Mary Mcandrews v. Roy H. Leonard

• Decision Date: 06 October 1926
• Parties: MARY McANDREWS v. ROY H. LEONARD
• Court: Vermont Supreme Court

134 A. 710

99 Vt. 512

MARY McANDREWS v. ROY H. LEONARD

Supreme Court of Vermont

October 6, 1926

November 1925.

ACTION OF TORT. Plea, general denial. Trial by jury at the March Term, 1925, Rutland County, Thompson, J., presiding. Verdict and judgment for plaintiff. The defendant excepted.

Judgment affirmed.

Webber & Leamy for the defendant.

Jones & Jones for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK and BUTLER, JJ. TAYLOR, J., sat at the hearing of this case, but by reason of his death did not take part in its decision.

OPINION

WATSON

Lee K. Robinson, the plaintiff in the companion case mentioned in the foregoing statement, arising out of the same accident, was called as plaintiff's first witness in her opening case. He testified that after the accident, while he was in the Rutland Hospital, he and the defendant occupied adjoining beds and that they discussed the accident, and that the latter then told the witness "how he thought it might have happened." The witness then being asked what the defendant said about that, objection was made for immateriality, and also, particularly, for that the witness had not said that defendant stated how the accident happened, but only how he thought it might have happened. Subject to exception on the grounds stated, the witness answered: "He said, he was, he couldn't see how it did happen unless he must have been running too fast and misjudged his distance, very sorry that it happened."

Miss Alba Franzoni, another occupant of the car with the plaintiff and in which the latter was riding at the time of the accident in question, being called by the latter as a witness, testified in chief to a conversation had by her and the plaintiff with the defendant in December following and after the plaintiff got out of the hospital. The witness was asked to tell what defendant then said about the accident and, subject to exception on the grounds of incompetency, irrelevancy, immateriality, and for that the question called for a conclusion, not a statement of what happened, she answered: "He said he thought he was to blame."

The plaintiff, testifying in her own behalf, subject to like objection and exception, gave testimony regarding the same conversation related by the last witness as had by them and the defendant, and gave substantially the same answer as to what defendant then said about the accident.

Respecting the foregoing statements of defendant, testified to by Robinson and by Miss Franzoni and the plaintiff, defendant requested the court to charge, and it did charge, that if the jury should find the statements were so made to Robinson, and to Miss Franzoni and the plaintiff, such statements to Robinson were not evidence as to how the accident happened, and could not be considered for that purpose; and that such statement to Miss Franzoni and the plaintiff was not evidence that defendant was to blame for the accident, and could not be so considered.

This charge, given at defendant's request, took from the consideration of the jury all the material evidentiary force those statements ever had, or were likely to have in the minds of the jury. But the charge went to the extent of instructing the jury that the statements were not of fact but only expressions of opinion by defendant as to how in his judgment the accident might have happened, and should be considered only as such in arriving at their verdict. The statements being thus limited by specific instruction to the jury, we cannot believe that the error in admitting them in evidence in the first instance, if it be error, has injuriously affected the rights of the defendant. In this respect, therefore, reversible error does not appear. Supreme Court rule 7.

