Barton v. Plaisted

Decision Date24 September 1969
Docket NumberNo. 5721,5721
Citation109 N.H. 428,38 A.L.R.3d 799,256 A.2d 642
Parties, 38 A.L.R.3d 799 Lora B. BARTON, Adm'x of the Estate of Ralph R. Barton v. Fred K. PLAISTED, Jr. Roland J. HARDY, Adm'r of the Estate of Margaret E. Hardy v. Fred K. PLAISTED, Jr. James G. HILTZ, Adm'r of the Estate of Susan A. Hiltz v. Fred K. PLAISTED, Jr. Howard C. BARTON, Adm'r of the Estate of Mildred Leona Barton v. Fred K. PLAISTED, Jr. Patricia JACKMAN, Extr'x of the Estate of S. Philip Jackman v. Fred K. PLAISTED, Jr. Phyllis TAYLOR, Adm'x of the Estate of Evelyn P. Jackman v. Fred K. PLAISTED, Jr. Phyllis TAYLOR, Adm'x of the Estate of Evelyn P. Jackman v. Robert F. ZAPORA.
CourtNew Hampshire Supreme Court

McLane, Carleton, Graf, Greene & Brown, Manchester, and William E. Nolin, Claremont, for Patricia Jackman, Extr'x and Phyllis Taylor, Adm'x; Shulins & Duncan, Newport, for Barton, Adm'r and Hiltz, Adm'r; Leahy & Denault, Claremont, for Hardy, Adm'r; John C. Fairbanks, Newport, for Barton, Adm'x; Stanley M. Brown, Manchester, orally, for all plaintiffs.

Wiggin, Nourie, Sundeen, Nassikas & Pingree and Dort S. Bigg, Jr., Manchester, for defendants.

DUNCAN, Justice.

Six of these actions were brought to recover for the wrongful deaths of the plaintiff's intestates in a collision which occurred at about 6:30 A.M. on November 13, 1961 at Croydon. A seventh action seeks recovery for property damage suffered by the plaintiff Patricia Jackman's testator. Trial was commenced on September 30, 1963, by jury, with a view. Defendants' verdicts were returned in all cases on October 17, 1963. The Presiding Justice (Keller, J.), thereafter transferred to this court questions of law presented by exceptions taken by the plaintiffs in the course of the trial, and to the denial of their motions to set the verdicts aside.

Following transfer, however, the plaintiffs sought by motion filed in this court to establish procedures in this court to obtain evidence in support of their exceptions. This motion was denied without prejudice on December 30, 1964. Barton v. Plaisted, 106 N.H. 117, 205 A.2d 854. Early in 1965 the plaintiffs' motion to remand the cases to the Superior Court was granted. In the Superior Court plaintiffs then moved for new trials on the basis of newly discovered evidence. Certain other motions later filed by the plaintiffs were denied by the Presiding Justice. In August 1966, supplementary examination of two expert witnesses who had testified at the trail was conducted before the Superior Court. The Court made findings and rulings, and denied the motions for new trial, subject to the plaintiffs' exceptions. All question of law presented by the exceptions taken at the trial, and at the subsequent proceedings were then reserved and transferred by the Presiding Justice.

The collision which resulted in the instantaneous death of five occupants of a 1960 Chevrolet sedan operated by Mrs. Evelyn P. Jackman occurred as the southbound vehicle rounded a twelve degree curve to the left and encountered a 1958 Mack dump truck operated by the defendant Plaisted, travelling in the opposite direction. The weather was foggy and drizzly. The travelled way, which was divided into two lanes by a painted center line flanked by two yellow no-passing lines, average twenty-six feet in width including the paved shoulders.

The left front of the Chevrolet was in collision with the left rear dual wheels of the truck. There was no contact between the Chevrolet and any part of the truck forward of its rear dual wheels. It was not disputed that when the impact occurred the vehicles were on opposing courses forming an angle of approximately 20 degrees.

The plaintiffs sought to establish that on impact the truck was travelling on a twenty degree angle to the center of the road with its left rear projecting well into the southbound lane. The defendants' contention was that the Chevrolet was travelling at an excessive speed, and swerved or skidded into the truck as it proceeded wholly within the northbound lane.

Since the only eye-witness was the truck driver, the defendant Plaisted, both plaintiffs and defendants relied in part upon expert testimony in an attempt to reconstruct the collision, with the aid of photographs and measurements of the physical surroundings.

A major issue presented in this court relates to the testimony of two expert witnesses, Andrew, J. White and James W. MacDonald, called by the defendants. The plaintiffs' motion for new trial was grounded upon newly discovered evidence allegedly indicating that the testimony of these witnesses was false and fraudulent, and therefore unworthy of belief. At about the same time a similar issue regarding testimony of the witness White was being raised in another case. Cormier v. Stevens, 107 N.H. 66, 67, 217 A.2d 186.

