Ellsworth v. Watkins

• Decision Date: 23 May 1957
• Citation: 132 A.2d 136,101 N.H. 51
• Parties: Ferrin G. ELLSWORTH and Rock W. David v. Thomas WATKINS, Jr.
• Court: New Hampshire Supreme Court

Page 136

132 A.2d 136

101 N.H. 51

Ferrin G. ELLSWORTH and Rock W. David v. Thomas WATKINS, Jr.

Supreme Court of New Hampshire.

Argued April 2, 1957.

Decided May 23, 1957.

Wyman, Starr, Booth, Wadleigh & Langdell and Carl O. Randall, Jr., Manchester, for plaintiffs.

Sleeper & Mullavey, Exeter, for defendant.

KENISON, Chief Justice.

The record in this case clearly demonstrates that the assault and battery on the plaintiffs by the defendant was sudden, unprovoked and brutal, resulting in serious injuries and substantial damage to the plaintiffs. The only question before us is whether there were errors in the trial which affect the verdicts.

The first exception is evidential. The plaintiff Ellsworth and the witness Pasco were allowed to testify that after they had left David at the inn, they heard a scream and Mrs. David saying, 'Come back. He is going to kill him.' This testimony was not offered 'for the truth of the matter' but 'merely to show the background.' The defendant objected to it as hearsay. Many relevant oral expressions made out of court may be offered for a variety of purposes other than to prove the facts asserted. Emery v. Woodward, 96 N.H. 61, 62, 69 A.2d 865. When this is done, the hearsay rule is not a bar. VI Wig.Ev. (3rd ed.) § 1766. A common example is where an utterance is offered to show the effect on the hearer for the purpose of proving circumstantially the state of mind of the person to whom the statement is made or to show the information he had as bearing on the reasonableness of his subsequent conduct. McCormick, Evidence (1956) § 228, p. 464. 'Whenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned.' VI Wig.Ev. (3rd ed.) § 1789.

Mrs. David's statement, whether true or false, was clearly relevant to show the effect that the statement had on the subsequent conduct of Ellsworth and Pasco in suddenly stopping their car and attempting to rescue David from attack. As a matter of law this testimony was not hearsay; as a matter of common sense and logic it was relevant evidence to show what happened and why Pasco and Ellsworth did what they did. This matter is more fully explored by the editor of the pocket supplements to Wigmore's Treatise on Evidence in a discerning article; Rucker, The Twilight Zone of Hearsay, 9 Vand.L.Rev. 453, 470 et seq. (1956). Accordingly, it is unnecessary to consider whether this evidence would otherwise be admissible under some exception to the hearsay rule, such as the one sometimes described as the ubiquitous and thought-paralyzing phrase 'res gestae.' See Donnelly, The Hearsay Rule and Its Exceptions, 40 Minn.L.Rev. 455 (1956); VI Wig.Ev. (3rd ed.) § 1767, p. 182.

The plaintiffs' counsel argued to the jury that a polio epidemic or 'polio scare' that occurred in the last of July or the first of August had nothing to do with the number of applicants the plaintiff Ellsworth was able to obtain for his boys' camp at the beginning of the summer. Inasmuch as the evidence relating to the 'polio scare' was introduced into the case by the defendant, it was proper for the plaintiffs' counsel to comment on it to show that it had nothing to do with the damages that Ellsworth suffered because he was unable to personally solicit campers at the geginning of the camp season. McLaughlin v. Union-Leader Corp., 99 N.H. 492, 116 A.2d 489.

The defendant requested and the Court refused to give the following instruction to the jury: 'If you find that Mr. David, knowing that Thomas Watkins, Jr. had been drinking to some extent upon his arrival at Mount Whittier Lodge, mixed and sold him liquor which caused the defendant to become drunk and out of his mind and that this act upon the part of Mr. David was the cause of Mr. David's injury, you would be entitled to use such findings of fact in mitigation or reduction of the damage done to Mr. David.' This instruction sought to raise the question whether provocation or misconduct may be shown in mitigation of actual or compensatory damages. Cf. Cross v. Grant, 62 N.H. 675. On the record in this case the instruction was properly refused since there was no evidence that David knew or should have known that the defendant had consumed...