ROBERT SHINE vs. CAMPANELLA & CARDI CONSTRUCTION COMPANY & another.

WILKINS, C.J. The plaintiff, while operating his automobile, was hurt in a collision with a truck owned by the corporate defendant and operated by the defendant Fortin. This action of tort was referred to an auditor whose findings of fact were not to be final. He found for the defendant. A motion by the plaintiff to strike portions of the report was allowed. The case was later tried before another

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judge sitting with jury, who returned verdicts for the plaintiff. The only exception is to the action on the motion to strike.

The defendants contend that the judge's action on the report did not comply with G. L. (Ter. Ed.) c. 221, Section 56, which provides in part: "The auditor's findings of fact shall be prima facie evidence upon such matters only as are embraced in the order; but the court at the trial shall exclude any finding of fact which appears in the report to be based upon an erroneous opinion of law, or upon inadmissible evidence."

The quoted language first appeared in St. 1914, c. 576, Section 2. The phrase beginning, "the court at the trial shall exclude any finding," is a provision as to what the trial judge is to do in the nature of a ruling on evidence. It is not to be taken to preclude a judge before trial from acting upon a motion to strike part of the auditor's report. Orderly procedure often would require that a determination of the extent to which an auditor's report may be received in evidence should be made before the day of trial and even before final preparation for trial and the summoning of witnesses. This sequence is a matter of common sense and would enable a seasonable recommittal in an appropriate case. No motion to recommit was made in the case at bar.

What we have said also disposes of the defendants' argument that the judge acted without authority where the parts struck out were not "based upon an erroneous opinion of law, or upon inadmissible evidence." Those words are not applicable to a judge passing upon a motion to strike before trial. The matters struck were largely recitals of evidence which the auditor was not authorized to make. [Note p151-1] It was a proper exercise of judicial discretion to delete them. A heavy burden rests upon a party who contends that he has been harmed by the granting of a motion to strike out statements of evidence voluntarily introduced

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by an auditor into his report. Davis v. Noone, 341 Mass. 488, 490-491, and cases cited.

An examination of the four parts of the report struck out shows that, in any even, the defendants were not harmed. The first two parts were narratives of some of the plaintiff's testimony on both direct and cross-examination. As to these, the defendants argue, "The inconsistency and obvious endeavor to rationalize found in the plaintiff's testimony before the auditor may have been compelling and persuasive reasons for the auditor's conclusion." The third part was, "The above is substantially a resume of all the credible testimony given before me." This "credible" testimony included that of the plaintiff which the defendants contend, and we agree, was inconsistent. On the face of the report, it could not all have been credible. In context, it was misleading. The fourth part was an introductory clause, namely "Based upon the foregoing facts, and such inferences and conclusions as I am justified in drawing therefrom, having seen the witnesses and observed their demeanor and manner while giving testimony." This added nothing to the report, and its elimination subtracted nothing.

It is contended that "the action of the first judge was in effect a ruling on the admissibility of evidence to be offered at a later trial before a different judge, without knowing what the evidence would be at the later trial." In a sense it was, but that does not mean that we must accept the further contention that the first judge deprived the second judge of inherent power to use discretion and that he improperly restricted the jury trial. The record does not show what occurred at that trial with reference to the auditor's report; whether, for example, the defendants asked for any additional ruling in that respect. The second judge could have relied upon the ruling of the first judge as the law of the case. See Papetti v. Alicandro, 317 Mass. 382, 385, 390; Poland v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., ante, 75, 79-80, and cases cited. On the other hand, he would not have been

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obliged to apply the rule of the law of the case. Gleason v. Hardware Mut. Cas. Co. 331 Mass. 703, 709-710. His was the power to act to the end that a just result be reached. Falzone v. Burgoyne, 317 Mass. 493, 498, and cases cited. In his discretion, he could have revised the earlier ruling in any way which seemed proper to him.

Exceptions overruled.