Lyons v. Levine

The minor plaintiff brings this action to recover for personal injuries incurred in an automobile collision. Her father seeks to recover for hospital and medical expenses. An auditor found for the defendant, as did the jury in the later jury trial. The only exception is to a statement of the trial judge concerning the plaintiffs’ opening. He made the comment that it was improper for the plaintiffs’ counsel to say that the defendant “was so concerned about this little girl that he . . . still went and checked on her to see what her condition was. We believe that . . . will show his admission of responsibility.” The trial judge correctly ruled that the “fact that a party picked somebody up and took him to the hospital and was solicitous for the welfare of the party . . . cannot be construed as an admission of liability.” That a person acts as a decent citizen with proper humane sensibilities cannot be distorted into an admission of liability. See Carpenter v. Boston & Maine R.R. 295 Mass. 103, 105-106; Wigmore, Evidence (3d ed.) § 283a. See also Nager v. Reid, 240 Mass. 211, 214; Murray v. Foster, 343 Mass. 655, 660. This is a frivolous exception. If the defendant’s counsel had assisted us with even a short brief, double costs would have been awarded. Exceptions overruled.