Leonard F. Wing, an attorney at law of Rutland, called as a witness by defendant, testified in chief to having had several talks with the plaintiff on different occasions at his office after the accident in question; that on one such occasion the questions he asked her and her answers thereto touching the accident were taken down in shorthand and afterwards written out on paper; that after being so written out plaintiff read them over and signed the same in the presence of the witness. The plaintiff testified in her own behalf and, in her cross-examination, was shown the paper just mentioned and asked if the signature at the end of it was her signature. She answered that it was. She also testified that the letters "M. E. M." on each of the first five pages of the paper were her signature of her initials; that she remembered having talked with Mr. Wing several times about the matter, but when asked if she signed a certain statement with the answer in it (called to her attention on the paper) "Yes, we thought he (driver) was going slow, we would never get home we thought," she answered that she did not remember. The paper showed other questions asked her and answers given by her to the effect that the driver did not drive fast, that she did not think Leonard (defendant) was to blame, and the like, but in answers to questions whether she was asked such questions and so answered, her several answers were that she did not remember, that she did not know, and the like; that she did not remember putting her name to the paper. The witness Wing, being cross-examined, was asked for whom he appeared at the time he took the plaintiff's said statement and, subject to exception on the ground that it was incompetent, irrelevant, and immaterial, said that he appeared for Franzoni as far as the litigation was concerned. On being asked by whom he was instructed to see and interview Miss McAndrews (plaintiff), subject to exception on the same ground, the witness answered, "By some official of the London Guarantee & Accident Company, Limited." Being asked if he then had some interest in the accident, subject to a like exception, he answered that he did in the subject-matter of it, as attorney for the London Guarantee & Accident Company, Limited, which was an insurance company in which Franzoni was insured.

The defendant relies upon the exceptions so saved as showing error. But we think the examination showing the relation of the witness to the insurance company was proper. It only went to the extent of finding out his full interest in the subject-matter when taking the statement of the plaintiff and having subsequent interviews with her. Raymond's Admx. v. Rutland Ry. Light & Power Co., 90 Vt. 373, 98 A. 909; Vermont Farm Machine Co. v. Batchelder & Co., 68 Vt. 430, 35 A. 378. But defendant says there was no testimony to show that Wing was attorney for the insurance company at the time of the trial or during the litigation. It was not essential that there should be testimony so showing; for the relation of attorney and client between the witness and the company, respecting the particular subject-matter, being established by proof as of the previous times mentioned, there was a presumption in law that such relation was continuing at the time of the trial, nothing being shown to the contrary. Trask v. Karrick, 87 Vt. 451, 89 A. 472; 1 Greenl. Ev. (14th ed.) § 41. Such presumption has been held to obtain in the relation of attorney and client. Southard v. Nelson, 43 Mo.App. 210.

Similar objections were made by defendant to testimony of the same general character given by the witness Charles E. Novak concerning his employment by the said insurance company, and the question is briefed; but as no exception was saved to the rulings made in that connection, the matter is given no consideration.

It appeared that as a result of the accident there was a depressed fracture of the plaintiff's skull, causing pressure on the brain, by reason of which a surgical operation technically known as trepanning, was necessarily performed, removing a portion of the bone to relieve the brain from pressure. It further appeared that in performing this operation a circular piece of bone, probably half an inch in diameter, was cut out of the top of the skull on the left side, making and leaving a hole through the bone and over the brain of that size. Dr. Ray E. Smith, a physician and surgeon, was called by plaintiff as an expert witness, and testified that he examined the plaintiff on March 23 (about a week before testifying), giving her a general examination and more in particular relative to her skull and her mental condition. He testified to finding cracks in and some through the skull itself, extending somewhere about the point of the trepanning operation; that the cracks were filled in, not with bone which is a hard rather unyielding substance, but with fibrous tissue which is soft and stringy, never becoming bone; that the fibrous tissue filled in the hole and covered it up.

Defendant called as an expert witness Dr. Alberic H. Bellerose, a practicing physician in Rutland, who testified that he and Dr. Hammond had recently (March 29) examined the plaintiff making a general physical examination that would have any special relation to her injury, and also examined the skull; that they first made an examination by their hands of the depression in the skull, and in that examination found that the hole, made by the trepanning, had filled in with something which, in his opinion, was "callus," describing callus as the next thing that forms in fractures, a bony substance that repairs the bone; that he felt there for the purpose of finding out whether there was any pulsation, but found none, which meant to him that there was solid covering over the hole. In cross-examination the witness said that primary callus was soft, and permanent callus was hard, sometimes harder than bone itself; that the callus examined by him on the plaintiff's head, the day named, was hard, and in his opinion had...