Tully v. Mandell
| Decision Date | 30 November 1929 |
| Citation | 269 Mass. 307,168 N.E. 923 |
| Parties | TULLY v. MANDELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; O'Connell, Judge.
Action by Grace M. Tully against Israel Mandell. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.
F. Adams, of Boston, for defendant.
Henry F. Wood and Charles T. Sexton, both of Boston, for plaintiff.
This is an action of tort to recover damages from a dentist for personal injuries, alleged to have been suffered by the plaintiff because of the breaking of a hypodermic needle used for the purpose of anesthesia preparatory to the extraction of a tooth. It was admitted that the needle broke when inserted in the plaintiff's jaw by the defendant.
The plaintiff introduced testimony tending to prove that the defendant said immediately after the occurrence that he did not know how it could have happened, that it was all his fault and not to worry about it, that he would take care of everything. The defendant denied that he made the statement and testified that the cause of the breaking of the needle was the sudden turning by the plaintiff of her head after he had warned her not to move. He also described the sterilization of the instrument, the exact manner in which he made the injection, and testified that he used a new needle purchased from a regular dealer in dental supplies and made by a well known manufacturer, and that he adopted in making the injection the technique he had always used.
The judge charged the jury that if the defendant warned the plaintiff not to move her head when the injection was made, but she did move and the movement caused the needle to break, she could not recover. He refused to give the defendant's requests for rulings to the effect that if the jury found that the defendant told the plaintiff that it was his fault the needle broke, that statement is not conclusive against the defendant, that the burden is on the plaintiff to show that the defendant was negligent, and such a statement is to be considered by them only as bearing on the question whether the defendant was in fact negligent. He charged the jury, in substance, that if they should find that the defendant stated it was his fault that the needle broke, the defendant thereby admitted his negligence and is liable to the plaintiff for such damages as the plaintiff establishes to the satisfaction of the jury. At another place in his charge he instructed them that the plaintiff met the requirements of law...
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Doull v. Foster
...that an injury was ‘his fault’ sufficed to warrant a jury's finding of negligence. See Collins, supra, citing Tully v. Mandell, 269 Mass. 307, 308-309, 168 N.E. 923 (1929). No such admission, however, is at issue here.During her testimony at trial, Foster admitted that she did not inform Do......
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O'Malley v. Putnam Safe Deposit Vaults, Inc.
...it be that, "was but a part of [the] evidence to be weighed with the rest, and [O'Malley] was not concluded by it." Tully v. Mandell, 269 Mass. 307, 309, 168 N.E. 923 (1929). Liacos, Handbook of Massachusetts Evidence 277 (5th ed. 1981).4 The only time, other than on appeal, that this argum......
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Collins v. Baron
...that a doctor's admission that an injury was "his fault" sufficed to warrant a jury's finding of negligence, Tully v. Mandell, 269 Mass. 307, 308-309, 168 N.E. 923 (1929), and we do not perceive the defendant in this case to argue the contrary. If the plaintiff was entitled to an instructio......
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