Jensen v. McEldowney

341 Mass. 485 (1960) 170 N.E.2d 472

AGNES GERTRUDE JENSEN, administratrix,
vs.
RICHARD L. McELDOWNEY.

Supreme Judicial Court of Massachusetts, Middlesex.

October 5, 1960. December 2, 1960.

Present: WILKINS, C.J., SPALDING, WILLIAMS, WHITTEMORE, & CUTTER, JJ.

Richard D. Gilman, for the plaintiff.

Daniel A. Lynch, (Paul F. Degnan with him,) for the defendant.

SPALDING, J.

Late in the afternoon of December 28, 1956, while walking on Route 2A in Acton, William A. Jensen was killed by an automobile operated by the defendant. In this action of tort brought by Jensen's administratrix to recover for his death, the defendant had a verdict. The case comes here on the plaintiff's exceptions to several rulings on evidence.

1. One of the issues was whether Jensen was intoxicated at the time of the accident. One Turner, a taxi driver called by the defendant, testified that on the day of the accident he drove Jensen from Malden to a sanitarium in Acton; that during the trip Jensen stopped at a liquor store and purchased three half pints of whiskey; and that Jensen upon returning to the cab "took one drink and it came out of his nose ... and went all over the front of the cab." Counsel for the defendant then asked the witness whether Jensen "threw up in the taxicab after he had that drink" and the answer was "No." Counsel then put before the witness two sheets of paper and said, "See if it will refresh your recollection." The papers shown to the witness contained a statement made by him over his signature. The witness then testified that the statement refreshed his recollection and that Jensen "threw up" in the cab. Before the witness was shown the statement counsel for the plaintiff asked to see it but the judge denied the request, subject to the plaintiff's exception. During the cross-examination of the witness plaintiff's counsel made no attempt to inspect the statement. There was no error. The point is governed by Commonwealth v. Greenberg, 339 Mass. 557, where it was said at page 581, "There was no error in the denial of requests by the defendants that they be permitted to inspect the statements before their submission to the witnesses. While a writing which has been used to refresh the recollection of a witness may be examined by the opposing party to enable him by cross-examination to raise the question whether it is a proper memorandum for the purpose, ... he is not entitled to inspect the writing before it has been shown to the witness."

The contention that the foregoing examination amounted to an impeachment by the defendant of his own witness, in violation of G.L.c. 233, § 23, is without merit.

2. During his argument, counsel for the defendant stated, "No witnesses were brought in to show where the deceased was." Counsel for the plaintiff objected, and upon being asked by the judge the ground of his objection, stated, "For commenting on the failure to bring in witnesses ... here unless he shows some witnesses who are available to me." The judge then told the defendant's counsel to proceed with his argument, and the plaintiff excepted. The foregoing is all that the record shows with respect to this exception. The setting and context of the statement complained of do not appear. We are of opinion that no prejudicial error has been shown. The statement objected to, fairly construed, does no more than state that there were no witnesses as to the whereabouts of the deceased; it was merely a statement of fact. It did not ask the jury to draw an adverse inference because of the absence of such witnesses. Cases such as McGeorge v. Grand Realty Trust, Inc. 316 Mass. 373, 377-378, and Horowitz v. Bokron, 337 Mass. 739, 743-744, involving comment on the failure to produce specific witnesses not shown to be available, are not in point.

3. One Scribner, a police officer of the town of Acton, testified without objection that Route 2A (on which the accident occurred) was a "posted road" and that there were signs on the road indicating that the speed limit was forty-five miles per hour. In his argument counsel for the defendant stated, subject to the plaintiff's exception, "You will see the sign here [referring to a photograph] covered as it is here by snow but the officer told us that this sign shoes ``Speed limit forty-five.' In other words, the law says that you can drive up to forty-five miles an hour and be within the law." The plaintiff urges that this argument was improper because the defendant failed to establish that the road was lawfully posted. See G.L.c. 90, § 18. But in view of the testimony of the police officer which got into the case without objection we think that the argument was not improper.

4. In his argument counsel for the defendant said, "Rules and regulations promulgated by the Registry of Motor Vehicles under the law has certain things to say about brakes and let me read you this."Counsel for the plaintiff objected on the ground that the rules had not been put in evidence. The judge overruled the objection and, subject to the plaintiff's exception, defendant's counsel was permitted to read the "prescribed rules as to the distance within which an automobile should stop going at forty miles an hour."^[1] The defendant concedes that the "rules and regulations" from which defendant's counsel read had not been put in evidence. Since they could not be judicially noticed (Passanessi v. C.J. Maney Co. Inc. 340 Mass. 599, 604), it was error to permit them to be read. But we are of opinion that the error, from anything appearing in this record, cannot be said to have "injuriously affected the substantial rights" of the plaintiff. See G.L.c. 231, § 132.

Exceptions overruled.

NOTES

[1] Although described as "prescribed rules," it seems more likely that these were not in fact rules but a table showing the distance that a car ordinarily would travel at given speeds after the brakes were applied.