Hutchinson v. Knowles, 7146.
| Decision Date | 05 May 1936 |
| Docket Number | No. 7146.,7146. |
| Citation | 184 A. 705 |
| Parties | HUTCHINSON v. KNOWLES. |
| Court | Vermont Supreme Court |
[Copyrighted material omitted.]
Exceptions from Orange County Court; Walter H. Cleary, Judge.
Action by Fred Hutchinson against Herbert Knowles. Judgment for the defendant, and the plaintiff brings exceptions.
Affirmed.
Argued before SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Superior Judge.
Finn & Monti, of Barre, for plaintiff.
Theriault & Hunt, of Montpelier, for defendant.
The action is tort for personal injuries received in an automobile accident, and the case is here on plaintiff's exceptions. At the time of the accident, and for some days before, the parties, together with several others, were employed on a highway construction job hauling gravel in autotrucks. At the place where the accident occurred, the highway runs north and south, descends to the south and is very winding. Defendant was going north with a load of gravel; plaintiff was traveling in the opposite direction with an empty truck. Plaintiff testified that when he first saw defendant they were 65 to 75 feet apart; that his truck was then traveling 15 to 20 miles an hour and that he "was braking it a little bit for the corner"; that on account of the curve in the highway he did not discover that defendant's truck was on his (plaintiff's) side of the highway until he got within 45 to 50 feet of it, when he applied his brakes as hard as he could but was unable to stop before reaching it; that he turned as far to the right as possible, but that the hub cap of his left front wheel hit defendant's left rear wheel and disabled his car so that he could not control it and it went over the bank on his left about 60 feet south of the collision.
Plaintiff offered to show by his own testimony that in October following the accident defendant said to him: "You won't have to worry about your injuries, because my insurance company said they would settle for them," as tending to show an implied, if not an actual, admission of liability. The evidence was excluded both as matter of law and matter of discretion, and an adequate exception was saved to each ruling. In the circumstances, the exception to the exclusion of the evidence as a matter of law must be considered. While the fact that an insurance company is defending a case must not be needlessly brought to the attention of the jury, Ryan v. Barrett, 105 Vt. 21, 162 A. 793, and cases cited, if the offered evidence tends to show a direct or an implied admission by defendant of liability, it is admissible although it discloses the fact that he was insured. In other words, where the answer disclosing insurance is inextricably coupled with an acknowledgment of responsibility, the answer is admissible. Plaintiff cites Turgeon v. Baker, 105 Vt. 61, 163 A. 588; Thayer v. Glynn, 93 Vt. 257, 106 a. 834, Wiseman v. Rome, 250 Mass. 505, 146 N.E. 28, and Brown v. Wood, 201 N.C. 309, 160 S.E. 281, which hold that an independent and voluntary offer to pay, by one who has caused injury, constitutes an implied admission of liability. We agree. He cites another line of cases where a statement made by defendant to the insurance company was admitted for the purpose of contradicting his evidence given in court. See Hill v. Jackson (Mo.App.) 272 S.W. 105; Rich v. Campbell, 164 Wash. 393, 2 P. (2d) 886; Sibley v. Nason, 196 Mass. 125, 81 N. E. 887, 12 L.R.A.(N.S.) 1173, 124 Am.St. Rep. 520, 12 Ann.Cas. 938. These cases are not helpful in solving the question before us. Attention is called to the following New Hampshire cases: McCurdy v. Flibotte, 83 N.H. 143, 139 A. 367, 368, where without deciding whether the statement "I shouldn't worry; I have insurance" was competent in the first instance, it was held that it became so in the progress of the trial by reason of defendant's testimony; Herschensohn v. Weisman, 80 N.H. 557, 119 A. 705, 28 A.L.R. 514, where a passenger in defendant's car remonstrated with defendant for reckless driving and the latter replied, "Don't worry, I carry insurance for that," it was held that on the question of defendant's negligence this was competent as indicating that he was not concerned about his recklessness because he was protected by insurance; Lemire v. Pilawski, 77 N.H. 116, 88 A. 702, where injury was caused by a runaway horse of defendant's, he stated that the horse was in charge of servants who, contrary to instructions, left it unattended in the street, but that he could do nothing because the horse was insured and he had reported the accident to the office. It was said that the first part of the statement tended to show an admission of liability on the part of defendant, and the last part tended to show why he was defending a lawsuit wherein he admitted liability.
