Home JOHN R. DUNN, JR. vs. HOWARD K. HOLLADAY & another.

6 Mass. App. Ct. 842

February 2, 1978

1. The first count of the complaint should not have been dismissed as against the defendant National Life Insurance Company (National), because the plaintiff would be entitled to damages against that defendant if he should prove, pursuant to paragraph 1.6 of the count, that Holladay, acting as agent for National, induced annuitants to replace annuity contracts generated by the plaintiff with new ones for the purpose of causing the plaintiff to lose "persistency" commissions and service fees on the replaced contracts. Compare Druker v. Roland Wm. Jutras Associates, Inc., 370 Mass. 383, 385 (1976); Fortune v. National Cash Register Co., 373 Mass. 96, 103-104 (1977). 2. We agree with the conclusion reached by the judge that the assignment of the plaintiff's future commissions was not subject to the restrictions imposed by G. L. c. 154, Section 3, on assignments of "future wages" (although it may fall within the restrictions of Section 6 as an assignment of "earnings," as to which see Jenks v. Dyer, 102 Mass. 235 [1869]; Kendall v. Kingsley, 120 Mass. 94 [1876]; Jason v. Antone, 131 Mass. 534 [1881]; compare Chester v. McDonald, 185 Mass. 54 [1904], and In re Nance, 556 F.2d 602 [1st Cir. 1977], a point we need not decide). To the same effect, see Union Life Ins. Co. v. Perkins, 257 F. Supp. 154, 158 (W.D. Ark. 1966); Crepeau v. Renewal Guar. Corp., 29 Colo. App. 23, 27 (1970); Fitch v. Pacific Fid. Life Ins. Co., 54 Cal. App. 3d 140, 145-148 (1975). The arguably contrary results reached in First Natl. Bank v. Hellen, 392 F.2d 58 (9th Cir. 1968), and Laird v. Carton, 196 N.Y. 169, 174-175 (1909), are based on statutory language clearly distinguishable from ours. It follows that the motion of both defendants to dismiss the fourth count of the complaint was correctly allowed. The judgment is affirmed as to count 4 and reversed as to count 1.

So ordered.


6 Mass. App. Ct. 842

February 3, 1978

As no question of the sufficiency of the evidence that the defendant was the robber has been raised on appeal, it is only necessary for us to consider whether it was error for the judge to admit the defendant's statements. The "relevancy of testimony depends upon the question, whether it has a rational tendency to prove the issues made by the pleadings or other incidental material issues developed in the course of the trial." Commonwealth v. Fillippini, 1 Mass. App. Ct. 606, 611 (1973), quoting Commonwealth v. Durkin, 257 Mass. 426, 427-428 (1926). The trial judge has great discretion in admitting evidence, and his decision will be sustained if the evidence tends even remotely to show the existence of a fact in controversy. Commonwealth v. Fillippini,

Page 843

supra. See Torcia, Wharton's Criminal Evidence Section 155 (13th ed. 1972). There was sufficient coincidence of factors (e.g., sex of the accomplice, caliber of the handgun) to meet this test. The fact that the defendant's statement differed in several respects from the circumstances of the crime as testified to by the victim goes to the weight and not the admissibility of the evidence. Accordingly, we conclude that the judge did not err or abuse his discretion. Moreover, in light of the overwhelming incriminating evidence introduced at trial, we would have concluded that, if admission of the statement had been error, that error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 21-24 (1967). See Harrington v. California, 395 U.S. 250, 253-254 (1969); Commonwealth v. Morgan, 369 Mass. 332, 340-342 (1975), cert. denied, 427 U.S. 905 (1976). Contrast Milton v. Wainwright, 407 U.S. 371, 382-384 (1972) (Stewart, J., dissenting).

Judgment affirmed.