Brown v. Cathay Island, Inc., 83-098

• Decision Date: 02 July 1984
• Docket Number: No. 83-098,83-098
• Citation: 125 N.H. 112,480 A.2d 43
• Parties: Kenneth M. BROWN, Administrator of the Estate of Sandra J. Cutler v. CATHAY ISLAND, INC.
• Court: New Hampshire Supreme Court

Page 43

480 A.2d 43

125 N.H. 112

Kenneth M. BROWN, Administrator of the Estate of Sandra J. Cutler v. CATHAY ISLAND, INC.

No. 83-098.

Supreme Court of New Hampshire.

July 2, 1984.

Kahn, Brown, Bruno & Durmer, Nashua (Kenneth M. Brown, Nashua, on the brief and orally), for plaintiff.

Hamblett & Kerrigan P.A., Nashua (Joseph M. Kerrigan, Nashua, on the brief and orally), for defendant.

PER CURIAM.

In this appeal, we are asked to determine whether the Trial Court (Wyman, J.) erred in refusing to allow the plaintiff in this wrongful death action to introduce evidence that the defendant had its liquor license suspended by the State Liquor Commission (SLC) for violating RSA 175:6 (Supp.1983). We also must determine whether the court erred in prohibiting an inspector for the SLC from testifying as to the opinions he formed as a result of his investigation of the events preceding the decedent's death.

Although we have no record of the facts before us, the parties agree to the following in their briefs: On August 2, 1977, Sandra J. Cutler was killed in a motor vehicle accident after leaving the premises of Cathay Island, Inc., in Nashua. The plaintiff, Kenneth M. Brown, as administrator, brought a wrongful death action in superior court alleging that the defendant, Cathay Island, Inc., served alcohol to the decedent when she was intoxicated, in violation of RSA 175:6 (Supp.1983), and that her death resulted from her being served additional liquor, while intoxicated. After a trial, the jury returned a verdict for the defendant in which it specifically stated that the defendant did not violate RSA 175:6 (Supp.1983). The plaintiff's motion to set aside the verdict and for a new trial was denied, and this appeal followed.

The plaintiff first argues that the trial court erred in refusing to admit a letter, dated September 26, 1977, from the SLC to Cathay Island, Inc. notifying Cathay Island, Inc. that the SLC had decided to suspend its liquor license for an indefinite period for serving visibly intoxicated patrons on August 1 and 2, 1977, in violation of RSA 175:6 (Supp.1983). That provision prohibits the sale of any liquor or beverage by a licensee "to a person under the influence of liquor ...." RSA 175:6 (Supp.1983). A violation of RSA 175:6 (Supp.1983) has been held by this court to be evidence of negligence. See Ramsey v. Anctil, 106 N.H. 375, 376, 211 A.2d 900, 901 (1965). Although the record presented to this court does not contain the plaintiff's actual offer of the letter into evidence, an excerpted portion of the trial transcript indicates that the plaintiff did, in fact, attempt to introduce the letter into evidence, but that "[i]t was excluded after some colloquy in chambers."

We begin our analysis by noting that evidence is admissible if it may aid the jury in its search for the truth. State v. Thresher, 122 N.H. 63, 71, 442 A.2d 578, 582 (1982). "The admissibility of evidence is generally within the discretion of the trial court." Id. Our review of whether the trial court abused its discretion in admitting or excluding certain evidence is limited to the record presented; such a determination cannot be made on mere speculation. State v. Staples, 120 N.H. 278, 284, 415 A.2d 320, 323 (1980).

The supreme court rules make the moving party responsible for presenting a record sufficient to allow this court to decide the issue presented on appeal. Supreme Court Rules 13, 15. Thus, in order for this court to meaningfully review the trial court's ruling in the instant case, the plaintiff was required to supply this court with a record sufficiently complete to enable us to determine whether the trial court abused its discretion in excluding the letter from the SLC. The fact that the admissibility of the letter, in the case before us, was determined in chambers does not extinguish the plaintiff's burden of seeing to it that the record contains an adequate showing of an abuse of discretion. State v. Staples, supra at 284, 415 A.2d at 324.

On the incomplete record presented to us, we are able to determine merely that the letter was offered and that it was excluded after some discussion in chambers. We have no record of what was said at the conference in chambers or of the basis for the trial court's exclusion of the evidence. We cannot speculate as to the grounds for the exclusion. See State v. Staples, supra at 284, 415 A.2d at 323. Further, the record presented does not show whether the plaintiff took exception to the court's ruling or apprised the court of the basis for the letter's admissibility. Hence, it is not clear on the face of the record that the plaintiff properly preserved his right to appeal the trial court's ruling. State v. Glidden, 122 N.H. 41, 48, 441 A.2d 728, 732 (1982).

Therefore, given the trial court's discretionary power concerning the admissibility of evidence, we cannot say, based on the incomplete record before us, that the trial court abused its discretion.

The plaintiff next argues that the trial court erred in refusing to permit Howard Maxcy, an inspector for the SLC, to testify as to the opinions he formed as a result of an investigation conducted by him for the SLC. The record indicates that during August and September 1977, Maxcy investigated the circumstances surrounding Sandra Cutler's death to determine whether Cathay Island, Inc. had violated RSA...