Langan v. Pianowski
| Decision Date | 31 October 1940 |
| Citation | 29 N.E.2d 700,307 Mass. 149 |
| Parties | LEONARD LANGAN v. PETER J. PIANOWSKI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 23, 1940.
Present: FIELD, C.
J., LUMMUS, QUA COX, & RONAN, JJ.
Witness Contradiction. Evidence, Competency. Practice, Civil, Charge to jury.
The admission "purely on the question of credibility of" the plaintiff, of evidence offered by the defendant of previous statements by the plaintiff setting forth facts contrary to those to which he had testified, disclosed no error.
At a trial where the plaintiff had testified that he had no recollection of giving a statement which he admitted signing and which contradicted his testimony on the merits, the judge did not violate Section 81 of G. L.
(Ter. Ed.) c. 231, by instructions in substance that a party or witness who has actually made a statement contradictory to his testimony cannot escape the consequences of the contradiction by a pretense that he does not remember making the statement.
TORT. Writ in the Central District Court of Worcester dated October 30, 1934.
On removal to the Superior Court, the case was tried before T. J. Hammond, J. The statement signed by the plaintiff, referred to in the opinion, was not admitted in evidence.
The case was submitted on briefs. Nunziato Fusaro & R. J. Monahan, for the plaintiff.
J. W. Ceaty, for the defendant.
On November 6, 1933, according to his testimony, the plaintiff rode by invitation of the defendant in an automobile operated by him. As they were on the left side of the road, passing a vehicle at the rate of fifty miles an hour, another automobile came around a curve in the opposite direction on the same side of the road. The defendant turned his automobile sharply to the right. It skidded on the wet pavement, and went off the right side of the road into a pole. The plaintiff was hurt. He alleges that the defendant was grossly negligent. There was evidence that before the accident the plaintiff had protested several times to the defendant against his driving so fast on a slippery road. The testimony of the defendant was that he drove at very moderate speed on the right side of the road, that he passed no other automobile, and that the plaintiff made no objection to his manner of driving. The jury returned a verdict for the defendant, and the case comes here on the plaintiff's exceptions.
An investigator for an insurance company representing the defendant testified that the plaintiff gave him a signed statement of the circumstances of the injury, in which the plaintiff said in substance that the defendant was driving carefully at a rate of twenty or twenty-five miles an hour; that suddenly the automobile skidded and collided with the pole; and that he thought the automobile must have struck something in the road. He made no mention in the statement of passing any automobile or of protesting as to the speed.
The judge, subject to the exception of the plaintiff, admitted, "purely on the question of credibility of this witness," the plaintiff, testimony as to what the plaintiff told the investigator, which was substantially the contents of the signed statement. The plaintiff admitted that the signature on the statement is his, but testified that he had no recollection of giving such a statement; if he did talk to the investigator, he was unable to recall whether he told him the truth.
Where a party is surprised by the testimony of his own witness that he does not remember relevant facts, the party will not ordinarily be allowed to introduce prior statements of the witness concerning those facts, under G. L. (Ter. Ed.) c. 233, Section 23, because the legitimate value of the statements as contradictions of the purported failure to remember would usually be slight, while the danger that the jury would give affirmative testimonial value to the statements would be great. Commonwealth v. Welsh, 4 Gray, 535. Elmer v. Fessenden, 154 Mass. 427 . Commonwealth v. Smith, 163 Mass. 411, 425. Corsick v. Boston Elerated Railway, 218 Mass. 144 . Bloustein v. Shindler, 235 Mass. 440 . Bilodeau v. Fitchburg & Leominster Street Railway, 236 Mass. 526 , 530, 540. Fraser v. Flanders, 248 Mass. 62 , 63, 64, 68. Commonwealth v. Chin Kee, 283 Mass. 248 , 261. Wigmore, Evid. (3d ed.) Section 1043.
But a party has the right to contradict a witness called by his opponent not only by statements categorically opposed to his testimony but also by statements the implications of which "tend in a different direction from what is...
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