Home PATRICIA ANN LYONS & another vs. LOUIS LEVINE.

352 Mass. 769

March 31, 1967

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.) Section 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.

Home MARY CALLEDARE vs. BERNICE G. SAWYER.

352 Mass. 769

March 31, 1967

The plaintiff, a paying guest, was hurt using a slide at a swimming pool owned by the defendant and maintained as a part of her lodge. In this action of tort alleging that her injuries were due to improper maintenance or to the unsafe condition of the pool, the judge directed a verdict for the defendant. There was no error. The plaintiff's own testimony was that she had never used a slide before, and that she slid down backwards in a sitting position and struck her head on the bottom of the pool. There was no evidence of the defendant's negligence.

Exceptions overruled.

Home NELSON W. SHERMAN'S CASE.

352 Mass. 769

March 31, 1967

The Commonwealth, a self-insurer, appeals from a decree of the Superior Court dated June 30, 1966, awarding compensation for the periods from September 7 to October 29, 1962, and from March 27, 1965, to date and continuing. The reviewing board affirmed and adopted the findings of the single member

Page 770

awarding compensation. The employee, a repair foreman in the Department of Public Works, on September 6, 1962, while checking a section of highway, picked up a heavy guardrail, and experienced severe chest pains. On returning to the office he reported the incident to the maintenance foreman. His report of injury dated October 1, 1962, the single member found, "clearly sets forth that claimant did report incident of September 6, 1962, on the date of its occurrence." It was agreed before the single member that there was total disability from September 7 to October 29, 1962. The employee filed claim for compensation on February 8, 1965. The single member found that the self-insurer had full knowledge of the incident immediately, that there was no delay or lack of notice, and that the self-insurer was not prejudiced. Brown's Case, 334 Mass. 343 , 347-348. Lendall's Case, 342 Mass. 642 , 646. He also found that the "employee did suffer personal injury arising out of and in the course of his employment while lifting guardrail on September 6, 1962. Said injury consisted of episode of coronary insufficiency, which resulted in subsequent alteration of the coronary artery blood flow, the subsequent exacerbation of the frequency and severity of anginal symptoms and the disabling angina pectoris, which has persisted to the present date and has caused claimant to be totally disabled for work since March 27, 1965." The findings are supported by evidence and not tainted by error of law. Webb's Case, 318 Mass. 357 , 358. The decree is affirmed. Costs of appeal are to be determined by the single justice.

So ordered.