70 A.2d 486

TRYGVE B. AMUNDSEN v. BOSTON AND MAINE TRANSPORTATION CO.

No. 3857.Supreme Court of New Hampshire Strafford.
Decided January 3, 1950.

Where on cross examination of a witness counsel sought to introduce a copy of his accident report to the motor vehicle department for the purpose of contradicting his testimony such report was properly excluded in the Trial Court’s discretion as being merely cumulative where the witness admitted the statement contained in the report was made by him and the content of the statement already appeared in evidence. An argument by defendant’s counsel, which sought to draw the implication from the manner plaintiff’s counsel conducted the trim of his case that it revealed a consciousness of weakness, was persuasive rather than probative and did not exceed the limits of propriety, although not of a type to be commended. The denial of the motion to set aside the verdict because certain oral comment of the Trial Court during the trial and certain arguments of counsel with respect to it were prejudicial implied the finding that the trial was fair and the comment and argument warranted; and where no doubt is thrown upon the presumption that the motion was impartially determined, the finding will be sustained.

CASE for negligence to recover damages for personal injury suffered by the plaintiff on January 14, 1945 in Portsmouth, when one of the defendant’s busses, in which he was a passenger, collided with a pole. Trial by jury, which returned a verdict for the defendant.

In the course of direct examination, the operator of the defendant’s

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bus, called as a witness by the defendant, testified that at the moment of collision with the pole he had reduced the speed of the bus to approximately five miles an hour. On cross examination plaintiff’s counsel confronted him with a photostatic copy of his motor vehicle report which he identified as such, and conceded bore his signature. He admitted that in answer to the question, “Estimated speed of your vehicle?” he had reported “Twenty miles an hour.” He also admitted that the diagram in the report did not show a parked car to which he had referred in his direct examination. Counsel thereafter offered the report in evidence, and it was excluded subject to exception, with the comment that the witness “admits what the contents are.”

In the course of the plaintiff’s evidence certain x-ray plates were identified by a witness who produced them. On a subsequent day, the plaintiff called his attending physician as a witness and examined him with respect to the x-rays. The record indicates that the examination was halting, and largely given to an attempt to fix the chronology of the plates by date or number. At the recess, the Presiding Justice said: “Take a recess, gentlemen. Please try to get those x-rays straightened out while we take a recess. This is about the worst performance I ever saw.” Upon resumption of the trial, counsel offered the remaining plates in evidence and concluded the direct examination.

Referring to this incident in argument to the jury, counsel for the defendant said: “You saw the exhibition that took place here yesterday while Dr. Hazzard was on the stand. They wasted your time and the Court’s time shuffling the record and the x-rays around. What were they trying to do, wait until the noon hour until that man Wilson went out so that you wouldn’t have his testimony? You, say, Mr. Foreman and gentlemen, if that performance that they put on here yesterday which the Judge described as one of the worst exhibitions he had ever seen, you say if that wasn’t done deliberately for the purpose of hoping those witnesses would leave this courtroom.” Upon objection “to the argument that certain things were done for the purpose of preventing the examination of Wilson,” and to the argument of “some remark that he claims the Court made” the argument was permitted to stand, subject to the plaintiff’s exception. The argument continued in the same vein, counsel asserting that the jury “could well find on the evidence that was done deliberately . . . with the hope that those witnesses would leave the court room,” and that “in spite of all the stalling they did we called Dadeneau just

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before the Court adjourned at the noon [hour].” A further objection was overruled subject to exception.

The plaintiff moved to set aside the verdict because the comment of the Court and the argument with respect to it were prejudicial, and cause for new trial. The motion was denied subject to exception.

The plaintiff’s bill of exceptions was allowed and transferred by Goodnow, C. J.

William H. Sleeper and Wayne J. Mullavey (Mr. Mullavey orally), for the plaintiff.

Hughes Burns and Donald R. Bryant (Mr. Bryant orally), for the defendant.

DUNCAN, J.

The exclusion of the accident report filed by the operator of the defendant’s bus was within the discretion of the Trial Court. The witness admitted that the contradictory statement contained in the report was made by him, and the content of the statement appeared in evidence. The report itself thus became merely cumulative, and the plaintiff was not entitled as a matter of right to have it received in evidence. Marchand v. Company, 95 N.H. 422.

The record of the examination of the expert witness with respect to the x-ray plates discloses that much of the examination related to identification of particular plates, and that it produced little testimony concerning them which would assist the jury. The record does not show the time consumed by such examination, nor the attitude either of the witness or the examiner as it proceeded. The Trial Court’s rebuke singled out no particular aspect of the examination for criticism. The entire episode took place in the presence of the jury, which was qualified to determine for itself what conduct was open to censure, and how far it was justified.

Certain of the witnesses referred to in the argument had been called by the defendant and testified that they had talked with plaintiff’s counsel during the trial and been told that their testimony would not be needed. Wilson had been summoned by the plaintiff, but was called to the stand by the defendant. Some including Dadeneau, testified in substance that although in a position to observe the operator of the bus, they had not seen the conduct with which the plaintiff charged him, and that they had so advised his counsel.

The argument made by defendant’s counsel sought to draw from these various circumstances the implication that the conduct of the

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plaintiff’s case revealed a consciousness of weakness. Similar arguments have been described as persuasive rather than probative, having a general tendency to discredit the opponent’s case as a whole, although not logically material to particular issues. Salvas v. Cantin, 85 N.H. 489, 492. See also, Doe v. Lucy, 83 N.H. 160, 162; Login v. Waisman, 82 N.H. 500, 502; Masterson v. Railway, 83 N.H. 190, 194.

“If the conduct of counsel before the jury appeared to indicate that he had no confidence in the case, and we cannot say that it did not, then it might properly be argued. . . .” Martel v. Mills, 79 N.H. 439, 442, 443. Whether the conduct of plaintiff’s counsel in this case disclosed a lack of confidence in his client’s cause, or manifested a desire to afford adverse witnesses an opportunity to leave the court room, cannot be determined from the printed page. What took place occurred in the presence of the jury and proper reference might be made to it. It has been said that “argument of this character is not to be commended.” Martel v. Mills, supra, 443. Obviously it has a tendency to divert the attention of the jury from the issues presented by the pleadings to collateral questions of the credibility and good faith of a party. While such considerations have their place in a trial, they should not be permitted unreasonably to overshadow the issues to which the verdict relates. We cannot say as a matter of law that the argument which the defendant was permitted to make in this case exceeded the limits of propriety.

By denying the plaintiff’s motion to set aside the verdict, the Trial Court found that the trial was fair. Lee v. Dow, 73 N.H. 101, 104; Kelley v. Lee, 89 N.H. 100, 105. The comment of the Court during the direct examination of the attending physician, considered upon the transcript alone, might be regarded either as a proper exercise of judicial authority to expedite the trial, or as an injudicious remark provoked by impatience. The subsequent finding that the trial was fair, presumably made when the Court was free to take a dispassionate view of it, was a finding that both the comment and the argument found reasonable warrant in the events of the trial. The record contains nothing which throws doubt upon the presumption that the motion was impartially determined, or which requires that the findings implied in its denial be vacated.

Exceptions overruled.

All concurred.

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