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April 27, 1978


Hampden. Two actions of contract. Writs in the Superior Court dated December 29, 1967, and July 31, 1968, respectively. The actions were tried before Greaney, J., and a motion for a new trial was heard by him.

Hale, C.j., Keville, & Armstrong, JJ.


Practice, Civil, Argument by counsel, New trial, Judicial discretion, Exceptions. Evidence, Failure to produce witness.

The opinion of the court was delivered by: Keville

Where a party had made a tactical decision to forgo calling witnesses and to rely instead solely on an auditor's report, it was inappropriate for opposing counsel to suggest in his closing argument that the testimony of the absent witnesses would have been unfavorable to that party. [294-295]

A Judge in a civil action improperly exercised his discretion in granting a new trial on the basis of inappropriate argument by counsel where there were insufficient indicia that the inappropriate remarks resulted in a miscarriage of Justice. [295-297]

A party's failure to perfect a timely bill of exceptions, under the rules of the Superior Court prevailing at the time of a Judge's ruling on a motion for a stay, precluded review of the ruling by this court. [297-298]

These are cross appeals in two cases, consolidated for trial and on appeal, involving a construction contract dispute between Multicon Construction Corporation (Multicon), the owner-general contractor, and Robert Evans (Evans), a subcontractor. The first case is an action in contract in which Evans seeks to recover $91,411.19 from Multicon for earth moving and related work in Springfield. In the second action Multicon alleges that it has been damaged by Evans' breach of a written contract between the parties.

The matters were tried three times: once, before an auditor, facts not final, and twice to juries in the Superior Court. The auditor issued a report with a finding that each party was liable to the other for damages which, when set off, left a balance in favor of Evans in the sum of $542.12. The cases were then tried to a jury who returned two verdicts: one in favor of Evans in the sum of $62,100, and the other dismissing Multicon's action. After the jury verdicts, a Superior Court Judge granted Multicon's motion for a new trial. The matters were again tried to a jury. At the second trial the jury returned verdicts in favor of Evans in the sum of $53,653.30. Again Multicon's action was dismissed. Both parties have appealed. Evans argues that the Judge erred in granting Multicon's motion for a new trial. Multicon contends that a different Judge erred in refusing at the commencement of the proceedings to refer the matters to arbitration in accordance with the terms of the written contract between the parties. Multicon also challenges the propriety of certain rulings and instructions to the jury by the Judge during the second trial.

After the close of Evans' case in the first jury trial, Multicon's attorney stated in his opening that Multicon had decided not to "bring back the witnesses who testified originally in this twenty-two day hearing in front of the Auditor . . . . he decision was made that rather than do that . . . . read the Auditor's report to the jury as being our presentation of the case." Pursuant to this statement, Multicon presented no witnesses before the jury and rested its case solely upon the auditor's report.

In his closing argument Evans' attorney assailed both the auditor's report and the trial strategy employed by his opponent. In commenting on Multicon's decision not to call witnesses before the jury Evans' attorney stated, inter alia, "I submit that you can draw an inference from that, that you can infer from that that something is wrong when they come up and say this isn't right, that isn't right. They are not here to say one thing isn't right. I submit the reason why they are not here to contradict anything is because there is nothing to contradict. There is not one word of what those men had to say that they could contradict and tell the truth."

After the jury returned their verdict in Evans' favor, Multicon brought a motion to set aside the verdict or, in the alternative, for a new trial, alleging in part that "he verdict appears to be the product of the inflammatory, misleading and prejudicial closing argument of Evans' counsel rather than of the facts and law." The Judge denied Multicon's motion to set aside the verdict, yet he allowed the motion for a new trial solely on the ground stated above.

In ruling on that motion, the Judge found that the comments by Evans' attorney concerning Multicon's failure to call one Meyer, its principal witness at the hearings before the auditor, as a witness before the jury, were improper and highly prejudicial. *fn2 The Judge also found that there was sufficient evidence presented by Evans to warrant the jury's finding in his favor on the issue of liability and to warrant their finding on damages. In response to Evans' requests, the Judge ruled that the evidence required a finding that the verdict was not contrary to the weight of the evidence, and that the damages awarded by the jury were not excessive. Nonetheless the Judge concluded, based upon the remarks of Evans' counsel, that there be a new trial "in the interests of Justice."

Evans contends, first, that the Judge committed an error of law ruling that Evans' final argument was improper and, second, that even if the argument was unjustified, the granting of a new trial on the grounds stated by the Judge was an improper exercise of his discretion. We cannot conclude that the Judge was incorrect as a matter of law in his Conclusion that the comments of Evans' attorney were unjustified. "The practice of permitting counsel to comment on the failure of the opposing party to call witnesses to facts needs to be used with caution, and such comment should be permitted only where it appears that the witnesses could have been produced, and that it is a fair inference from the conduct of the party, under all the circumstances, that he knew or believed that the ...

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