Opinion
Decided March 15, 1927.
No particular formula is essential to saving an exception to a ruling if it appears from the whole record that the court and counsel understood that an exception was allowed.
If prejudicial evidence is offered, objection thereupon made and exception taken, the better practice is to renew the objection after such evidence is introduced and to request a ruling on such objection; which should be followed by exception if the objection is overruled.
Where proffered evidence though of a prejudicial character has also some relevancy the question is one of fact for the trial court whether the probative usefulness of the evidence outweighs its prejudicial disadvantage.
Where evidence subject to discretionary admission has been received against objection and the record is ambiguous and has some tendency to show that discretion was not exercised, the case should be amended to show whether discretion was or was not exercised. If discretion was not exercised, a new trial should be granted; but if exercised and it was intended to reserve the question of the sufficiency of the supporting evidence, it should be fully reported.
CASE, for personal injuries and property damages suffered in an automobile collision.
An automobile belonging to one King, the defendant's car, and the plaintiff's automobile, in the order named, were proceeding northerly upon the state highway. The plaintiff's evidence tended to prove that the defendant undertook to pass King when the two automobiles were approaching the top of a hill; that when nearly opposite King's car and on the westerly side of the highway, the defendant's automobile collided with a fourth car traveling south; that the driver of the latter was deprived by the collision of the control of his car, which veered to the easterly side of the highway, colliding with the plaintiff's automobile and causing the damages complained of. The defendant's evidence, on the contrary, tended to show that he was driving upon the easterly side of the highway and that the collision was due solely to the negligence of the operator of the south-bound car.
King, called as a witness by the defendant, testified to facts supporting the defendant's, and contradicting the plaintiff's, position. Upon cross-examination, having confirmed his evidence in chief, he was asked the question, "When did you first talk with anybody connected with this case about it?", to which he replied, "Why, in Boston." At this point the examination was interrupted by the defendant's counsel, who, in conference in chambers, objected to questions as to whom the witness had talked with, on the ground that the answers would be likely to disclose the prejudicial fact that the defendant was insured. The objection was overruled, the court stating that if plaintiff's attorney desired to ask the questions and take his chances on the answers he could do so; whereupon the following further cross-examination was had: "Q. You said you talked with somebody in Boston? A. A man who represented himself to be from the insurance company asked me what I saw of the accident and I told him. Q. How long was that after the accident? A. I should say it was the following week if I remember correctly. Q. Did you give him a signed statement? A. I did. . . . Q. Is that the first attempt you made to charge your memory with the accident? A. No, sir, I charged my memory with it that night at the scene of the accident." The defendant, thereupon, moved for a mistrial. This motion was denied subject to the defendant's exception. No request was made to strike out the prejudicial fact or to limit the use of the evidence; nor was any reference made to it in the charge.
There was a verdict for the plaintiff, which the defendant moved to set aside on the ground that the jury was so influenced by bias and partisanship and by the prejudicial effect of the testimony relating to insurance that it fell into a plain mistake. The court declined to find that the testimony relating to insurance affected the verdict and denied the motion, but granted the defendant's exception to such denial so far as the record raised any question of law. Further facts appear in the opinion. A bill of exceptions was allowed by Branch, C.J.
John M. Stark and Robert W. Upton (Mr. Upton orally), for the plaintiff.
Demond, Woodworth, Sulloway Rogers (Mr. Jonathan Piper orally), for the defendant.
The record does not sustain the plaintiff's contention that the defendant failed to protect his rights. It is true that the defendant was not "aggrieved" (P. L., c. 315, s. 8) until the prejudicial matter objected to had been received in evidence. See Beaudette c. Co. v. Therrien, 81 N.H. 117, 118; Small v. Saunders, 81 N.H. 520. The better practice called for a renewal of the defendant's objection, ruling thereon, and formal exception thereto. No particular formula, however, is essential to the saving of an exception to a ruling, so long as it appears from the whole record that the court and counsel must have understood an exception was allowed. Dziedzic v. Company, 82 N.H. 472; Byron v. Railroad, 82 N.H. 434; Maravas v. Assurance Corp'n, 82 N.H. 533. The anticipatory objection that the fact of insurance would be disclosed by the course the examination was taking had been overruled with the pertinent statement that the plaintiff would "take his chances on the answers." The finality of the court's words indicate something more than a purpose to rule later if required. It seems more probable than otherwise that the court intended, and that the parties understood, that the rights of the defendant, contingent upon injection of the fact of insurance, were saved to him.
