Practice, Civil, Auditor's report, Conduct of trial, Exceptions. Evidence, Relevancy and materiality, Opinion: expert. Witness, Expert.
In an action of contract which has been referred to an auditor who has filed a report, if one of the parties, without having moved to recommit the report to the auditor, or to have portions of it stricken out, has moved "to discharge the report" on the grounds that the hearings before the auditor were conducted in a manner unfair to him, and that some of the findings of the auditor were prejudicial to him and not germane to the issue referred to the auditor, and the motion has been denied, and if the report is offered in evidence at the trial of the case, it is the duty of the presiding judge to admit it.
An appeal from an order denying a motion of one of the parties to an action of contract "to discharge" a report of an auditor to whom the case had been referred without any agreement that the auditor's findings of fact should be final, will not be sustained, where it does not appear that the judge who heard the motion found that allegations of fact upon which the party making the motion relied were true, but it does appear that the motion was directed solely to the discretion of the court.
An auditor, to whom was referred an action of contract for the value of professional services rendered by the plaintiff, an attorney at law, to his client, the defendant, stated in his report "I find that it must have been evident some time before the termination of the relation of attorney and client . . . that from [the defendant's] . . . inability to speak the truth on any topic, even to her own counsel, it was difficult to be of material assistance to her." At the trial of the case before a jury, the plaintiff having introduced the report in evidence, the defendant called as a witness an attorney at law who had acted as her counsel for a year after the services of the plaintiff were rendered, who testified as to the defendant's general reputation for truth and veracity, but the presiding judge refused to allow him to be asked whether, during his relationship with the defendant as a client, he had found her to be a truthful woman. The defendant's counsel stated that the question was asked to rebut the quoted portion of the auditor's report. Held, that the question rightly was excluded, since the counsel referred to by the auditor was the plaintiff, and not any previous or subsequent counsel.
An action of contract was referred to an auditor. The defendant appeared for herself at the hearings before the auditor. At the trial before a jury after the filing of the auditor's report, it appeared that during the hearings before the auditor the plaintiff had moved that a guardian ad litem of the defendant be appointed. The plaintiff, in order to rebut a contention of the defendant, which the defendant's counsel stated that he would make in his argument to the jury, that the plaintiff in asking for the guardian had acted in bad faith, offered evidence tending to show that, before the plaintiff asked for the guardian, the auditor of his own accord had interviewed the judge and had laid before him the facts upon which the plaintiff had relied in making his motion, and that the judge had suggested that a motion be made for a guardian, and that "any one in the case could make that." The evidence was admitted and the defendant excepted. Held, that the evidence was admitted rightly, since it was relevant and material to rebut the contention of the defendant.
On objection by the defendant at a trial to a hypothetical question put by the plaintiff to an expert witness, on the ground that the question assumed facts which were not in the evidence, the presiding judge allowed the question to be put, stating to the jury both at the time it was put and afterward in his charge that, if they did not find the facts to be as they were assumed to be in the question, they should disregard the answer. Held, that the defendant had no ground for exception.
SHELDON, J.
The court rightly admitted the auditor's report in evidence. A motion to discharge the report had been denied by the court; and the defendant never asked to have the report recommitted, and expressly declined to ask that any part of it be stricken out. If there were any such errors in the report as were claimed by the defendant, which does not appear, the defendant's remedy was by moving to recommit the report or to have any erroneous or injurious portion stricken out. R.L.c. 165, § 58. Briggs v. Gilman, 127 Mass. 530, 531. Collins v. Wickwire, 162 Mass. 143. Sullivan v. Arcand, 165 Mass. 364, 367. Under the circumstances appearing at the trial, it was the duty of the court to admit the report in evidence. R.L.c. 165, § 55.
And the previous order of the judge refusing to discharge the auditor's report must be affirmed. It does not appear that the judge found any of the alleged facts stated in the reasons assigned in the defendant's motion to be true. So far as any of them may have existed, they were addressed solely to the discretion of the court. Craig v. French, 181 Mass. 282. Tripp v. Macomber, 187 Mass. 109, 110. Allwright v. Skillings, 188 Mass. 538. Hart v. Brierley, 192 Mass. 147. There was here no agreement that the auditor's findings of fact should be final, and the rule of Pettey v. Benoit, 193 Mass. 233, is not applicable.
The exclusion of the question put to Mr. Feely was proper. Even if the defendant's reputation for truth and veracity had been put in issue, this question would not have been competent. Commonwealth v. Kennon, 130 Mass. 39. The argument that the question should have been admitted to contradict the finding of the auditor as to "her inability to speak the truth on any topic even to her own counsel," rests upon a misconception of the report. The auditor was speaking of the difficulties thrown in the plaintiff's way while acting as counsel for the defendant by reason of her untruthfulness to him, among other causes; and when he mentioned her counsel he manifestly referred to the plaintiff, who at the time spoken of had been the defendant's counsel. Testimony that she had told the truth to Mr. Feely could have of course no bearing upon the question whether she had been unable to tell the truth to her former counsel.
The statement which it was agreed would have been made by Mr. Justice Fessenden was rightly admitted to meet the argument against the plaintiff's good faith in asking for the appointment of a guardian ad litem which was not only foreshadowed but avowed by counsel for the defendant.
The hypothetical question put to the plaintiff's experts was properly admitted with the restriction put upon it by the judge. Anderson v. Albertstamm, 176 Mass. 87. Commonwealth v. Tucker, 189 Mass. 457, 477. If the defendant's counsel desired to stand upon the distinction between the word "may" as used by the judge, and the word "must," he should have called this explicitly to the judge's attention. And for the same reason the defendant's exception to the ruling made in the charge to the jury as to this hypothetical question must be overruled.
We do not find any error in the instructions given to the jury. The duty of the plaintiff to the defendant as his client was clearly and fully stated. Whether it was or was not against the interest of the defendant that her sister should join in the petition for the defendant's removal from her position as the executrix of her father's will does not appear from anything in the bill of exceptions. It may have been for the defendant's advantage to have the objections of all parties considered and decided in one petition. This whole matter was fairly left to the jury.
The exception to the instruction that it must be assumed that the auditor, as an officer of the court acting in a judicial capacity, had acted in a proper manner, has not been argued; and we treat it as waived. We cannot doubt the correctness of the ruling.
It is not necessary to consider separately those exceptions to the charge which are not disposed of by what has been said. The subject matter of all of them was properly left to the jury, with full and explicit instructions. We have carefully considered all the suggestions made by counsel, and find no error in the way that the case was submitted to the jury. The order denying the defendant's motion to discharge the auditor's report must be affirmed, and the exceptions must be overruled.
So ordered.