Union Glass Co. v. City of Somerville

Braley, J.

The petitioner’s exceptions having been duly allowed, and no motion to dismiss the exceptions having been filed in this court by the respondent, the questions presented by the record are properly before us. Doherty v. Phoenix Ins. Co. 224 Mass. 310, 312.

The petitioner is a domestic corporation, and its lands having been entered upon for the purposé of raising the grade of certain public ways in connection with the abolition of a railroad crossing at grade, this petition was brought under St. 1906, c. 463, Part I, § 37. The only issue at the trial was the amount of damages. But, the discrepancy between the amount claimed and the amount awarded by the verdict being very substantial, the petitioner asks that a new trial be ordered because of erroneous rulings in the admission of evidence.

The annual reports made by the petitioner to the Secretary of the Commonwealth, as required by St. 1903, c. 437, § 45, R. L. c. 110, § 51, Pub. Sts. c. 106, § 54, and the letter to the local assessors, all of which were signed by its president, whose testimony placed the value materially in excess of the statements of value of the corporate property shown by the reports and letter, as well as the returns to the Tax Commissioner for the years 1892 to 1899, inclusive, and for 1901, 1902 and 1903, made under Pub. Sts. c. 13, § 38, as amended, and R. L. c. 14, § 37, which, although not signed by the witness, the jury could find were rendered with his *204knowledge and consent, were on the record admissible in the discretion of the judge as bearing upon the credibility of the witness and upon the weight which should be given to his testimony. Brigham v. Clark, 100 Mass. 430. Whipple v. Rich, 180 Mass. 477. Jennings v. Rooney, 183 Mass. 577. Peabody v. New York, New Haven, & Hartford Railroad, 187 Mass. 489, 491, 492. White Sewing Machine Co. v. Phenix Nerve Beverage Co. 188 Mass. 407, 408.

It also is plain that, having been duly executed by the petitioner’s officers, all the reports and returns above described were relevant evidence in behalf of the respondent. Pub. Sts. c. 13, § 38, and amendatory acts. R. L. c. 14, § 37. St. 1903, c. 437, § 45. White Sewing Machine Co. v. Phenix Nerve Beverage Co. supra. Smith v. Paul Boyton Co. 176 Mass. 217. Pells v. Webquish, 129 Mass. 469, 473.

Nor does error appear in the admission of the evidence of the respondent’s expert. The judge was to determine whether the witness was sufficiently qualified to give an opinion, and his discretion is not shown to have been wrongly exercised. Carroll v. Boston Elevated Railway, 200 Mass. 527, 533.

It is contended further that, even if the returns were admissible, the jury should have been instructed to disregard the item showing the market value of the shares. This instruction should have been given. While required by statute to be stated for the information of the Commissioner who shall annually ascertain from the returns or in any other manner the market value of the shares of the capital stock of each domestic corporation to enable him to ascertain the fair cash value of all the shares constituting its capital stock for the purpose of assessing the franchise tax, the petitioner by this item did not represent that the market or trading value of its capital stock corresponded with the value of its real property for which damages were claimed. St. 1909, c. 490, Part III, § 41.

It is unnecessary to decide whether under St. 1913, c. 716, § 1, this error would have been sufficient to require a new trial, as the returns for the years 1904 to 1911 should have been excluded.

By St. 1903, c. 437, § 48, which took effect on August 1, 1903, they are made confidential or privileged, and can no longer be introduced as pointed out in Brackett v. Commonwealth, 223 Mass. 119, 126, decided since the trial of the case at bar. The admission *205of this material evidence which was seriously prejudicial to the petitioner, requires that the exceptions should be sustained.

So ordered.