Herschensohn v. Weisman

• Decision Date: 06 February 1923
• Docket Number: No. 1860.,1860.
• Citation: 119 A. 705
• Parties: HERSCHENSOHN v. WEISMAN.
• Court: New Hampshire Supreme Court

119 A. 705

HERSCHENSOHN

v. WEISMAN.

No. 1860.

Supreme Court of New Hampshire. Coos.

Feb. 6, 1923.

Transferred from Superior Court, Coos County; Kivel, Judge.

Action on the case for negligence by Wolf Herschensohn against Max Weisman, based on an injury to plaintiff while riding in defendant's automobile. Verdict for plaintiff. Defendant excepted to the refusal to discontinue the case and to the charge, and the case is transferred. Exceptions overruled.

Warren W. James and Sullivan & Daley, all of Berlin, for plaintiff.

George F. Rich and Robert Rich, both of Berlin, for defendant.

PLUMMER, J. The plaintiff's evidence tended to prove that the defendant operated his automobile in which the plaintiff was riding in a careless and dangerous manner and at an excessive rate of speed; that the plaintiff and other passengers in the car remonstrated with him about his reckless driving; that in descending a hill at an excessive rate of speed the defendant lost control of his car, which overturned, and the plaintiff was injured. The defendant denied that he operated the car carelessly or drove at an excessive rate of speed.

During the direct examination of the plaintiff, he was asked if he said anything to the defendant while riding with him about his careless driving. The plaintiff replied that he had the following conversation with him:

"Mr. Weisman, you ought to be a little more careful about it. You may have an accident. You are liable to kill somebody."

The defendant replied: "Don't worry, I carry insurance for that."

Thereupon the defendant requested the court to order a mistrial because the plaintiff's answer had informed the jury that the defendant had liability insurance. The court denied the request, and the defendant excepted.

The court in the charge instructed the jury, in substance, that the conversation between the plaintiff and defendant was admitted as acknowledging liability, and for no other purpose, and that the fact that the defendant carried liability insurance had nothing to do with the case, and that they were not to consider it. The defendant excepted to that part of the charge relating to liability insurance.

Neither of the exceptions of the defendant can be sustained because the statement of the defendant to the plaintiff ("Don't worry, I carry insurance for that") was competent evidence. If it be assumed that generally the plaintiff in an action for negligence may not show the defendant carried liability insurance, a point not now necessary to determine, in this case, the words of the defendant relating thereto, given their usual meaning, demonstrate their competency as evidence. The question under consideration was the negligence of the defendant in operating his automobile. When the plaintiff remonstrated with him and admonished him to be more careful, his reply indicated that he was not concerned about his recklessness because he was protected by liability insurance. His attitude as disclosed by his words imply that he would be likely to exercise a less degree of care in operating his automobile for the reason that an insurance company would be called upon to pay for any damages occasioned to others by his...