Home COMMONWEALTH vs. FRANK E. IMBRUGLIA.

4 Mass. App. Ct. 787

March 1, 1976

The remark made by the prosecutor in the presence of the jury at the close of the evidence was unfortunate at best. The judge promptly and forcefully gave clear and correct curative instructions. Compare Commonwealth v. D'Ambra, 357 Mass. 260 , 262 (1970). The evidence of Imbruglia's guilt was particularly strong, and we are not persuaded that the remark, when considered in the light of the instructions, contributed to the verdict.

Judgment affirmed.

Home JOHN E. HERLIHY vs. FREDERIC J. FLEMINGS, JR., executor.

4 Mass. App. Ct. 787

March 1, 1976

1. The basic question raised by the petition under G. L. c. 215, Section 39A, was the amount which should be awarded out of the estate for the legal services which the petitioner had rendered to the executor in connection with the settlement of the estate; it was immaterial that the executor might have bound himself personally (see Eaton v. Walker, 244 Mass. 23 , 30 [1923]; Lewis v. National Shawmut Bank, 303 Mass. 187 , 191 [1939]) to pay the petitioner a greater amount than what the judge saw fit to award out of the estate. Contrast McLaughlin v. Old Colony Trust Co. 313 Mass. 329 , 330 (1943). 2. Although the evidence which has been presented to us suggests a possibility that the total award to the petitioner for his services failed to reflect the value of such services as may have been rendered subsequent to January 14, 1974, such is not a necessary inference, and in the absence of any subsidiary findings by the judge (see G. L. c. 215, Section 11, as in effect prior to St. 1975, c. 400, Section 58) as to what was intended to be covered by the corrected decree we are in no position to say that the subsequent services were overlooked. 3. Nor is there anything in the portions of the record before us which would permit us to say that the total award for all the services which the petitioner may have rendered was not made on the "equitable basis" delineated in G. L. c. 215, Section 39A. 4. We see no abuse of discretion in the amount allowed (under G. L. c. 215, Section 45) for counsel fees and expenses in the present proceedings.

Corrected decree affirmed.

Home BOSTON EDISON COMPANY vs. PAULINE A. FORBES & others.

4 Mass. App. Ct. 787

March 4, 1976

The plaintiff's appeal from the order allowing the defendants' motion for jury issues in so far as it related to the question whether there was an encroachment is without merit, as the record discloses no error of law or abuse of discretion in that branch of the case. See Kozlowski v. Golis, 2 Mass. App. Ct. 797 (1974). Compare Boston v. Santosuosso, 307 Mass. 302 , 323-324 (1940). The most damaging testimony given by Forbes at the jury trial about the activities of the survey

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crew in 1959 was in response to questions not objected to individually but subject only to general "exceptions" to "this line of questioning," which bring nothing to this court (see Commonwealth v. Hinckley, 1 Mass. App. Ct. 195 , 198-199 [1973]; Commonwealth v. Morrison, 1 Mass. App. Ct. 632 , 636, & fn.3 [1973]); the testimony on that subject elicited by questions to which valid objections were made was cumulative or otherwise harmless to the plaintiff (compare Vernazzarro v. A.A. Will Corp. 2 Mass. App. Ct. 885 [1974]). The only stated ground for the plaintiff's objection to the introduction of the sketch in evidence and exception to its admission as exhibit 11 was that it was "not stamped by Mr. Forbes"; that ground (understandably) is not now pressed, and we do not consider the other grounds for exclusion now urged in the plaintiff's brief on appeal. Kagan v. Levenson, 334 Mass. 100 , 107 (1956). The questions put to Forbes regarding the supposed starting point of the center line were properly excluded, as Forbes had unequivocally testified that he had no personal knowledge whether there was such a starting point and the plaintiff's counsel ignored the trial judge's suggestion that the questions be asked in hypothetical form. See Leach & Liacos, Massachusetts Evidence, 100-101 (4th ed. 1967), and cases cited. The plaintiff's motion for a directed verdict and the first of its "requests for rulings of law" (which was equivalent to a motion for a directed verdict) were correctly denied, because the case was not one in which the defendants offered no evidence contradicting the plaintiff's claim (contrast Kelly v. Halox, 256 Mass. 5 , 9 [1926]), or one in which the plaintiff's documentary evidence as to the location of the boundary line was unambiguous (compare Jones v. Gingras, 3 Mass. App. Ct. 393 , 397 [1975]) or conclusive (see F.P. Battery Research Corp. v. Major Mach, Corp, 342 Mass. 780 [1961]; contrast Meteor Prod. Co. Inc. v. Societe d'Electro-Chemie et d'Electro-Metallurgie, 263 Mass. 543 , 547-548 [1928]). If the plaintiff's request numbered two be interpreted as one for an instruction limiting the purpose for which the jury might consider exhibit eleven, the request was properly denied for the reason that no limiting instruction was sought by the plaintiff at the time the exhibit was introduced in evidence. See Solomon v. Dabrowski, 295 Mass. 358 , 359-360 (1936). And if the request was filed in an attempt to have the judge comment on a portion of the evidence, the judge was not required to grant it. Sullivan v. John Hancock Mut. Life Ins. Co. 342 Mass. 649 , 657 (1961).

Order on motion for jury issues affirmed.

Judgment affirmed.