Proof that the witness, King, had talked with a representative of an insurance company the week following the accident and had given him a signed statement gave the jury to understand that the party calling him was insured. This imputation is not negatived by the absence of evidence as to whether or not the other car owners involved in the accident carried insurance. The prejudicial character of the evidence was obvious. The injected fact that the defendant was insured was potent to "excite prejudices or raise false impressions." Piechuck v. Magusiak, 82 N.H. 429, and cases cited.
The plaintiff seeks to justify his offer of the objectionable fact as tending to discredit King. It is argued that interviewing a witness creates a relationship between the interviewer and the witness competent to be shown; and that the relation of the adjuster to the witness here could not be fully developed without bringing out the fact of insurance. The plaintiff's major position in argument is that such relationship, being a matter in issue, "may always be shown," either upon cross-examination or by the testimony of other witnesses, under the principle laid down in Drew v. Wood, 26 N.H. 363, 365, and State v. Marvin, 35 N.H. 22, 28. In neither of these cases was the prejudicial character of the proffered evidence discussed. Evidence may be logically relevant but inadmissible for other reasons. Curtice v. Dixon, 74 N.H. 386, 394; Cole v. Boardman, 63 N.H. 580, 581; Woodward v. Bixby, 68 N.H. 219, 221. To adopt the plaintiff's contention, would be to make relevancy the sole test of admissibility in all cases, and to ignore the auxiliary principle governing the exclusion of circumstantial evidence when it would result in the confusion of issues or undue prejudice. Wig. Ev. (2d ed.), ss. 29a, 42, 55, 57, 1904.
Conceding the plaintiff's good faith, it was his legitimate purpose to attack the credibility of the witness by proving an opportunity on the part of the defense to influence his testimony. To this end he had been permitted to show, without objection, that the witness had reviewed the circumstances of the accident with the defendant's counsel. Proof that he had previously been interviewed by others was, therefore, cumulative evidence upon a collateral issue. The fact of such prior conference was already in evidence, when the examination of the witness was interrupted by the objection in chambers. The offer objected to was to prove the remoter fact of the identity of the person who had interviewed the witness in Boston. At most, it was one link in a chain of circumstantial facts whose only office was to induce a belief that the witness had been exposed to adverse influences. It is conceded by the plaintiff that the value of the evidence was not great. The defendant's objection to the offer presented the question whether the probative usefulness to the plaintiff's case of the proof of the identity of the interviewer as an adjuster of an insurance company outweighed the prejudicial disadvantage of the evidence to the defendant. In other words the objection invoked the undue prejudice rule. 4 Wig. Ev. (2d ed.), s. 1904; Rogers v. Rogers, 80 N.H. 96, 97; Bunten v. Davis, 82 N.H. 304, 311.
The invocation of this rule was an appeal to the discretion of the presiding justice, and presented the question of fact whether the objectionable evidence would do more harm than good. Bunten v. Davis, supra, and cases cited. Upon this question the defendant was entitled to a finding. The conference in chambers is not reported. The record as transferred is ambiguous, and has some tendency to show that discretion was not exercised, sufficient to overcome the presumption ordinarily arising from the mere reception against objection, of evidence subject to discretionary admission. If discretion was exercised it does not clearly appear upon what evidence the result was reached. In this situation the appropriate procedure is to return the case to the superior court for an order, or for amendment. Walker v. Railroad, 71 N.H. 271, 273; Besse v. Railroad, 77 N.H. 605; Barrett v. Cady, 78 N.H. 60, 68; McGinley v. Railroad, 79 N.H. 320, 323. If the court did not exercise its discretion and make a finding upon the issue of prejudice, the defendant is entitled to a new trial. If discretion was exercised, and it was intended to reserve the question of the sufficiency of the supporting evidence, such evidence should be fully reported.
Case discharged.
BRANCH, J., did not sit: the others concurred.