Macauley v. Hyde

• Decision Date: 01 May 1945
• Docket Number: 1043
• Citation: 42 A.2d 482,114 Vt. 198
• Parties: MARY A. MACAULEY v. WILLIAM H. HYDE
• Court: Vermont Supreme Court

42 A.2d 482

114 Vt. 198

MARY A. MACAULEY v. WILLIAM H. HYDE

No. 1043

Supreme Court of Vermont

May 1, 1945

February Term, 1945.

Trial Procedure in Automobile Negligence Case.

1. The examination of witnesses under authority of P. L. 1701 must conform to the rules applicable to all examination of witnesses whether direct or cross.

2. The competency of a witness to testify as an expert is a preliminary question for the court, and its decision is final in the absence of error in law.

3. Where a question asked a witness is objected to on the ground of immateriality, if no offer is made as to the expected answer, no exception is available.

4. Collateral matter brought out by a party on cross-examination of a witness cannot be contradicted by him.

5. Under Rule 9 of the Supreme Court judgment will not be reversed for error which does not injuriously affect the appealing party.

6. Where a plaintiff relies upon the statutes of another state they must be so specifically set forth in the pleadings that the court can see that the plaintiff has a right of action thereunder.

7. Instructions to the jury upon matters in issue become the law of the case as to a party who does not except thereto.

8. The contrary not appearing, it will be presumed on review that the trial court exercised its discretion in ruling upon a motion to set aside the verdict as to grounds thereof requiring the exercise of discretion.

9. The Supreme Court will not disturb the discretionary action of the trial court except to correct abuses of discretion.

10. So far as the discretionary grounds of a motion to set aside a verdict depend upon the evidence, it is the duty of the court, in viewing the evidence, to consider it in the aspect most favorable to the verdict.

11. The test as to the correctness of the exercise of judicial discretion is whether the discretion was exercised upon grounds or for reasons clearly untenable, or to an extent clearly unreasonable.

12. A motion to set aside a verdict on the ground that there was no evidence to support it presents a question of law and was correctly overruled if there was any evidence fairly and reasonably tending to justify the verdict.

TORT for negligence in operation of automobile. Trial by jury Rutland County Court, March Term, 1944, Black, J., presiding. Verdict and judgment for the defendant.

Judgment affirmed.

Stafford Abatiell & Stafford for the plaintiff.

Lawrence & O'Brien for the defendant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

BUTTLES

In this tort action the plaintiff seeks to recover for personal injuries alleged to have been received in an automobile accident involving, it is alleged, her husband's car in which she was riding and a trailer truck owned by the defendant. The undisputed evidence showed that on Jan. 6, 1944, at about 8:30 or 9 P.M. while proceeding over the main road from Whitehall, N. Y. to Fair Haven, Vt., known as Route No. 4, the defendant's truck became stalled on a hill because of mechanical trouble. The driver, being unable to start the truck, after a short time put out flares and started towards Fair Haven on foot to get help. He returned with a mechanic soon after 11:30 and in a short time the truck was started and driven to Fair Haven. The plaintiff's evidence tended to show that while the defendant's truck was standing unattended on the highway the Macauley car, approaching from the rear of the truck, came in contact with it resulting in the injuries of which she complains. The defendant's evidence questioned the occurrence of the accident as claimed by the plaintiff. Trial by jury resulted in a verdict for the defendant and the case is here on the plaintiff's exceptions.

The plaintiff has briefed, more or less adequately, 23 exceptions to the exclusion of testimony. It seems unnecessary to consider them all separately. Twelve of these exceptions were taken to the exclusion of questions asked of the defendant while on the stand as the plaintiff's first witness. From these exceptions it is apparent that the plaintiff has misconceived the scope of P. L. 1701 which reads thus:

"A party to a civil action or proceeding at law or in equity may compel an adverse party, or person for whose immediate and adverse benefit such action or proceeding is instituted, prosecuted or defended, to testify as a witness in his behalf, in the same manner and subject to the same rules as other witnesses, but the party so called to testify may be examined by the opposite party under the rules applicable to the cross-examination of witnesses."

