Dunklee v. Prior

• Decision Date: 03 January 1922
• Docket Number: No. 1763.,1763.
• Citation: 116 A. 138
• Parties: DUNKLEE v. PRIOR.
• Court: New Hampshire Supreme Court

116 A. 138

DUNKLEE

v. PRIOR.

No. 1763.

Supreme Court of New Hampshire. Hillsborough.

Jan. 3, 1922.

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

Action by John F. Dunklee against Leon Prior. Verdict for defendant, and plaintiff excepts. Exception overruled.

The plaintiff sought to recover damages for injuries which he claimed he sustained by being struck by an automobile carelessly operated by the defendant. The defendant denied that the plaintiff was struck by his automobile, and also introduced evidence tending to show that the plaintiff, if struck, was not injured. Exception was taken by the plaintiff to the exclusion of evidence.

John R. McLane and Ralph W. Davis, both of Manchester, for plaintiff.

George I. Haselton and Emory I. Lapierre, both of Manchester, for defendant.

PLUMMER, J. The defendant called as a witness the physician to whom the plaintiff went upon the day of the accident, who testified that he could not find that the plaintiff had sustained any injury. The plaintiff's attorney, upon cross-examination, in an effort to discredit the witness, inquired of him if he had not made certain statements that were inconsistent with his testimony. The witness denied that he had. Upon being asked if he had signed a statement relating to the case, he replied that he did not know that he had, but admitted his signature upon a written statement shown him. He was asked if the attorney who took the statement did not write down what he told him, and he said: "I suppose so; hope so." There was no other evidence respecting the making and signing of the statement. At the conclusion of the testimony of the witness, the plaintiff offered the statement signed by him to contradict his evidence. It was excluded, and the plaintiff excepted.

The plaintiff contends that, having proved by the witness' admission of his signature that he signed the statement, he was entitled, as a matter oflaw, to introduce it to discredit his evidence. If there had been no controversy relative to the making of the narrative as recorded in the signed statement, or if it had been conclusively established that the witness made it, he would be correct. But the witness denies having made the statements, and his evidence would warrant a finding that he did not. Under such circumstances, two methods of procedure were open to the trial court. He could have admitted the statement with the instructions to the jury that they should determine whether the witness made it if they found that he did, they should give it proper consideration. But if they should conclude that he did not, then they should lay it out of the case. Or, in the exercise of his discretion, he could determine upon the evidence whether the witness made the statement, and admit or exclude it in accordance with his finding. The court pursued the latter course. And as there was testimony to support a finding that the witness did not make the statement, the exception to the exclusion of the evidence cannot be sustained. It was the province of the trial court, if he deemed it advisable, to pass upon the competency of this evidence, and, having done so, his decision based upon sufficient evidence is not revisable. While no case exactly like this has been passed upon by the courts in this state, cases that are analagous in principle have been decided. In Colburn v. Groton, 66 N. H. 151, 28 Atl. 95, 22 L. B. A. 763, evidence of the payment of a claim offered by the plaintiff to prove an admission of liability was excluded. The court in the opinion said:

"The preliminary question of fact for the presiding justice at the trial was, whether the defendant's payment of Mrs. Estes's claim in settlement of her suit was an admission of liability, or a mere purchase of peace. As it does not appear that a decision of that question of intent in favor of the defendants would be against the evidence, the exclusion of the payment is not a cause for a new trial."

The court in Theobald v. Shepard, 75 N. H. 52, 58, 71 Atl. 26, 30, used the following language:

"Nor was it error for the court to find that a certain letter written by the plaintiff to the defendants, offering to make a discount, was intended as an offer of compromise under the circumstances, and to exclude it for that reason."

Bartlett v. Hoyt, 33 N. H. 151, and Field v. Tenney, 47 N. H. 513, are cases in which evidence of a similar character was submitted to the jury under proper instructions.

In Bartlett v. Hoyt it was said that—

"Whether the facts exist as claimed by one party or the other, is a question of fact, which, when presented in the form of the preliminary inquiry, as to the competency of the witness, may be determined by the court, or, in the exercise of their discretion, by the jury."

In Jenness v. Jones, 68 N. H. 475, 44 Atl. 607, the court, after stating that whether a statement was an admission of liability might be submitted to the jury under proper instructions, added:

"But the question of fact upon which, in such case, the competency or otherwise of the evidence depends need not necessarily be submitted to the jury, but may be found by the court in passing upon the competency of the evidence."

It is held in this state that whether a confession in a criminal action is voluntary, and therefore entitled to be admitted as evidence, is a question of fact for the trial court to determine. State v. Squires, 48 N. H. 364, 369; State v. Pike, 49 N. H. 399, 407, 6 Am. Rep. 533. It was said in State v. Squires that—

"Whether the confession of the prisoner was voluntary or not is purely a question of fact; us much so as the question whether a witness offered to testify was interested or not, or whether a witness was qualified to testify as an expert, or whether the loss of a paper has been shown so as to allow the introduction of secondary evidence of its contents. In this and the like cases, the judge who tries the cause must decide, although in some instances he may submit the question of fact to the jury. In either case, whether the decision be by the judge alone, or it be also passed upon by the jury, no exception lies so far as the question is one of fact."

The trial court can determine as a preliminary question of fact whether experiments have been made under such conditions that they may be introduced as evidence. Saucier v. Spinning Mills, 72 N. H. 292, 56 Atl. 545. In a highway damage case "whether the exact place where it is claimed the damage was received is sufficiently designated in the notice is a preliminary question of law and fact to be determined by the court. Like kindred questions, it may, however, be submitted with proper instructions to the jury." Carr v. Ashland, 62 N. H. 665, 668. The finding of a trial court that a child is of sufficient intelligence to testify,...