Gerry v. Neugebauer

• Citation: 136 A. 751
• Parties: GERRY v. NEUGEBAUER.
• Decision Date: 15 March 1927
• Court: Supreme Court of New Hampshire

136 A. 751

GERRY

v. NEUGEBAUER.

Supreme Court of New Hampshire, Merrimack.

March 15, 1927.

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

Case for personal injuries and property damages brought by James W. Gerry against Victor Neugebauer. Verdict for plaintiff. Transferred. Case discharged.

Case for personal injuries and property damages suffered in an automobile collision.

An automobile belonging to one King, the defendant's car, and the plaintiff's automobile, in the order named, were proceeding northerly upon the state highway. The plaintiff's evidence tended to prove that the defendant undertook to pass King when the two automobiles were approaching the top of a hill: that when nearly opposite King's car, and on the westerly side of the highway, the defendant's automobile collided with a fourth car traveling south; that the driver of the latter was deprived by the collision of the control of his car, which veered to the easterly side of the highway, colliding with the plaintiff's automobile, and causing the damages complained of. The defendant's evidence on the contrary tended to show that he was driving upon the easterly side of the highway, and that the collision was due solely to the negligence of the operator of the south-bound car.

King, called as a witness by the defendant, testified to facts supporting the defendant's, and contradicting the plaintiff's, position. Upon cross-examination, having confirmed his evidence in chief, he was asked the question, "When did you first talk with anybody connected with this case about it?" to which he replied, "Why in Boston." At this point the examination was interrupted by the defendant's counsel, who, in conference in chambers, objected to questions as to whom the witness had talked with, on the ground that the answers would be likely to disclose the prejudicial fact that the defendant was insured. The objection was overruled, the court stating that, if plaintiff's attorney desired to ask the questions and take his chances on the answers, he could do so; whereupon the following further cross-examination was had:

"Q. You said you talked with somebody in Boston? A. A man who represented himself to be from the insurance company asked me what I saw of the accident, and I told him. Q. How long was that after the accident? A. I should say it was the following week, if I remember correctly. Q. Did you give him a signed statement? A. I did. Q. Is that the first attempt you made to charge your memory with the accident? A. No, sir; I charged my memory with it that night at the scene of the accident."

The defendant thereupon moved for a mistrial. This motion was denied, subject to the defendant's exception. No request was made to strike out the prejudicial fact or to limit the use of the evidence; nor was any reference made to it in the charge.

There was a verdict for the plaintiff, which the defendant moved to set aside on the ground that the jury was so influenced by bias and partisanship and by the prejudicial effect of the testimony relating to insurance that it fell into a plain mistake. The court declined to find that the testimony relating to insurance affected the verdict, and denied the motion, but granted the defendant's exception to such denial so far as the record raised any question of law.

Further facts appear in the opinion.

John M. Stark and Robert W. Upton, both of Concord, for plaintiff.

Demond, Woodworth, Sulloway & Rogers, and Jonathan Piper, all of Concord, for defendant.

SNOW, J. The record does not sustain the plaintiff's contention that the defendant failed to protect his rights. It is true that the defendant was not "aggrieved" (P. L. c. 315, § 8) until the prejudicial matter objected to had been received in evidence. See Beaudette v. Therrien, 81 N. H. 117, 118, 122 A. 796; Small v. Saunders, 81 N. H. 520, 129 A. 270. The better practice called for a renewal of the defendant's objection, a ruling thereon, and formal exception thereto. No particular formula, however, is essential to the saving of an exception to a ruling, so long as it appears from the whole record that the court and counsel must have understood an exception was allowed. Dziedzie v. Newmarket Mfg. Co., 82 N. H.——, 136 A. 261; Byron v. Boston & M. R. R. 82 N. H.——, 136 A. 250; Maravas v. American Equitable Assurance Corporation, 82 N. H. ——, 136 A. 364. The anticipatory objection that the fact of insurance would be disclosed by the course the examination was taking had been overruled with the pertinent statement that the plaintiff would "take his chances on the answers." The finality of the court's words indicate something more than a purpose to rule later if required. It seems more probable than otherwise that the court intended, and that the parties understood, that the rights of the defendant, contingent upon injection of the fact of insurance, were saved to him.

Proof that the witness King, had talked with a representative of an insurance company the week following the accident, and had given him a signed statement, gave the jury to understand that the party calling him was insured. This imputation is not negatived by the absence of evidence as to whether or not the other car owners involved in the accident...