Pub. Serv. Co. Of N.H. v. Chancey.

• Decision Date: 04 March 1947
• Docket Number: No. 3600.,3600.
• Citation: 51 A.2d 845
• Parties: PUBLIC SERVICE CO. OF NEW HAMPSHIRE v. CHANCEY.
• Court: New Hampshire Supreme Court

51 A.2d 845

PUBLIC SERVICE CO. OF NEW HAMPSHIRE

v.CHANCEY.

No. 3600.

Supreme Court of New Hampshire.

March 4, 1947.

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

Negligence action by Public Service Company of New Hampshire against Frederick Chancey to recover for damage to plaintiff's bus in collision with defendant's automobile. Verdict for defendant and case transferred from trial term on plaintiff's exception to argument of defendant's counsel.

New trial.

Case, for negligence to recover for damages to the plaintiff's bus resulting from a collision with the defendant's automobile in Goffstown at about 11:30 P. M. on March 13, 1943. Trial by jury. Verdict for the defendant.

The bus operator was making his last trip of the day, from Goffstown to Manchester when he met the defendant proceeding in the opposite direction. The collision occurred as the former turned the bus to his left side of the highway to avoid collision with the defendant's automobile. There was evidence to warrant a finding of negligence on the part of both operators. The defendant claimed to have been blinded by the lights of the bus. He admitted having had one glass of beer before he left Manchester. The plaintiff's evidence tended to prove that he was under the influence of intoxicating liquor. One of the plaintiff's witnesses was a state trooper who testified that he smelled the odor of liquor while interviewing the defendant at the hospital after the accident.

Following the accident, the trooper brought a complaint against the defendant charging him with operating at an unreasonable speed, and upon his plea of nolo he was sentenced to pay a fine. No other criminal proceedings were instituted. No evidence of these facts was received at the trial.

In his argument to the jury, counsel for the defendant undertook to answer the charge that the defendant was intoxicated by saying: ‘There are courts in Goffstown. There are Superior Courts in the County of Hillsborough. The records of such courts are perfectly admissible. There was a state trooper there. If this man was under the influence of liquor, he would have invoked the law. If this man had been convicted of that offense, that record would have been brought in here, and you may be sure if there was any record it would have been brought in here. It wasn't brought in here so we can safely conclude there wasn't any such record.’ Counsel for the plaintiff objected, and this colloquy ensued: ‘The Court: Do you want to stand on it? Mr. Devine: Yes, Your Honor. The Court: You are permitted to take your chances. Mr. Wiggin: Exception.’

In the charge to the jury, the Court of his own motion gave the following instruction: ‘Mr. Devine argued there was no record of any conviction of the defendant arising out of this accident introduced in evidence. You are instructed that such lack is not conclusive that the defendant was not to blame in any way or that he was in the exercise of due care. You will still weigh the evidence and arrive at your verdict in accordance with the evidence as you have heard it.’ To these instructions the plaintiff took no exception.

Transferred by Leahy, J., upon the plaintiff's exception to the argument of defendant's counsel.

Warren, Wilson & Wiggin, of Manchester (Roger E. Sundeen, of Manchester, orally), for plaintiff.

Divine & Millimet, of Manchester (Joseph A. Millimet, of Manchester, orally), for defendant.

DUNCAN, Justice.

The argument of defendant's counsel to the jury was based upon the premise that a record of the defendant's conviction upon a charge of operating a motor vehicle while under the influence of intoxicating liquor would have been ‘perfectly admissible’ in evidence. Had such a record existed, the accuracy of this statement of law, would necessarily have depended upon the character of the particular record, and the purpose for which it was offered. Unless the record showed a plea of guilty, under our decisions it would not have been admissible to establish the truth of facts alleged in the complaint. Caverno v. Jones, 61 N.H. 623; State v. LaRose, 71 N.H. 435, 439, 52 A. 943; Collins v. Benson, 81 N.H. 10, 120 A. 724. When admissible, the evidentiary force of the record arises from the admission made by the plea, rather than from the judgment of conviction. State v. LaRose, supra, 70 N.H. at page 438, 52 A. 943. The weight of authority supports the view of the cited cases. Annotations, 130 A.L.R. 690; 152 A.L.R. 253, 280. No circumstances appear in the present case which suggest the admissibility of such a record for some other reason. See, Lafferty v. Houlihan, 81 N.H. 67, 74, 75, 121 A. 92; Kelly v. Simoutis, 90 N.H. 87, 89, 4 A.2d 868.

[2] [3] From the erroneous premise that a record would be ‘perfectly admissible,’ the inference was drawn that there was no such...