Gibson v. McGuiness

Crosby, J.

This is an action of tort to recover for personal injuries and property damage, sustained by the plaintiff as the result of a collision between her automobile, in which she was riding, and an automobile operated by the defendant.

At the time of the collision the plaintiff’s automobile was operated by her son, who testified at the trial. During his cross-examination by counsel for the defendant he was asked: “You had been operating a car under Massachusetts license for about two months before this accident?” The question was excluded subject to the defendant’s exception. Whether the collision between the cars was due to negligence of this witness' or that of the defendant was to be determined by the conduct of the witness. The length of time he had been licensed to run an automobile was clearly incompetent and immaterial. The question was rightly excluded. Lang v. Boston Elevated Railway, 211 Mass. 492 . Polmatier v. Newbury, 231 Mass. 307, 309 . Reardon v. Boston Elevated Railway, 247 Mass. 124, 127 . Hunt v. Boston & Maine Railroad, 250 Mass. 434 . Conrad v. Mazman, 287 Mass. 229, 235-236 .

The second exception relates to the exclusion of a certain letter offered in evidence by the defendant. One Chase was called as a witness by the defendant and testified that he was a practising attorney, that he had with him a letter received from counsel for the defendant, and that he and his father were counsel for the plaintiff. The letter, which was addressed to the father of the witness, was as follows: “Con *155 firming Mr. Lewis’ telephone conversation with your son this morning, it is our understanding that no present or permanent injury is claimed in this case. If we are incorrect in our understanding, will you please so advise us?” The letter was signed by the firm who represented the defendant. The plaintiff objected to the admission of the letter and it was excluded subject to the defendant’s exception. The answer to the question that he had brought with him the letter “confirming a certain conversation” followed by the production of the letter by the witness, merely related to the identification of the letter. The witness did not testify that the . letter confirmed the conversation referred to, and was not asked if the letter confirmed any conversation had between counsel. There was no evidence that the plaintiff’s attorney ever made the statement contained in the letter or, if. it was made, that it was authorized by the plaintiff. If the defendant’s counsel wanted to know if their understanding of the plaintiff’s claim was correct they could have made inquiry of the witness, who was one of the plaintiff’s attorneys. Even if, having received the letter, the plaintiff’s attorney failed to answer it he did not thereby admit that the understanding of the defendant’s counsel, as stated in the letter, was correct. It is plain that the letter was self-serving and was properly excluded. Callahan v. Goldman, 216 Mass. 234, 237, 238 . Pye v. Perry, 217 Mass. 68, 71 . Holton v. Denaro, 278 Mass. 261, 263 .

Although other exceptions were saved by the defendant at the trial none is argued except the ones hereinbefore dealt with. The others are treated as waived.

Exceptions overruled.