Walker v. Walker

• Decision Date: 24 May 1965
• Citation: 106 N.H. 282,210 A.2d 468
• Parties: Essfa E. WALKER v. Howard C. WALKER.
• Court: New Hampshire Supreme Court

Page 468

210 A.2d 468

106 N.H. 282

Essfa E. WALKER v. Howard C. WALKER.

Supreme Court of New Hampshire.

Argued Jan. 5, 1965.

Decided May 24, 1965.

James J. Kalled, Wolfeboro, by brief and orally, for plaintiff.

Hinkley & Donovan, Lancaster (Walter D. Hinkley, Lancaster, orally), for defendant.

BLANDIN, Justice.

Defendant's counsel attacks first the ruling of the Trial Court which permitted two officers who investigated the accident to testify that they did not believe the defendant when he told them at the scene shortly after the occurrence that his wife was driving the car. In this jurisdiction the test usually applied to determine the admissibility of opinion evidence is to inquire 'whether the witness' knowledge of the matter in question will probably aid the triers in their search for the truth.' Paquette v. Connecticut Valley Lumber Company, 79 N.H. 288, 299, 109 A. 836, 837. This principle has been reaffirmed many times, both before (Hardy v. Merrill, 56 N.H. 227; Davis v. Boston I.M.R. Railroad, 75 N.H. 467, 76 A. 170.) and since the Paquette decision. Higgins v. Carroll, 86 N.H. 312, 167 A.2d 270; Goldstein v. Corporation, 86 N.H. 402, 169 A. 587; Carbone v. Railroad, 89 N.H. 12, 20, 192 A. 858; Dowling v. Shattuck, 91 N.H. 234, 236, 17 A.2d 529. Following the Dowling opinion, a long unbroken line of recent decisions, all of which it seems unnecessary to cite, have conclusively demonstrated that there has been no narrowing of the rule, but if anything a more liberal interpretation of it. Zellers v. Chase, 105 N.H. 266, 269, 197 A.2d 206. It appears that Wigmore approves the law as established here. 7 Wigmore, Evidence (3d ed.) ss. 1918, 1924, 1926; see also, American Law Institute, Proposed Model Code of Evidence, Rule 401. In implementing the principle, the preliminary question of whether the witness's opinion might aid the jury in their attempt to find the truth indubitably rests within the sound discretion of the Trial Judge. Dowling v. Shattuck, supra; Zellers v. Chase, supra.

The application of the above rule requires a discussion of the relevant facts disclosed by the record. It seems that the two officers who investigated the accident came on the scene shortly after it occurred. They observed the situation and talked with the defendant. They were men trained to investigate such matters and to draw inferences from the physical facts relating to the position of the vehicle, or vehicles, involved, the marks on the ground and similar relevant objects. In addition to this the tone of voice, the looks, the gestures and innumerable other and more subtle factors observed by the officers bore on whether the defendant was telling the truth at that time. In Hardy v. Merrill, 56 N.H. 227, the Court says as to certain mental and physical conditions: '* * * it is impossible to convey to the mind of another any adequate conception of the truth by a recital of visible and tangible appearances,--because you cannot, from the nature of the case, describe emotions, sentiments, and affections, which are really too plain to admit of concealment, but, at the same time, incapable of description,--* * *.' Id., 242.

Although these sensible observations were made some ninety years ago, we think that the nature of man as expressed by his ability to receive and convey certain impressions has undergone no significant changes since then. This is recognized by Wigmore, who cites the Hardy case approvingly and quotes at length from it. 7 Wigmore, Evidence (3d ed.) s. 1918, p. 13. Appellate courts apply an analogous rule in uniformly holding that the question of credibility is for the triers of fact who saw and heard the witnesses, rather than for the appellate court, which has only the record upon which to form its opinion. In the situation before us, we believe that the Trial Court's conclusion that the opinion of these witnesses would aid the jury in resolving the decisive issue as to who was the operator of the car is clearly sustainable.