It is true that under this statute the right to cross examine extends to any material matter whether covered by the direct examination or not, Merrihew's Admr. v. Goodspeed, 102 Vt. 206, 211, 147 A. 346, 66 A.L.R. 1109; Swerdferger v. Hopkins, 67 Vt. 136, 147, 31 A. 153, but the language of the statute clearly requires conformity to the rules that are applicable to all examination of witnesses whether direct or cross. See Davis v. Dunn, 90 Vt. 253, 256, 98 A. 81, Ann Cas 1918D, 994; Good v. Knox, 64 Vt. 97, 99, 23 A. 520.

It being admitted that the witness was not present at the time his truck became stalled or at the time of the alleged accident the following questions of those above referred to clearly called for answers based on hearsay: "Why was the truck parked there on the highway that night Mr. Hyde?" "Did you learn, Mr. Hyde, that the, that your truck, the one here in question had run out of gas that evening and that was the reason for its being parked there on the roadway?" "This truck that you pointed out to us was involved in an accident on Jan. 4, 1944, wasn't it? " "You say that this is the trailer truck that was in the accident on Jan. 4, 1944, do you?" "On that particular trip was Mr. McDonough driving that unit?" "The man who was driving it was one of your regular employees, one of your regular drivers, is that so?" Each of the other questions in this group, as well as two or three of those objectionable under the hearsay rule, were faulty because each assumed facts that had not then been shown in evidence.

The witness Blanchard, called by the defendant, had testified briefly that he was foreman of the garage repair shop to which the Macauley car was taken following its injury; that he had had 18 years experience in automobile repair work; that he had examined the car to determine what repairs would be required and that he observed some paint marks on the car doors different in color from that of the doors and also noticed a jam about 10 inches long and 11/2 inches deep in the lid of the trunk at the back of the car. He had not described any other damage to the car. In response to inquiries by the plaintiff he testified that during his 18 years experience he had had something to do with repairing perhaps 1000 cars a year and had repaired cars in a condition similar to that of the Macauley car. The plaintiff has attempted to brief in a group exceptions to the exclusion of eight questions asked of this witness on cross examination. The record discloses no exception taken to the exclusion of the first question which is therefore not before us. The other questions were directed to the cause of various items of damage which the car had suffered and to the length of time that had elapsed, in the opinion of the witness, since such damages were suffered. The questions were objected to on the ground that they were not cross examination of testimony given on direct and that the witness had not been shown to be qualified as an expert on the matters inquired about. That the questions were not cross examination is obvious. The competency of the witness to testify as an expert on the matters asked about was a preliminary question for the trial court and its decision was conclusive, since the evidence does not indicate that the decision was erroneous or founded on error in law. Capital Garage Co. v. Powell, 97 Vt. 204, 210, 122 A. 423; Watriss v. Trendall, 74 Vt. 54, 57, 52 A. 118.

The plaintiff's husband, called as a witness by the plaintiff, was asked on redirect "why did you apply your brakes lightly? " Objection being made for immateriality and on other grounds the plaintiff made no offer stating what the witness would testify to and there is therefore no available exception. Carpenter v. Willey, 65 Vt. 168, 175, 26 A. 488; State v. Winters, 102 Vt. 36, 61, 145 A. 413.

Dr. Williams, a medical expert called by the defendant, was asked on cross examination "she (the plaintiff) won't be able to do any normal work for some time will she?" Since this question was directed to the amount of damages recoverable and the jury's finding was for the defendant on the main question of liability the exclusion of the question was harmless to the plaintiff. Boynton v. Hunt, 88 Vt. 187, 188, 92 A. 153.

Roy Hanson, a plaintiff's witness, was asked on direct whether a certain truck of the Hyde Transportation Company, driven by Mr. King, checked in at the Vermont Marble Company at 11 A.M. January 7th. Upon objection no offer was then made but a previous similar question had been offered for the purpose of impeaching the previous testimony of King that he did not know who took the truck to Proctor. If we treat the offer as intended to apply to the question that is briefed also, and as so understood by the court, it is sufficient to say that King's knowledge or lack of knowledge of this matter was wholly collateral to the issues in the case and having been brought out on cross examination of King by the plaintiff could not be contradicted by her. State v. Prouty, 94 Vt. 359, 363, 111 A. 559; Gregg v. Willis, 71 Vt. 313, 319, 45 A. 229.

During the examination of the defendant as the...