Christie v. New England Tel. & Tel. Co.

• Decision Date: 05 February 1935
• Parties: CHRISTIE v. NEW ENGLAND TELEPHONE & TELEGRAPH CO. MARTIN v. SAME.
• Court: New Hampshire Supreme Court

177 A. 300

CHRISTIE

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

MARTIN

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

Feb. 5, 1935.

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

Actions of case by Charles B. Christie and by Earle Martin against the New England Telephone & Telegraph Company which resulted in verdicts for plaintiffs. Defendant took exceptions to admission and exclusion of evidence and to argument of plaintiffs' counsel, and the ease was transferred to the Supreme Court.

New trial.

Two actions of ease, to recover for personal injuries and property damage alleged to have resulted from the negligent operation of a motortruck owned by the defendant and driven by George Fontaine, one of its employees. The cases were tried together by jury, with verdicts for the plaintiffs.

The accident occurred at Errol on July 6, 1931. The plaintiff Christie, accompanied by the plaintiff Martin, was driving his Hudson sedan south on the highway leading from Errol to Berlin. In trying to pass Fontaine, who was traveling in the same direction (Pub. Laws, c. 90, § 2), he ran into a tree at the Bide of the road. His evidence tended to prove that he sounded his motor horn and that Fontaine, hearing the signal, turned first to the right and then to the left, crowding the sedan off the highway. The defendant's evidence tended to prove that Fontaine did not hear the signal, if given, and was not aware that Christie desired to pass.

The defendant has waived its exceptions to the denial of motions for nonsuits and directed verdicts, and the only exceptions now relied upon relate to the admission and exclusion of evidence and to the argument of plaintiffs' counsel to the jury. Further facts are stated in the opinion.

Doyle & Doyle and Robert E. Earley, all of Nashua, for plaintiffs.

Demond, Woodworth, Sulloway, Piper & Jones, of Concord (F. C. Demond, of Concord, orally), for defendant.

MARBLE, Justice.

Six men, all employees of the defendant, were riding in the truck. Their foreman testified that it was his duty to investigate all accidents in which the members of his crew were involved and to make a report to the defendant; that he made an investigation of this particular accident immediately, and found that the wheel tracks of the truck were on the right-hand side of the road. A further investigation was made a few days later by a supervising foreman, who took photographs and drew a plan of the road and surrounding territory.

In the course of his argument to the jury, counsel for the plaintiffs said, subject to exception: "In determining which one of these stories is more probably true than the other, remember this: that the New England Telephone Company after this accident had men get out in the highway and * * * pay particular attention as to which side of the road that truck was on at the time of the accident. Why?— that within about ten days after that, as far as the evidence in this case goes, there has never been a demand or any insinuation from my client that he was going to bring suit,—within ten days after the accident the New England Telephone Company saw fit to send * * * the supervisor * * * up to Errol and take pictures of this scene of accident. That in itself, Mr. Foreman and Gentlemen, has a big bearing as to which one of these parties' stories are more probably true than otherwise."

This argument was improper. In effect, counsel asked the jury to find that the investigation of the accident before suit had been brought or a demand made evinced a consciousness of culpability on the defendant's part Such an inference was unwarranted. In the view most favorable to the plaintiffs, the defendant's conduct in undertaking the investigation was merely equivocal. That conduct may have been impelled by the defendant's rule, or it may have been actuated by a desire to establish the plaintiffs' negligence or to prove that the driver of the truck was in the exercise of due care. In no event could it have the "big bearing" claimed.

But, even if the construction the jury were asked to place upon the evidence were "theoretically not plainly improper" (1 Wig. Ev. [2d Ed.] § 283), a rule of policy not unlike that which governs the exclusion of evidence concerning subsequent repairs (Smith v. Company, 83 N. H. 439, 451, 144 A. 57, 783, 61 A. L. R. 1015) should be invoked in support of the defendant's contention. Persons are loath to take precautions which may be used as evidence against them (see Aldrich v. Railroad, 67 N. H. 250, 253, 29 A. 408; 1 Wig. Ev. [2d Ed.] § 283), and to permit an inference of fault to be drawn from an endeavor to discover facts would tend to defeat, rather than to promote, the ascertainment of truth, which is the object of all trials (Taylor v. Thomas, 77 N. H. 410, 411, 92 A. 740; Mason v. Railway, 79 N. H. 300, 305, 109 A. 841).

It is true that an argument urging the jury to draw an inference not warranted by the evidence furnishes no ground for setting aside the verdict, unless the improper argument is expressly or impliedly sanctioned by the court. Tuttle v. Dodge, 80 N. H. 304, 314, 116 A. 627. But the court in the present instance "noted" the defendant's exception and...