Dempsey v. Goldstein Bros. Amusement Co.

• Decision Date: 02 January 1919
• Citation: 231 Mass. 461,121 N.E. 429
• Parties: DEMPSEY v GOLDSTEIN BROS. AMUSEMENT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 461

121 N.E. 429

DEMPSEYvGOLDSTEIN BROS. AMUSEMENT CO.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 2, 1919.

Report from Superior Court, Hampden County; Christopher T. Callahan, Judge.

Action of tort for personal injuries by Margaret Dempsey against the Goldstein Bros. Amusement Company, resulting in verdict for plaintiff. Defendant moved for new trial, which was denied, and the case reported to the Supreme Judicial Court on the question whether certain evidence was properly admitted. Exceptions ordered overruled.

Richard J. Morrissey and J. Lyman Gray, both of Springfield, for plaintiff.

Wm. H. McClintock, Edward A. McClintock, and David B. Hoar, all of Springfield, for defendant.

BRALEY, J.

A medical expert called by the defendant who had made a physical examination of the plaintiff at the hospital having testified that she had not suffered any permanent injury, the question put in cross-examination, ‘Who asked you, Doctor, to examine this woman?’ was relevant, and the answer, ‘Mr. Chetworth, representing the Casualty Company of America, the manager,’ was responsive. But before the question was asked, counsel for the plaintiff during a conference by the parties with the presiding judge, had been informed that the defendant held a policy of indemnity insurance, and upon the disclosure shown by the answer defendant's counsel moved that it be stricken out on the ground, previously stated to the judge, that if the fact of insurance were admitted, the defendant might be prejudiced on the question of liability, or in the assessment of damages. It is settled that evidence that the defendant was insured against accidents could not have been introduced as an admission of negligence. Anderson v. Duckworth, 162 Mass. 251, 38 N. E. 510;Perkins v. Rice, 187 Mass. 28, 72, N. E. 323;Sibley v. Nason, 196 Mass. 125, 81 N. E. 887,12 L. R. A. (N. S.) 1173, 124 Am. St. Rep. 520,12 Ann. Cas. 938. But the answer under discussion is not in the nature of an admission. Nor was it received in evidence as such. While the witness does not appear to have been an officer, agent or servant of the defendand corporation, he had been called and had given evidence in its behalf, and if the jury accepted his opinion the measure of the plaintiff's damages would be materially affected. It was competent for the plaintiff to show if she could that he was not disinterested, and ordinarily the fact that he had been employed and paid by adversary interests to make the examination would be admissible. Mayhew v. Thayer, 8 Gray, 172, 177.

In Stevens v. Stewart-Warner Speedometer Corporation, 223 Mass. 44, 111 N. E. 771, the question excluded on cross-examination was, ‘Who were you working for?’ and the opinion holds that the answer which counsel expected, ‘The Federal Insurance Company, which insured the car against theft,’ should have been admitted as tending to affect the weight to be given to the testimony of the witness upon his direct examination. It is true the action in that case was brought for the benefit of the insurance company which had indemnified the owner. A defendant, however, who is insured can properly call a witness even if as the paid employé of the insurance company he has prepared the case for trial,...