Following the hearing of August 1966 in the case at bar, the Trial Court found that White had intentionally falsified certain testimony concerning his background, experience, and method of operation; and that both he and MacDonald had testified falsely concerning the width of the shoulder of the northbound lane, after having discovered that testimony concerning the measurements which they had previously given at the trial was incorrect.

With respect to the testimony on shoulder width, the Court specifically found and ruled in part as follows: '(White's) testimony that the shoulder to the guard rail was three feet was not reasonably accurate; this shoulder would, according to their method of measuring, include both the bituminous and gravel shoulders. * * * In fact the shoulder opposite the southernmost guard rail post was about six feet wide. * * * When later that morning the testified that the shoulder width in question was three feet, his testimony was intentionally false. The above finding that White gave intentionally false testimony relative to the shoulder width is based on newly discovered evidence. It is also found from newly discovered evidence that White intentionally testified falsely to the effect that the reason he approximated the rest position of the Chevrolet from photographic evidence was because no measurements were given to him. * * * It is found from the newly discovered evidence that MacDonald gave intentionally false testimony when he testified that, at the * * * point of impact, the guard rail was three feet from the travelled part of the highway.'

Having made these and other findings and rulings, the Trial Court properly ruled that 'whether or not the verdicts should be set aside or the cases declared mistried, and new trials granted, because of White's and MacDonald's intentionally false testimony, or because of the newly discovered evidence, or other related reason, depends on whether or not justice was done, and whether or not a new trial would be equitable.' RSA 526:1.

The width of the northbound shoulder was significant because of testimony by the witness White that the northbound lane was substantially narrower than the southbound lane. This was in conflict with the plaintiffs' evidence which showed them to be approximately equal in width. White testified that because of the narrow lane the truck could not have been travelling at the time of impact at an angle of twenty degrees to the center line without having collided with the guard rail. Since it did not, he concluded that the truck could not have been crossing from the south to the northbound lane when the collision occurred.

Having found that the testimony given by White and MacDonald was intentionally false, the Trial Court proceeded to make additional findings bearing upon the issues, including findings that 'the evidence does not establish that the false testimony * * * was a cause of the verdicts' or 'that there would probably be a different result on a new trial.' The Court then ruled that 'it has not been proven that justice has not been done, nor that a new trial would be equitable,' and denied the plaintiffs' motion.

We agree that the Trial Court most properly characterized the conduct of these witnesses as 'reprehensible.' The exposure by the Court's findings of their intentionally false testimony in these cases may forecast an end to their usefulness as professional witnesses. However their misconduct in itself is not decisive of the plaintiffs' rights.

The principles which come into play in the disposition of a motion for new trial upon the ground of newly discovered evidence are well defined by our decided cases. Rautenburg v. Munnis, 109 N.H. 25, 26, 241 A.2d 375 and cases cited. A new trial will be granted only if specified conditions are met, which include findings that the parties were not at fault in not discovering the evidence at the former trial and that the newly discovered evidence is such that a different result will probably be reached upon new trial. Id. A single exception to this requirement is recognized in cases where there is newly discovered evidence that a party has given false and dishonest testimony concerning a material issue. In such cases it has been held that the verdict will be set aside 'even if it is not found that a new trial will probably produce a different result.' Rasquin v. Cohen, 92 N.H. 440, 442, 33 A.2d 404. See Hebert v. Boston & M. Railroad, 90 N.H. 324, 8 A.2d 744. Cf. Cormier v. Stevens, 107 N.H. 66, 217 A.2d 186; Tremblay v. Donnelly, 103 N.H. 498, 175 A.2d 391.

The exception obviously will not apply to these cases, unless it is extended to place responsibility for the false testimony of an expert witness upon the party who proffers his testimony. The plaintiffs advance two propositions in support of their argument: (1) that as a matter of law a witness should not be found qualified to give expert testimony in the absence of 'some showing' that he is a 'man of testimonial integrity,' and (2) that under the principle of respondeat superior, a party should be held responsible for...

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  • Peter Salvucci & Sons, Inc. v. State
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    ...State or on any other ground. Ballou v. Ballou, 95 N.H. 105, 58 A.2d 311; Brown v. Teel, 108 N.H. 365, 366, 236 A.2d 699; Barton v. Plaisted, 109 N.H. 428, 256 A.2d 642. We hold that defendant's motions to dismiss made at the end of plaintiff's case and at the close of all the evidence were......
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    ...standard of due care, that is, causal negligence. Frost v. Stevens, 88 N.H. 164, 167, 184 A. 869, 872 (1936); Barton v. Plaisted, 109 N.H. 428, 437, 256 A.2d 642, 648 (1969). See Gorman v. New Eng. Tel. & Tel. Co., 103 N.H. 337, 342, 172 A.2d 372, 375 (1961). In both instances liability is ......
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    ...Ill.Dec. 890, 509 N.E.2d 586. Other jurisdictions have determined that an expert witness is not a party's agent. In Barton v. Plaisted (1969), 109 N.H. 428, 256 A.2d 642, plaintiff moved for a new trial on grounds that two expert witnesses were discovered to have falsely testified. The New ......
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