Plante v. City of Manchester

• Decision Date: 31 May 1927
• Citation: 138 A. 314
• Parties: PLANTE v. CITY OF MANCHESTER. ROBERGE v. SAME.
• Court: New Hampshire Supreme Court

138 A. 314

PLANTE

v. CITY OF MANCHESTER.

ROBERGE

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

May Term, 1927.

Transferred from Superior Court, Hillsborough County; Matthews, Judge.

Two actions on the case by Joseph A. Plante, administrator of the estate of Arthur Plante, deceased, and by Alfred J. Roberge against the City of Manchester. Verdicts for defendant, after trial by jury, and plaintiffs bring exceptions. Exceptions transferred. Exceptions overruled.

Two actions on the case under the highway statute (Laws 1893, c. 59, § 1; P. L. c. 89, § 1) for damages growing out of an accident alleged to have been caused by a dangerous embankment. Trial by jury. Verdicts for the defendant.

The plaintiff Roberge was a passenger in an automobile driven by the deceased, Arthur Plante, which was wrecked by going over an embankment on one of the defendant's highways November 13, 1924. As a result of this accident, Plante was killed and Roberge was injured.

During the cross-examination of the plaintiff Roberge, the following questions were asked about plaintiff's intestate, Plante:

"Q. Do you know that he was arrested for violating the liquor law?

"Mr. McLane: I don't see any materiality to this examination.

"The Court: I think he may inquire as to Mr. Plante.

"Mr. McLane: I don't see the point of inquiring as to what he knew about Mr. Plante.

"The Court: I think it is competent.

"Mr. McLane: If he is asking for hearsay knowledge, what Mr. Roberge heard about Mr. Plante, I object.

"The Court: I take it the question applies to what Mr. Roberge would know himself. If it tends to bring out hearsay, I won't admit it. A. No, sir.

"Mr. McLane: I may have an exception, your honor?

"Q. Do you know if in July, 1924, he was arrested for violating the liquor law? A. No, sir.

"Q. That he was arrested and given a 30 days' sentence? A. No.

"Mr. McLane: I think the way to prove that is by showing the record of the conviction. Of course, it may not do any harm; but I am not anticipating what this witness may answer. I don't know what he may answer. I object to proving it in that way, if brother Bois is trying to prove it that way. The record is available, if there is a record.

"Mr. Bois: I will get the record for you.

"The Court: The same ruling applies here as before, that Mr. Roberge must only tell what he himself knows.

"Mr. McLane: It doesn't seem to me that, if Mr. Roberge had looked over the police records, it would be competent to prove what he found when he looked it over. The way to prove it, if it is material, is to bring the record up. I can't see that it is material under any consideration.

"The Court: Of course, he might be convicted in court—

"Mr. McLane: I don't think the record of the court is applicable, only as to attack the credibility of a witness. Mr. Plante is dead. I don't see how that is admissible.

"The Court: I think I shall admit it.

"Mr. McLane: Subject to plaintiff's exception."

Subsequently the clerk of the Manchester police court was produced as a witness and asked the following question:

"Have you a record pertaining to Arthur Plante?"

Objection having been made by the plaintiff, this question was withdrawn. The court instructed the jury as follows:

"You are to decide the case upon the evidence, not by guess or conjecture. You are not to consider statements of counsel or insinuations contained in questions of counsel, as evidence, but are to rely wholly on the testimony of the witnesses and what you saw at the view."

The foregoing exceptions were transferred.

McLane & Davis and John P. Carleton, all of Manchester, for plaintiffs.

Thomas J. Bois, City Sol., of Manchester, for defendant.

BRANCH, J. The only grounds of objection suggested by counsel to the questions which were actually put to the witness and answered were (1) that the fact sought to be proved was immaterial and (2) that the answers...