Home JOHN R. SWANTON vs. HOME COAL COMPANY, INC.

354 Mass. 758

March 28, 1968

A count in tort for negligence was joined with a count in contract for the same cause of action. Both alleged damage caused by the defendant, a house mover, while moving a house owned by the plaintiff. The count in contract alleged that the defendant was a common carrier. By a series of palpably erroneous rulings on evidence, to many of which exception was taken, the judge denied the plaintiff a fair opportunity to present his case for negligence. At the close of the evidence, he "called upon the plaintiff" to elect between the two counts. This was error, G. L. c. 231, Section 7, Sixth, but not reversible error since the plaintiff did not except to the order. He elected to rely on the contract count. The judge then, subject to exception, directed a verdict on the contract count on the ground that the defendant was not a common carrier. He had previously excluded, however, subject to exception, an attested certificate that the defendant was an irregular route common carrier of buildings. This was error and ground for reversal. We need not cite other rulings which were prejudicial to the presentation of the plaintiff's case on the contract count. The exceptions are sustained with leave to the plaintiff to amend.

So ordered.

Home FIFTY-FIVE MARKET STREET, INC. vs. LYNN REDEVELOPMENT AUTHORITY.

354 Mass. 758

March 28, 1968

This is a petition for the assessment of damages on account of a taking in Lynn. The case is here on the petitioner's exception to the exclusion of "evidence offered by the petitioner of the respondent's appraiser's opinion of the fair market value of the petitioner's premises." After two witnesses called by the petitioner had testified to the value of the property taken, the petitioner called one Ambrose as its witness. Ambrose testified "to his background in the City of Lynn in the appraisal and real-estate fields" and that he had made a study and appraisal of the premises for and at the request of the respondent. He was asked by the trial judge whether he was present "voluntarily or under summons" and he replied that he was present "under summons." The judge then excluded the question as to the witness'

Page 759

opinion of the fair market value of the property taken. On the authority of Ramacorti v. Boston Redevelopment Authy. 341 Mass. 377 , 379-380, there was no error.

Exceptions overruled.