Williams v. Williams

• Decision Date: 03 December 1935
• Citation: 182 A. 172
• Parties: WILLIAMS v. WILLIAMS. MITCHELL v. SAME.
• Court: New Hampshire Supreme Court

182 A. 172

WILLIAMS

v. WILLIAMS.

MITCHELL

v. SAME.

Supreme Court of New Hampshire. Rockingham.

Dec. 3, 1935.

Action by Martha Y. Williams against George F. Williams, and Charles L. Mitchell against George F. Williams. Verdicts for the plaintiffs, and case was transferred to the Supreme Court upon defendant's exceptions.

Judgment on the verdicts.

Two actions on the case by passengers against the owner and operator of an automobile to recover for damages for personal injuries sustained in a collision. Trial by jury, with verdicts for both plaintiffs. Transferred by Scammon, J., upon the defendant's exceptions to the denial of his motions for nonsuits and directed verdicts, to certain rulings of the court upon questions of evidence, and to the allowance of portions of the argument of plaintiffs' counsel.

At the argument in this court the exceptions to the denial of defendant's motions for nonsuits and directed verdicts were waived. The facts and the rulings of the court to which exception was taken are sufficiently stated in the opinion.

William H. Sleeper, of Exeter, for plaintiffs.

Devine & Tobin, of Manchester (M. F. Devine, of Manchester), for defendant.

BRANCH, Justice.

The injuries for which the plaintiff Williams sought to recover, as described by the attending physician, "consisted of multiple bruises of the legs and thighs, pain and stiffness in the right thumb and extensive lacerated wound of the scalp." "The most noticeable bruises on the legs" were "in the region of the knees."

Just before the evidence was closed, the defendant offered in evidence "the official hospital record of Mary Williams," "for the purpose of showing that she made no complaint about her knees at the hospital." This evidence was excluded, and the defendant excepted.

Although a liberal rule in regard to the admissibility of entries made in the regular course of business prevails in this jurisdiction (St. Louis v. Railroad, 83 N. H. 538, 145 A. 263; State v. Roach, 82 N. H. 189, 192, 131 A. 606; Roberts v. Company, 78 N.H. 491, 102 A. 537), some proof of correctness is required before such entries can properly be submitted to a jury. St. Louis v. Railroad, supra; Mason v. Railway, 79 N.H. 300, 303, 109 A. 841. Ordinarily, verification of the authenticity, regularity, and correctness of such records by "the official having them in charge" (State v. Roach, supra, 82 N. H. 189, 192, 131 A. 606, 608) would be the minimum of acceptable proof, but whether a record of this kind is sufficiently verified to justify its admission is a preliminary question of fact for the trial judge to pass upon. "No doubt much should be left to the discretion of the trial court; production (of witnesses having personal knowledge of the facts) may be required for cross-examination, where the nature of the controversy seems to require it." 3 Wig. Ev. (2d Ed.) § 1530. The proceedings in the present instance lend importance to the qualification above quoted, since one of the grounds of objection to the admission of this record stated by plaintiff's counsel was that he desired an opportunity to recall the attending physician, presumably for the purpose of inquiring as to the completeness and accuracy of the statements contained therein.

"The question of the fulfilment of the requirement of regularity presented a question in the first instance for the trial court. 3 Wig. Ev. § 1525; Pratt v. White, 132 Mass. 477, 478; Dow v. Sawyer, 29 Me. 117, 119; Wheeler v. Walker, 45 N.H. 355, 360. If there was evidence tending to support if, the conclusion of the trial justice 'will not be interfered with unless clearly wrong.' Wilcox v. Downing, 88 Conn. 368, 91 A. 262; Riley v. Boehm, 167 Mass. 183, 45 N.E. 84, and cases cited." Lebrun v. Railroad, 83 N.H. 293, 300, 142 A. 128, 133.

In the present case the state of the proof at the time when the record was excluded justified the ruling of the presiding justice. The offered documents were produced by a nurse who stated that she did not have the custody of the official records of the hospital "except in the absence of the superintendent." Although the absence of the superintendent was not explained, the nurse's statement that she had with her "the official hospital record of Mrs. Williams" might properly have been accepted as sufficient proof of the authenticity of the record. She disclosed no knowledge, however, as to the system or method in accordance with which the hospital records were kept; as to the identity of the persons who made the record in question; or their duties with respect to the recording of facts therein. In short, "No one testified the record was correct." Mason v. Railway, 79 N.H. 300, 303, 109 A. 841, 843.

The record was offered solely as the basis for a negative inference; namely, that the plaintiff "made no complaint about...