Laird v. Boston & M. R. R.

• Decision Date: 02 May 1922
• Docket Number: No. 1797.,1797.
• Citation: 117 A. 591
• Court: New Hampshire Supreme Court
• Parties: LAIRD v. BOSTON & M. R. R.

117 A. 591

LAIRD

v. BOSTON & M. R. R.

No. 1797.

Supreme Court of New Hampshire. Merrimack.

May 2, 1922.

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

Action by Millege Laird against the Boston & Maine Railroad. Verdict for plaintiff, and case transferred from the superior court on defendant's exceptions to the introduction of testimony. Exceptions overruled.

Case for negligence, being the same action heretofore reported. 80 N. H. 53, 114 Atl. 275, 16 A. L. R. 243. Trial by jury, and verdict for the plaintiff. Subject to exception, the plaintiff was permitted to cross-examine an expert witness called by the defendant as to whether he would modify his opinion if Dr. Wood (an admitted authority) stated differently in his text-book upon the subject. There were also exceptions to the argument of counsel. Transferred from the April term, 1921, of the superior court by Marble, J.

Robert W. Upton and Joseph C. Donovan, both of Concord (Mr. Upton orally), for plaintiff.

Streeter, Demond, Woodworth & Sulloway, of Concord, (William N. Rogers, of Concord, orally) for defendant.

PEASLEE, J. The exception to evidence has been argued upon the theory that the plaintiff used the published opinion of an acknowledged authority as the basis for the cross-examination of the defendant expert witness. The use of standard authorities to discredit such a witness is a matter upon which there is much diversity of opinion. The general practice in this state has been to permit such use upon cross-examination. State v. Woods, 53 N. H. 484; Burnham v. Stillings, 76 N. H. 122, 79 Atl. 987.

The objection to such procedure upon the ground that it violates the hearsay rule and permits the use of opinions which are not subject to cross-examination is unsound, or else it proves too much. If the opinion of one who is an authority cannot be used at all unless the holder of it be sworn and be subject to cross-examination, by what logic can the same inadmissible opinion be used as a basis for the admissible opinion of the expert witness? The opinion of the expert, qualified by study, is admitted as an exception to the hearsay rule. It is known to be founded upon the assertions of others. 1 Wig. Ev. § 687. Whether it shall be admitted or rejected depends upon the witness' familiarity with the hearsay. Unless he is thoroughly versed in that hearsay, he is not qualified to testify. The reasoning of courts excluding inquiries about the authorities, upon the cross-examination of the expert, leads directly to the conclusion that the opinion of the expert should have been excluded. If the cross-examination puts before the jury the unsworn opinion of the authority, the direct testimony of the expert does the same thing, with the added infirmity involved in his recollection of what the authorities say.

The objection to this procedure is unsound for another reason. It appearing that certain printed books are received by the profession as authorities and as truly setting forth the views of certain authors, opinions based thereon are admitted in evidence. When the witness is confronted with the contents of one of these books which denies the views he has expressed, the issue presented is not whether the book states the true opinion of the author, but whether the witness has honestly and intelligently read and applied what is set down in the books. Baldwin v. Gaines, 92 Vt. 61, 102 Atl. 338.

The argument which has prevailed in some jurisdictions is that the result of such crossexamination is to put before the jury, as positive evidence, the unsubstantiated opinions of the authorities referred to. The assertion that the object of counsel is not attained unless this is so (Allen v. Railway 212 Mass. 191, 98 N. E. 618), is not warranted by the situation presented. The books abound in instances of evidence admissible and received for one purpose, but not for another. Before the improper use, or the objectionable motive, can be dealt with there must be proof of their existence. Neither is to be inferred from the mere fact that it might exist. The view that the opinions used upon cross-examination thereby become positive evidence leaves wholly out of consideration the fact that such opinions, being the foundation for the witness' opinion, are used solely to test its value, and assumes that trial courts and juries are either unable or unwilling to deal intelligently and fairly with restricted evidence. Darling v. Westmoreland, 52 N. H. 401, 412, 13 Am. Rep. 55. The inference that such use of the authorities was treated as substantive evidence is not drawn in this state, in the absence of proof.

"It cannot be inferred from the record of the cross-examination of Dr. Beaton that counsel understood he was putting the dispensatory into the case as substantive evidence, or was doing anything except seeking admissions...