Robinson v. Leonard
| Decision Date | 12 October 1926 |
| Citation | 134 A. 706 |
| Parties | ROBINSON v. LEONARD. |
| Court | Vermont Supreme Court |
Exceptions from Rutland County Court; Frank D. Thompson, Judge.
Action by Lee K. Robinson against Roy H. Leonard. Judgment for plaintiff, and defendant brings exceptions. Affirmed.
Statement by Reporter: A companion case, McAndrews v. Leonard, growing out of the same accident, and decided at the same term as the instant case, is reported at 134 A. 710.
Argued bofore WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.
Lawrence, Stafford & Bloomer, of Rutland, for plaintiff.
Webber & Leamy, of Rutland, for defendant.
This is an action of tort, in which the plaintiff seeks to recover damages for personal injuries sustained while riding in an automobile of which the defendant was the driver. The trial below resulted in a verdict and judgment for the plaintiff, and the case is here upon exceptions by the defendant.
The accident took place on Sunday evening, August 3, 1024, at approximately 8:30 o'clock, on the highway between Rutland and Pittsford. At the place of the accident the road was straight for about 1,600 feet, about 22 feet in width, and flat with a very slight crown. Tarvia had been recently applied, to a width of 16 to 18 feet, over which fine gravel or sand had been spread, and allowed to harden. On each side of the road were small piles of gravel, for future use on the road, 4 to 6 inches high and about 12 feet apart, placed close to the line of the tarvia and upon the gravel part of the road. On the east side of the road, which would be the left side going toward Rutland, there was a drainage ditch concealed by long grass. The exact place of the accident was about 900 feet southerly from the place where the straight part of the road commenced.
At the time of the accident there were riding in the automobile, on the front seat, the defendant, who was driving, Mary Franzoni, and Alba Franzoni; on the rear seat, the plaintiff, Attilio Franzoni, who was the owner of the car, and a Miss McAndrews. The presence of these six persons in the car was accounted for as follows: Franzoni was a lieutenant, the defendant a sergeant, the plaintiff a private, in the National Guard regiment then stationed at Camp Governor Proctor, near Fort Ethan Allen. The day before, Franzoni had been sent by his superior officer to Rutland to obtain some needed camp equipment. He had not been able to get it, and had returned to camp, bringing with him his two sisters, the Misses Mary and Alba Franzoni, and Miss McAndrews. On reaching the camp, he was instructed again to return to Rutland for the same purpose, and to take the defendant, Sergeant Leonard, with him. A 12-hour pass, which was a form of order, was given to each. The plaintiff, meeting Franzoni, asked whether there was room for him, and Franzoni said that there was, and he might ride. Robinson obtained permission to be absent on a 24-hour pass. The party left camp between 5 and 6 in the afternoon.
Shortly before reaching the scene of the accident, the defendant attempted to pass a car ahead, but failed to do so, and dropped back. He made a second attempt, but before he caught up with the leading car the wheels of the automobile he was driving encountered something in the road, by reason of which it was pulled to the left, and into the concealed ditch, in which it proceeded for a short distance until it collided with a telephone pole, and the injuries for which recovery is sought were sustained.
The negligence charged in the declaration is traveling at a high rate of speed and swerving out of the road, by reason of which the defendant lost control of the car.
Subject to defendant's objection and exception, the plaintiff was permitted to testify to a conversation with the defendant, while both were in the Rutland hospital, after the accident, in which the defendant said, in substance, that he could not imagine how such a thing could happen, unless he lost control, or unless he might have been going too fast; that the brakes were not just right to his mind; that he could not stop the car after he had got into the ditch; and that he thought he had plenty of room, but must have misjudged his distance. The objection was that the evidence was incompetent, irrelevant, and immaterial, and while it might be admissible if the defendant had taken the stand and testified differently, it was not admissible as evidence tending to show how the accident happened.
There was no error in receiving the evidence over this objection. A witness, not a party, may be impeached by giving in evidence statements made by such witness, elsewhere than in court, which are inconsistent with this testimony, the foundation of such impeachment having first been laid by calling the witness' attention to the claimed statement and questioning him about it. Such statements are impeaching evidence only, and, where the witness is not a party, are not evidence to prove the fact to be as stated. Law v. Fairfield, 46 Vt. 425; In re Claflin's Will, 75 Vt. 19, 52 A. 1053, 58 L. R. A. 261.
In the case of a party, however, no foundation need be laid. The statements made by such a one are evidence of the fact. Mr. Wigmore says (Wig. Ev. [2d Ed.] par. 1051):
"The rule requiring that the witness must have been warned when on the stand, and asked whether he had made the statement about to be offered as a self-contradiction has always been understood not to be applicable to the use of a party's admission; i. e., they may be offered without a prior warning to the party."
See, also, Coolidge v. Ayers, 77 Vt. 448, 453, 61 A. 40.
It is now urged that the effect of the testimony is not to state how the accident actually happened, but it was merely conjectural as to how it might have happened; it stated and admitted no fact; at most it was a mere conjecture or an opinion. No exception upon these grounds was taken at the time of the admission of the evidence. It was subsequently submitted by the court, in the charge, as tending to show negligence on the part of the defendant, to which instruction the defendant excepted. The exception was on the ground that the statements claimed to have been made by the defendant at the hospital were not anything that could be considered by the jury as evidence as to how the accident occurred. No claim was made that the statements were incompetent evidence because they were expressions of opinion and not statements of facts. Without deciding this point we hold that the exception taken to the charge did not with sufficient clearness point out to the court the defect now claimed to exist, and so is not for consideration here.
Charles E. Novak, an attorney of this court, was called as a witness by the defendant. He testified in substance that he took part in an investigation of the accident conducted by the military authorities at which the plaintiff gave testimony; that he took notes of such testimony and observed the plaintiff's manner of testifying; that the plaintiff stated that the defendant drove the car carefully, and answered the questions put to him intelligently. On cross-examination the witness was asked: "You are an attorney, are you not, acting attorney for the London Guaranty & Accident Company, Limited, that is covering this car that was being operated at the time the accident occurred?" Objection was made to the question, as being incompetent, irrelevant and immaterial, and it was received subject to exception by defendant. The witness answered (the question having been repeated to him): "Well; not in this action."
The question was proper, as tending to elicit the interest of the witness in the subject-matter, by showing his relation to the insurance company interested in the accident and subsequent litigation. McAndrews v. Leonard (Vt.) 134 A. 710, and cases therein cited. The fact that the answer of the witness was such as to show no connection with the case on trial does not affect the correctness of the ruling upon the admissibility of the question.
Further cross-examination of Mr. Novak was directed to his general employment by the insurance company in other cases than the one at bar, but without objection on the part of the defendant, save in one instance, when the question was waived. No exception having been taken to the examination, after that one disposed of above, there is nothing here for review.
Leonard F. Wing, also an attorney, was called by the defendant. He testified that he was a Major in the 172d Infantry, and was president of the military board of inquiry before which the investigation before alluded to took place. He testified further to statements made by the plaintiff as a witness before the board, and to the latter's manner and appearance while testifying, to the same effect as Mr. Novak had done. On cross-examination he was asked whether at that time he or the law firm of which he was a member were acting as attorneys for the insurance company carrying liability...
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