Precourt v. Driscoll

• Decision Date: 01 December 1931
• Citation: 157 A. 525
• Parties: PRECOURT v. DRISCOLL (two cases).
• Court: New Hampshire Supreme Court

157 A. 525

PRECOURT

v. DRISCOLL (two cases).

Supreme Court of New Hampshire. Hillsborough.

Dec. 1, 1931.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Actions by Archie F. Precourt and by Susan P>. Precourt against Frances E. Driscoll. Verdicts for defendant. Case transferred on plaintiffs' exceptions.

Judgments for defendant.

Actions for negligence for personal injuries to the plaintiff Susan and for resulting damages to her husband, the other plaintiff. Trial by jury, with verdicts for the defendant. The plaintiffs were passengers in an automobile driven by the defendant. It overturned on a curve at the foot of a hill near Manchester, Vt. FurtheV facts appear in the opinion. Transferred by Young, J., on exceptions to evidence and the charge, as stated in the opinion.

Robert W. Upton, of Concord, for plaintiffs.

Wyman, Starr & Booth and L. E. Wyman, of Manchester, for defendant.

ALLEN, J.

I. In cross-examination the plaintiff Susan was asked if she remembered having a certain question put to her and giving a certain answer to it in her deposition which had been taken. Objection was made on the ground that she should first be asked if it was her deposition, having it shown to her, and her attention then called to the part of it upon which she was being examined. The inquiry was allowed, and the plaintiffs excepted.

As stated, only two points of objection were made; one, that the witness should identify the deposition, and the other, that she should not be required to state her memory about its contents until they were shown to her.

As to the first point, the error, if there was any, became cured by the subsequent testimony of the witness that the deposition bore her signature and was hers. In the discussion between court and counsel no claim was made that it should first be put in evidence as an exhibit before its use, and any requirement to that effect was therefore waived. The deposition might be used as though it had been formally received in evidence. Having been once admitted as an exhibit, a deposition becomes evidence as to all its contents so far as they are competent. It follows that the only question the exception now raises is if a witness must be shown a question and answer in his deposition before being called upon to say what his memory is about them.

In such an inquiry the contents of the deposition are not primarily sought to be shown. The deposition itself, proof of which as an exhibit was here waived, is the evidence of them. The inquiry tests the memory of the witness. If incidentally or in addition it is sought to contradict the witness by his statements in the deposition, it may be insisted upon that they be read. But this is a different matter from the witness' right to read the deposition before stating his recollection about its contents. When writings are used to test or refresh recollection, they are not required to be made exhibits before their use for the purpose. It is only when the witness fails to recollect after reading them that they may be received in evidence, and then only if there is testimony of the truth of their statements. Pinkham v. Benton, 62 N. H. 687, 690, and cases cited. If the writings are not needed to help recollection, there is no occasion even to show them to the witness.

If the purpose of the use of the deposition was to contradict the witness' testimony, no point was made at the trial of the parol evidence rule. It was not claimed that the contents of the deposition could become evidence only as they were read into the record of the trial. The objection made had to do with the manner in which the witness might be examined with reference to the deposition, and not with the manner of proving the contents of the deposition. The particular question objected to being if the witness remembered testifying in a certain way in the deposition, whether she needed to see it before recalling obviously depended upon her memory, and her right to see it as an aid to memory was not shown until need of such aid appeared. Whether there was occasion to test the witness' memory in respect to the contents of the deposition is not within the present inquiry, since no issue on the point was made.

The exception is overruled.

II. On the issue of contributory negligence, the plaintiffs excepted to the instruction that the burden of proof was on them to show their due care. The instruction enforced the rule prevailing in Vermont where the cause of action accrued. It is claimed that the local rule governs. By the local statute (P. L. c. 328, § 13), in actions for injury to person or personalty, "contributory negligence * * * shall be a defense, and the burden of proving the same shall be upon the defendant."