Among other cases that we have examined are: Rowe v. Rennick, 112 Cal.App. 576, 297 P. 603, Potter v. Driver, 97 Cal. App. 311, 275 P. 526, and Maberto v. Wolfe, 106 Cal.App. 202, 289 P. 218, where there appeared in the talk admitted an express promise on the part of defendant to pay or settle; Wulze v. Aquardo (MoApp.) 6 S.W.(2d) 1017, and Symons v. Wooden, 97 Cal.App. 39, 274 P. 987, where defendant assured plaintiff that his damages "will be taken care of" or "will be paid"; Langford v. Kosterlitz, 107 Cal.App. 175, 290 P. 80, where defendant told the insurance company that he thought plaintiff ought to get something; King v. Wilson, 116 Cal.App. 191, 2 P. (2d) 833, 843, where following the reasoning in Herschenshon v. Weisman, supra, it was held that the last four words of the following, "He was sorry it all happened but he had insurance to pay for everything" might be construed as an admission of liability; and Steinman v. Brownfield (Mo.App.) 18 S.W.(2d) 528, where it was held that a statement by defendant that he was insured and thought plaintiff would be properly taken care of might be construed likewise. In each of these cases the admission of liability must have been implied from the defendant's recognition of his fault, evidenced by what he said; while the offered evidence contains nothing to indicate an admission or denial of liability by defendant, but is merely a statement of what the insurer said it would do, and, as such, was purely hearsay. There was no evidence, or claim that the insurer had authority to speak for defendant, consequently what it said could not be tortured into an admission of liability by him. In the circumstances, the evidence was properly excluded.
Soon after the accident plaintiff had a talk with one Link about it and gave him a written statement as to how he claimed it happened and what he and defendant said and did about it immediately thereafter. Plaintiff was a witness in his own behalf. On cross-examination the statement was offered in evidence by defendant and, after being examined by plaintiff's counsel, was admitted without objection and plaintiff testified that except in two or three minor respects, which he pointed out, it was true as far as it went, but did not include all he told Link. On redirect examination plaintiff offered to show all of the talk between Link and himself regarding the accident, and also that Link then told him that he represented defendant's insurance company, that plaintiff would have to sign the statement, and that a copy of it would be given to the state of Vermont, for the purpose of showing all the conversation, and Link's interest and bias in the matter. The offer as made was excluded, but during his redirect examination plaintiff was permitted to show everything included in the offer that he desired to, as far as appears, except what Link said about the insurance company, and a copy of the statement being given to the state. This was all he was entitled to do. The rule contended for by him that when the declarations of a party are given in evidence against him, all that he said at the time that is material to the subject-matter (Turner v. Howard, 91 Vt. 49, 99 A. 236) must be received and weighed is well established (Hendrickson v. International Harvester Co., 100 Vt. 161, 135 A. 702, and cases cited). The plaintiff was given the full benefit of this rule. What Link said about the insurance company, and about giving a copy of the statement to the state had nothing to do with anything contained in plaintiff's statement, which was all that plaintiff had the right to explain and amplify. No tenable ground has been suggested for the admission of what Link said about the insurance company. The case is unlike Robinson v. Leonard, 100 Vt. 1, 134 A. 706, and McAndrews v. Leonard, 99 Vt. 512, 134 A. 710, where evidence that a witness was employed by defendant's insurer was admitted to show the interest, bias, etc., of the witness. Link was not a witness, nor was he in court as far as appeared. Then, too, in the circumstances, this evidence was merely hearsay. Poland v. Dunbar, 130 Me. 447, 157 A. 381. Nor was there error in the exclusion of what Link said about a copy of the statement being given to the state for any purpose for which it was offered.
Plaintiff on redirect examination offered in evidence Link's business card for the purpose of showing his connection with the insurance company, and it was excluded subject to plaintiff's exception. He now calls attention to 28 R.C.L. p. 615, where it is said that a witness may be impeached by showing his bias, sympathy, hostility, or prejudice, and cases cited on the page following. This rule needs no supporting authorities. Link, as has been seen, was not a witness, and for reasons stated this evidence was properly excluded.
Plaintiff offered to show on his redirect examination that other trucks were driven down the hill at the point where the accident occurred as fast, or faster, than he was driving his truck at the time of the accident, and that defendant knew that fact. This was excluded subject to plaintiff's exception. Generally speaking, this class of evidence is...
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