Opinion
No. 4095.
Decided February 5, 1952.
Where no issue was raised during the progress of the trial concerning the use of extrajudicial statements made by either parties or witnesses and no suggestion was made by Court or counsel that they were not competent for all purposes, failure of the Court to instruct the jury specifically on the affirmative character of such statements in case of parties was not error.
CASE, for negligence to recover damages arising out of an inter-sectional collision in Nashua, New Hampshire, on December 23, 1949. Trial by jury resulted in a verdict for the defendant. Plaintiff's exception to the refusal of the Court to give a requested instruction to the jury was transferred by Wescott, J., in the following reserved case: "Action on the case for negligence. The plaintiff was a passenger in an automobile operated by her daughter, Lucille Spaney, and was injured on December 23, 1949, when that car collided with an automobile owned and operated by defendant Ambrose R. Dwyer in the vicinity of the intersection of Lowell Road and Learned Street in Nashua. Plaintiff instituted actions against said Lucille Spaney and defendant Dwyer for personal injuries and consequential damages. Defendant Dwyer instituted suit against said Lucille Spaney for property damage. The owner of the car operated by said Lucille Spaney instituted suit against defendant Dwyer for property damage. All actions were tried together by a jury. The jury returned a verdict for the plaintiff against said Lucille Spaney and for defendant Ambrose R. Dwyer in this action and for said Dwyer in the action in which he was plaintiff.
"During the trial plaintiff duly excepted . . . to the failure of the Court to instruct the jury, pursuant to plaintiff's written request that statements made by either Mrs. Spaney or Mr. Dwyer in their depositions contrary to the facts testified to by them at the trial may be considered as evidence of the facts stated in their depositions." Other facts appear in the opinion.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Langdell orally), for the plaintiff.
Paul E. Nourie (by brief and orally), for the defendant.
The defendant's version of the accident as it appears in the report to the Motor Vehicle Commissioner, in his deposition and in his testimony at the trial, discloses some variation and inconsistencies in regard to the place of the accident, speed of his car, the length of his brake marks and what he did to prevent the accident. These variations and inconsistencies were thoroughly explored by detailed examination and rigid cross-examination of all counsel. In arguments to the jury, comment was made by counsel concerning the differences between the defendant's statements in the motor vehicle report, his statements in the deposition and his testimony at the trial relating to the place of the accident and his speed at the time of the accident. The relative weight to be given to these statements in the report, in the deposition and at the trial was not mentioned by counsel in their arguments nor referred to by the Court in his charge to the jury. All the exhibits, including the motor vehicle report, a photograph and signed statement taken from two witnesses were given to the jury for their deliberation. The Court concluded his instructions to the jury with the following: "You will have with you in your jury room the various exhibits which have been admitted in evidence during the trial for your examination. You will make such use of them as you think should be made."
This case is unlike Zogoplos v. Brown, 84 N.H. 134, where the Court had given an instruction as to the effect of extrajudicial statements of a witness inconsistent with his testimony but failed to give a further instruction as to the effect of such statements in the case of parties. This was held to be error. III Wig. Ev. (3rd ed.) s. 1018. Although the reports and depositions were referred to in argument by plaintiff's counsel, no suggestion was made at any time in the course of the trial that they stood any differently from testimony given on the stand. Moreover the statements of witnesses who were not parties were received without limitation as to their use or requests for limiting instructions. The present case has some similarity to Sullivan v. Sullivan, 91 N.H. 341, 346, where it was said: "Having thus correctly instructed the jury as to the effect of Hepworth's alleged intoxication, it was unnecessary for the court to go further and give them special instructions as to the use of the evidence by which the charge of intoxication was sought to be proved."
There being no issue concerning the use of extrajudicial statements made by either parties or witnesses, and no suggestion that they were not fully competent for all purposes, "there was no occasion for the Court to distract the jury's mind with reference to a non-existent issue." Colby v. Avery, 93 N.H. 250, 256. As the case was submitted they had no reason to suppose that the reports and depositions of the parties differed from any other evidence or that they were not entitled to such weight, whether great or little, as the jury might think proper. "The jury were at liberty to accept either [the defendant's] first or . . . second version of the accident whichever they in their discretion should find the more convincing." Cedergren v. Hadaway, 91 N.H. 270, 272. The same thought was expressed in Blackman v. Rowe, 96 N.H. 207, 210: "the jury was at liberty to accept [the party's] testimony in court in preference to" her written statement prior to trial. In view of the way the case was submitted and argued, the requested instruction was unnecessary.
While an instruction on inconsistent statements may properly be given, there is no mandatory requirement that it be done in every case. The credibility of the defendant's testimony was the obvious issue in this action. Counsel were free to argue this issue and the Court could reasonably conclude under the circumstances that the jury could determine this issue of credibility without specific instructions on the difference between inconsistent statements of parties and witnesses. See Paradis v. Greenberg, 97 N.H. 173, 175.
Exception overruled.
All concurred.