Argument is made that the statute prescribes an unvarying rule of procedure without distinction between actions arising locally and elsewhere. The statute is not to receive such a rigid construction. In Murphy v. Railroad, 77 N. H. 573, 94 A. 967, it was held inapplicable to actions pending at its passage. And no reason occurs why it is not to be held subject to the common law of comity. No policy against the enforcement of comity is expressed or appears. When no domestic interest contravenes, foreign law will be invoked to govern foreign transactions, regardless of local statutes as well as of local common law. Examples of this extent of comity's prevalence are found in Corning v. Abbott, 54 N. H. 469, and Cleveland Machine Works v. Lang, 67 N. H. 348, 31 A. 20, 68 Am. St. Rep. 675.

In further argument it is asserted that the statute is one of remedial law, and that, as comity does not go so far as to permit the entry of foreign law in respect to procedural matters, the local law controls. The issue is drawn how far foreign law will be adopted under comity in respect to proof of contributory negligence.

The general principle that remedial rights are determined by local law is too well established to need discussion. Enforcement of foreign law by giving the same and full remedy available in the foreign jurisdiction is not undertaken. But, when the remedial law of the foreign jurisdiction is so associated and incorporated with its substantive law as to be necessary in order to maintain and validate it, a question of difficulty is presented. If the local remedy results in destroying or altering the foreign cause of action, the ends of comity are not only defeated, but rights are given or liabilities imposed in respect to a foreign transaction affecting its legal character. One way to avoid such a result is to take no jurisdiction, as was done in Crippen v. Laighton, 69 N. H. 540. 44 A. 538, 46 L. R. A. 467, 76 Am. St. Rep. 192. The other way is to make an exception to the rule applying the local law when the foreign remedy is so inseparable from the cause of action that it must be enforced to preserve the integrity and character of the cause and when such remedy is practically available. The vindication of substantive rights should not mean their loss or alteration, and, when no local policy is adversely affected, strict adherence to a rule which becomes arbitrary and works injustice in a given case may well be dispensed with.

Authority on the point is scanty, and its weight is possibly against the proposition. But it would seem that comity may properly recognize it when the situation in a particular case warrants. The "courtesy" of comity should not become discourtesy. If the door is to be opened, the visitor's credentials should be respected. It is not intended to declare any rule going beyond the demands of the particular situation here presented. The policy to apply local remedial law is deeply settled and strongly built. Exceptions to its control must be infrequent and determinable upon their own special features.

Inquiry becomes directed toward the relation between the Vermont law of actionable negligence and its rule placing the burden of proof on the plaintiff to establish his due care.

In pleading, it seems uncertain if the declaration must set forth the plaintiff's care. In Brothers' Adm'r v. Rutland R Co., 71 Vt. 48, 42 A. 980, it was apparently held there was no necessity for it, while in the later case of Mobus v. Waitsfleld, 75 Vt. 122, 53 A. 775, it was held sufficient if the care was impliedly averred. But the former case is no authority that the care is not an essential element of the action. As the opinion in the case states: "The burden is upon the plaintiff to show that the defendant's negligence was the sole operative cause of the injury, which is equivalent to saying that no want of due care on the part of the intestate helped to cause the accident."

Other Vermont cases show that contributory negligence is not a defense barring recovery, but its absence is as vital a part of the cause of action as the defendant's fault.

In Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67, the court cites with approval what is said to be the first authoritative declaration of the contributory negligence rule as enunciated in Butterfield v. Forrester, 11 East, 60, in the following statement: "One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." And in the opinion in the Robinson Case it is said: "In order to sustain the action on the case for negligence * * * it must appear, that the injury did not occur from any want of ordinary care on the part of the plaintiff. * * *"

In Trow v. Vermont Cent. R. Co., 24 Vt. 487, 494, 58 Am. Dee. 191, the rule is expressed in these terms: "When there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained."

In Willard v. Pinard, 44 Vt. 34, 39, 40, the following language is used: "The [trial] court seems...