Underhill v. Baker, 6704

• Decision Date: 29 August 1975
• Docket Number: No. 6704,6704
• Citation: 343 A.2d 643,115 N.H. 469
• Parties: William T. UNDERHILL et al. v. Robert J. BAKER. William J. BAKER v. William T. UNDERHILL et al.
• Court: New Hampshire Supreme Court

Page 643

343 A.2d 643

115 N.H. 469

William T. UNDERHILL et al. v. Robert J. BAKER.

William J. BAKER v. William T. UNDERHILL et al.

No. 6704.

Supreme Court of New Hampshire.

Aug. 29, 1975.

Paul A. Rinden, Concord, and Eleanor Krasnow, Goffstown, for plaintiffs.

Louis P. Faustini, Goffstown, by brief and orally for defendant.

GRIFFITH, Justice.

These actions were brought as a result of an automobile accident that occurred about 3:30 a.m. on September 27, 1969, on Route 127 in Salisbury, New Hampshire. A vehicle operated by William Underhill, with his wife Heiliene as a passenger, collided with a parked car operated by defendant Robert J. Baker. William and Heiliene Underhill brought suit against Robert Baker for personal injuries with additional claims for property damage and loss of consortium in the case of William Underhill. William J. Baker, the father of defendant Robert J. Baker, and owner of the parked car, brought an action against William T. Underhill for property damage. Trial by jury resulted in verdicts for the defendant in the Underhill's actions and for William Baker in the property damage case against William Underhill. Plaintiffs' motion to set aside the verdicts was denied subject to exception. Plaintiffs' exceptions were reserved and transferred by the Trial Court (Keller, C.J.)

At 3:30 a.m. on September 27, 1969, defendant Robert Baker was seated in the Baker car with Kathy Ingram parked in front of her home on Route 127. Plaintiff William Underhill and his wife Heiliene were returning home from a social evening spent at the home of a friend. The right front fender of the Underhill car struck the right front fender of the Baker car. The case was submitted to the jury under the comparative negligence statute, RSA 507:7-a (Supp.1973).

Plaintiffs claimed that the defendant's car was parked on the pavement with its lights out in violation of RSA 262-A:70 (1966) and RSA 263:51 (1966). Defendant claimed that plaintiff William Underhill was under the influence of intoxicating liquor at the time of the accident and negligently failed to keep a proper lookout and negligently failed to keep his car under control. Defendant claimed that Heiliene Underhill was negligent in riding with William Underhill when he was under the influence of intoxicating liquor.

Plaintiffs in their brief and oral argument claim that the trial court erred in admitting evidence of the drinking habits of William Underhill for the purpose of impeaching his credibility. Furthermore, they argue that the jury were permitted to accept evidence of his drinking habits as direct evidence of his condition on the night of the accident. The plaintiffs' exception to the admission of certain evidence of William Underhill's drinking habits does not encompass the broad sweep of plaintiffs' argument but lies in a rather narrow section.

In direct examination, Mr. Underhill testified that he had consumed only three bottles of beer at a social gathering that began at 5 p.m., and lasted until after 3 a.m. He further testified that he consumed the last bottle at 10 p.m., more than five hours before the accident. It was proper cross-examination and relevant on the issue of credibility of that testimony to inquire into his drinking habits. In response to the questioning of defendant's counsel, he testified he drank on the average a beer each evening and denied that he purchased one or two six-packs of beer two or three times a week. A grocery store operator later testified for the defendant that Mr. Underhill regularly purchased one or two six-packs of beer four or five times a week.

We agree with the plaintiffs that the jury might not properly consider evidence of the plaintiff's drinking habits as direct evidence of his condition on the night of the accident. See Morley v. Clairmont, 110 N.H. 12, 259 A.2d 136 (1969). However, when the plaintiffs objected to questions on Mr. Underhill's drinking habits, defendant specifically stated that it was offered on the credibility of Mrs. Underhill's testimony as to the number of beers he had consumed on the night of the...