A further objection to the evidence is that it was prejudicial. However, the witnesses had already given their opinions that the defendant, and not his wife, was the operator of the car. These were their convictions, formed at a moment when the scene was before them and all their impressions of the circumstances and the defendant's attitude and manner were vivid and fresh in their minds. In saying that they did not believe him, these witnesses in substance were merely reaffirming their previously expressed opinions that he, rather than his wife, was the operator. The Trial Justice who presided and observed the entire course of the proceedings denied the defendant's motion for a mistrial, based upon the ground that the testimony was prejudicial. His conclusion is entitled to great weight. McLaughlin v. Union-Leader, 99 N.H. 492, 499, 166 A.2d 489. Undoubtedly such inquiries as were here permitted should not ordinarily be encouraged. However, viewing the present situation in its entirety, we cannot say as a matter of law that the Presiding Justice's finding that the trial was not rendered unfair, was so clearly erroneous as to require a new trial. The defendant's exception to the Trial Court's conclusion is therefore overruled.

The defendant's execution to the denial of his motions for a nonsuit and directed verdict on the grounds that it conclusively appeared that the plaintiff was driving do not require extended consideration. The plaintiff herself, a young man in a car which they passed shortly before the accident, and other testimony which will be hereinafter discussed, combine to make a jury issue. As we have repeatedly held in such situations, the conflicts were for the triers of fact to resolve. Giguere v. Railroad, 86 N.H. 294, 298, 167 A. 561; Gorman v. New Eng. Tel. & Tel. Co., 103 N.H. 337, 344, 172 A.2d 372. The fact that the plaintiff had said prior to the trial that she was the operator is not decisive. It is still for the jury to determine the truth. Lampesis v. Comolli, 101 N.H. 279, 284, 140 A.2d 561. It is only in rare instances that testimony is incredible as a matter of law. Lampesis v. Comolli, supra, 101 N.H. 283, 140 A.2d 561; Romano v. Company, 95 N.H. 404, 407, 64 A.2d 695. This is not such a case, and the defendant's exceptions to the denial of his motions for a nonsuit and directed verdict are overruled.

The claim of the defendant that if he were driving the plaintiff must be found contributorily negligent as a matter of law, also cannot be sustained. It is true that a passenger may be charged with contributory negligence as a matter of law. See Chalmers v. Harris Motors, 104 N.H. 111, 179 A.2d 447. However, the facts here furnish no sufficient basis for such a determination. There was evidence that the plaintiff did protest the defendant's speeding, and when she had done so on occasions prior to the accident, he had slowed down. Although they both had been drinking, the testimony was that he was not under the influence. They had been quarreling about family matters, but when he stopped and offered to let her take the wheel, she said that she did not do so because he had become so angry that 'I feared that he would strike me.'

The burden was on the defendant to convince the jury that Mrs. Walker was contributorily negligent. Chalmers v. Harris Motors, supra, 114, 179 A.2d 447. Construing the evidence most favorably to the plaintiff as we are bound to do, we cannot say as a matter of law that all reasonable persons must have found that she did not exercise any care for her own safety. Manseau v. Railroad, 96 N.H. 7, 11, 69 A.2d 613. Accordingly, the defendant's exception on this score is overruled.

The issue has also been raised that the opinions expressed by the police officers that the defendant was driving were improper. It appears that these were men of long experience in investigating automobile accidents. They were on the scene shortly after the occurrence. It could be found that the carefully observed the relevant facts, including, among others, the position of the car, the plaintiff's position on the passenger's side, the fact that the defendant had extricated himself from the wreck, the damage to the automobile, and the injuries to the parties. In these circumstances, we cannot say that the opinion of these men, trained by long experience to investigate just such situations, could not aid the jury in its search for truth. Zellers v. Chase, 105 N.H. 266, 197 A.2d 206. The defendant's exception to this evidence therefore cannot prevail.

An orthopedic physician, who treated the plaintiff commencing about a week after her injury, was also permitted over the defendant's exception to testify that her injuries were 'consistent' with her having been a passenger. This witness was possessed of some fifteen years' experience and had treated many persons injured in automobile accidents. He was also familiar with the interior of a Thunderbird, which was the type of automobile here involved. It is true that counsel's hypothetical question asked the doctor to assume that Mrs. Walker was a passenger. Since there was evidence in the case to this effect, this was proper. Fitzpatrick v. Company, 101 N.H. 35, 42, 131 A.2d 634. That the doctor did not support his opinion by minute details goes to the weight and not the admissibility of the evidence. Welch v. H. P. Hood & Sons, 104 N.H. 207, 209, 182 A.2d 461. Counsel for the defendant could have pressed for more specifics had he desired to do so. In fact, the record discloses that he did commence such an interrogation...