Home ALEXANDER E. FINGER, administrator, vs. LIVIA DE PIETRO & another.

2 Mass. App. Ct. 913

January 10, 1975

This appeal brings to us the sole question whether the judge erred in allowing the defendant to ask a witness, "[Did you ever notice] anything to indicate that Mrs. Cignale was not of sound mind?" There was no error. The question called for a factual response as to acts observed and statements heard by the witness and did not, as argued by the plaintiff, seek the witness's conclusion or opinion concerning Mrs. Cignale's mental condition. McCoy v. Jordan, 184 Mass. 575 , 578 (1904). Gorham

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v. Moor, 197 Mass. 522 , 523-524 (1908). Old Colony Trust Co. v. Di Cola, 233 Mass. 119 , 125 (1919). See Vieira v. East Taunton St. Ry. 320 Mass. 547 , 550-551 (1947). A second issue raised by the plaintiff is not properly before us as it is not based on an exception. Jones v. Bailey, 1 Mass. App. Ct. 41 , 44-45 (1973). In any event it is wholly lacking in merit.

Decree affirmed.