Wilson v. Jeffrey

• Decision Date: 05 December 1951
• Parties: WILSON v. JEFFREY (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 426

102 N.E.2d 426

328 Mass. 192

WILSON v. JEFFREY (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 24, 1951.

Decided Dec. 5, 1951.

A. A. Philbin, Clinton, J. J. Philbin, Clinton, with him, for plaintiffs.

B. C. Tashjian, Worcester, E. D. Simsarian, Boston, with him, for defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

These are two actions of tort to recover damages arising from a collision between an automobile in which the plaintiffs were riding in a westerly direction along a main highway in Bolton and an oil trailer drawn by a tractor which was travelling in an easterly direction and which was operated by one Edwards, an employee of the defendant. The accident occurred on the late afternoon of March 2, 1947, at a time when the highway was covered with three or four inches of slush. The jury found for the defendant.

Edwards, called by the defendant, testified that the automobile as it passed the tractor turned to its left and struck the left rear wheel of the trailer. He denied that he told the police officers at the scene that the trailer 'jackknifed' to its left across the road. The chief of police, called by the plaintiffs, testified that Edwards told him that he applied the brakes as the automobile approached and that the trailer 'jackknifed on me' and struck the automobile before he was able to get the trailer back to the right side of the raod. On cross-examination, the witness testified that a few days after the accident he received a report from Edwards on one of the blanks supplied by the registry of motor vehicles. He was then asked whether there was any mention of 'jackknifing' in that report. After an objection to this question by the plaintiffs, the judge conferred with counsel at the bench, at the conclusion of which the judge stated that he would admit the question to rebut any claim that the testimony of Edwards that the tractor trailer did not jackknife was a recent contrivance. He saved the exception of the plaintiffs. Counsel for the plaintiffs immediately told the judge that the 'exception is not based on' a claim of recent contrivance but that the evidence was too remote in time, but the judge interrupted and informed counsel that counsel lost the point and that counsel was 'taking the position, necessarily, that what he [Edwards] said on the witness stand is a recent contrivance,' and that the evidence was offered to show that his testimony was not a recent contrivance. The witness then answered that there was nothing in the report about jackknifing.

The testimony of Edwards that he did not tell the chief of police that the trailer jackknifed was contradicted by the testimony of the chief. Obviously, the testimony of Edwards and the statement attributed to him by the chief of police could not both be true. The general rule with certain exceptions is well established that a witness whose testimony is contradicted is not entitled to bolster up his testimony and enhance his credibility by showing that he had previously made statements consistent with his testimony. Deshon v. Merchants' Ins. Co., 11 Metc. 199, 209; McDonald v. New York Central & Hudson River Railroad Co., 186 Mass. 474, 478, 72 N.E. 55; Commonwealth v. Tucker, 189 Mass. 457, 479-485, 76 N.E. 127, 7 L.R.A.,N.S., 1056. The exceptions to the rule were stated in Walsh v. Wyman Lunch Co., 244 Mass. 407, 409, 138 N.E. 389, 391, as follows: 'Where it is claimed that the testimony is a recent invention or fabrication, or was given under bias or undue influence, or that the facts described in the previous testimony have been concealed under conditions which warrant the belief that, if true, the witness would have stated them.' Commonwealth v. Jenkins, 10 Gray 485, 488; Griffin v. Boston, 188 Mass. 475, 74 N.E. 687; Smith v. Plant, 216 Mass. 91, 102-103, 103 N.E. 58; Ananian v. Melkon, 230 Mass. 322, 326, 119 N.E. 767; Commonwealth v. Corcoran, 252 Mass. 465, 487, 148 N.E. 123; Kelley v. Boston, 296 Mass. 463, 465, 6 N.E.2d 371.

Our inquiry is to determine whether the evidence in question comes within the general rule or one of the exceptions. The judge admitted the evidence solely upon the ground that it was competent to meet a claim of recent contrivance. We discover nothing in the record, either in the cross-examination of Edwards or from any other circumstance, that indicated that counsel intended to make such a claim. Moreover, the judge stated in substance that he would admit the evidence to rebut a claim that the testimony given by Edwards 'was a recent contrivance for the purpose of this case.' Counsel at once stated that his objection to the evidence was 'not based on' the ground that the testimony of Edwards was a recent contrivance. Counsel had the choice of attacking Edwards' story on the witness stand as a recent fabrication or of going no farther than to rely upon the evidence already introduced which contradicted Edwards' testimony and dealing with the case as the ordinary one involving contradictory evidence. It is plain that he adopted, as he had a right to do, the latter course. His statement to the judge was sufficient to declare his position. The judge, however, without anything so far as appears to support him, told counsel that counsel was 'taking the position,...