testimony was admitted under R. L. c. 175, § 66, and was competent against the defendants if it was shown that McNaughton had authority from them to give the directions in question. Whether evidence of the directions given should be admitted first and the authority shown later, or the evidence of the directions given should be excluded until McNaughton’s authority was shown, was a matter to be decided by the presiding judge in his discretion.

It heretofore has been generally laid down that in such a case the exception will not be sustained unless it appears from the bill of exceptions that the evidence was not properly connected. Whitcher v. McLaughlin, 115 Mass. 167. Costello v. Crowell, 133 Mass. 352, where the earlier cases are collected.

It is -more correct to say that the exception will not be sustained unless the fact that the evidence admitted de bene had not been properly connected afterwards was brought to the attention of the judge and a further ruling on that ground asked for. The rule was so laid down in Brady v. Finn, 162 Mass. 260. See also Williams v. Clarke, 182 Mass. 316.

But whichever is the true statement of the rule, the exception in question must be overruled.

The matter was not subsequently brought to the attention of the judge either by a request to strike out the evidence admitted de bene, or by a request for a ruling that there was no evidence for the jury on this point.

It is stated in the beginning of the bill of exceptions that “the evidence material to the issues raised was as follows.” Whatever might be thought to be the true construction of this bill of exceptions if this statement stood alone, it is plain from the concluding statement of the bill that the defendants did not raise the question of the sufficiency of McNaughton’s authority. The concluding statement is as follows : “The question of McNaughton’s agency and authority to direct men to set fire to the brush on the lot was submitted to the jury under proper instructions and not excepted to by either party.”

The defendants now further object that McNaughton could not have testified to the facts stated by him because they were not within his personal knowledge. The question asked did not call for facts not within his knowledge, and no motion was made to strike out the answer on that ground. The objection cannot now be raised. See Packer v. Thomson-Houston Electric Co. 175 Mass. 496; McInnis v. Boston Elevated Railway, 190 Mass. 386. Apart from that it appears that McNaughton went to the fire after it started, and therefore the only fact testified to by him of which he could not be found by the judge to have had personal knowledge was the fact that the fire was set by Rush and the other employee. That is stated in the bill of exceptions to have been the fact, and therefore the defendants were not injured by the introduction of that evidence. In such a case the exception will not be sustained. Hinckley v. Somerset, 145 Mass. 326.

Exceptions overruled.