Woodman v. Peck

• Court: New Hampshire Supreme Court
• Writing for the Court: ALLEN, Chief Justice
• Citation: Woodman v. Peck, 90 N.H. 292, 7 A.2d 251 (N.H. 1939)
• Decision Date: 22 June 1939
• Docket Number: No. 3061.,3061.
• Parties: WOODMAN v. PECK (two cases).

7 A.2d 251

WOODMAN

v. PECK (two cases).

No. 3061.

Supreme Court of New Hampshire. Merrimack.

June 22, 1939.

Transferred from Superior Court, Merrimack County; Burque, Judge.

Actions by Wilfred Woodman by next friend, and by O. Ray Woodman and another, against Warren Peck for injuries sustained by the first-named plaintiff allegedly as a result of negligence in operation of an automobile by the defendant. Verdicts were for the plaintiffs. Transferred on defendant's exceptions.

Judgments for the plaintiffs.

Actions, for negligence in the operation of an automobile causing personal injury to the plaintiff Wilfred, a minor, and resuiting loss to his parents. Wilfred was a passenger in a car which met the defendant's. The cars did not collide, but it was claimed that the defendant drove in such a manner as to force the other car so far to the side of the road that control of it was lost, with its resulting overturn. A jury returned verdicts for the plaintiffs.

Transferred on exceptions of the defendant to evidence, argument, the charge, and the denial of requested instructions. The exceptions, with the facts material thereto, appear in the opinion.

Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiffs.

Demond, Sulloway, Piper & Jones, of Concord (Franklin Hollis, of Concord, orally), for defendant.

ALLEN, Chief Justice.

I. Exception was taken to evidence of the promise of the parents to pay the hospital and nursing bills for their son when they could. The claim is made that it tended to show their poverty.

The law being that a parent is not liable "to third parties for necessaries furnished a minor child in the absence of an express or implied contract" (McConnell v. Lamontagne, 82 N.H. 423, 424, 134 A. 718, citing other cases), clearly the agreement to pay, as an express contract, might be shown. The presentation of a bill is not of itself evidence of a promise to pay it, and the parents' liability for the bills was not conceded. The fact of poverty like that "of insurance may incidentally and unavoidably appear" (Piechuck v. Magusiak, 82 N.H. 429, 431, 135 A. 534, 535), and the situation may then call for an instruction to disregard it. See, also, O'Malley v. McGillan, 86 N.H. 186, 187, 165 A. 279. As to the bills the father assumed, the objection was to evidence of their payment, and not to the inferential disclosure of poverty. With reference to the bills which the mother promised to pay, the jury were directed to consider the evidence "simply on the question of having assumed obligations to pay" them. The presumption that instructions are heeded applies.

After the accident the plaintiff Wilfred was taken to a hospital in a town at some distance from the home of the parents. It was in evidence that to be with him while there they incurred traveling expenses of transportation, board and lodging. The evidence was admissible. Their attendance on their son might be found a reasonable need for him, by way of comfort and cheer, in recovery. If of less importance, the attendance was findably in furtherance of the same purpose as the hospital's service, the doctor's treatment, and the nurse's care. The objection to the evidence was general, and it was not sought to limit its use by request that the expenses were not to be allowed if they were incurred for "the pleasure and comfort" of the parents.

Whether, when a father sues for consequential loss for injury to a minor child, the mother may join with him in the action, seems doubtful. The statute (P.L. c. 290, § 4) making the parents the joint guardians of every unmarried child and providing that their "powers, rights and duties * * * in regard to such child shall be equal", relates in its viewpoint to the subject of guardian and ward as well as to that of parent and child. A purpose that the duties of guardianship imposed upon the mother should include the parental duty of support when the father's duty to support is in force and available, may be questioned. In Ernshaw v. Roberge, 86 N.H. 451, 456, 170 A. 7, it was held that allowance for the mother's services in caring for an injured child was to be given as an expense borne by the father in his action against the wrongdoer. The holding was erroneous if the mother owed her services to the child. But decision here is not required, since no objection was raised at the trial to the mother's standing as a joint plaintiff with the father.

The exceptions relating to the topic of damages in the parents' action are accordingly overruled.

II. After the accident photographs at its scene were taken by a witness engaged by a person acting in the defendant's behalf and giving the photographer instructions. The photographs taken did not show some marks on the highway which were evidence against the defendant. In argument plaintiff's counsel commented that the person engaging the photographer had not appeared as a witness to testify what instructions he had received for his directions to the photographer. No explanation for not producing him as a witness had been made.

"It is not necessary to cite authority for the proposition that the failure to call an available witness is legitimate matter to argue to the jury." Lee v. Hustis, 79 N.H. 434, 436, 111 A. 627, 628. And the comment may be that his evidence would be unfavorable. Mitchell v. Boston & M. Railroad, 68 N.H. 96, 116, 34 A. 674; Brito v. Newmarket Mfg. Company, 79 N.H. 163, 164, 106 A. 224.

The exception to the argument is accordingly unsustained. But there remains to be considered in connection with it the exception to the denial of the request for an instruction that no inference of "a consciousness of guilt" was to be drawn from the defendant's "arrangements to have the accident investigated and photographs prepared of the scene of the accident". The request concededly was made because of the ruling sustaining the comment already considered. The comment related to the character of the investigation in obtaining evidence, and not to the fact of investigation. The unfavorable testimony which it could be argued the person not called as a witness would give was of instructions to have photographs taken which would be one-sided in showing how the accident occurred. As only a...