122 A.2d 259
No. 4482.Supreme Court of New Hampshire Rockingham.Argued April 4, 1956.
Decided April 27, 1956.
Defendant’s argument to the jury concerning certain allegations of facts contained in plaintiff’s original declaration, which bore upon plaintiff’s due care, without disclosing the source thereof constituted reversible error where the declaration had been amended before trial omitting such allegations and the original declaration was neither in evidence nor were its contents admitted by the plaintiff.
ACTION OF CASE, for negligence. Trial by jury without a view resulting in a verdict for the defendant. During the trial the plaintiff excepted to the admission and exclusion of evidence, to portions of the defendant’s argument, to portions of the Court’s charge and to the failure of the Court to charge and rule as requested. After the verdict, the plaintiff excepted to the denial of his motion to set it aside as against the law and evidence. The plaintiff, after filing a declaration which alleged among other matters that the defendant was attempting with one truck to push another, filed an amendment over two years later omitting this allegation. No exceptions were briefed or argued except the one by the plaintiff to the argument of the defendant based on a discrepancy between the original and the amended declarations. Other facts appear in the opinion. Transferred by Sullivan, J.
Wyman, Starr, Booth, Wadleigh Langdell and Carl O. Randall, Jr. (Mr. Randall orally), for the plaintiff.
Wiggin, Nourie, Sundeen, Nassikas Pingree (Mr. Nourie orally), for the defendant.
BLANDIN, J.
The only issue before us is whether in the circumstances here the defendant may argue that certain inferences should be drawn because he brought out in cross-examination that facts alleged in the superseded pleadings were contrary to those upon which the plaintiff relied at the trial. The question is important because it bears on the plaintiff’s due care which depends largely
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on whether he was aware of the presence of a truck from which lumber fell causing his injury.
The difficulty with the defendant’s position here is that at no time did it appear from the record that he was reading from the original declaration filed by the plaintiff. In cross-examination counsel repeatedly asked the plaintiff if he ever told his attorney that Gaines “was attempting with his truck to push another truck in the yard?” Upon the plaintiff’s denial, he was finally asked, “So that if the writ against Mr. Gaines . . . said that at the time of the accident Mr. Gaines was attempting to push the Mack, that is just as wrong as it could be?” (Emphasis supplied.) To this the plaintiff answered, “That’s right.” In the face of this denial of the statements attributed to him, there was no occasion for plaintiff’s counsel to object or to demand the introduction of the original declaration. He might assume, in the absence of any attempt to introduce it in evidence, that defendant’s counsel was content to let the matter rest (see Charles v. McPhee, 92 N.H. 111, 114, 115), and that in accordance with our established rule, the alleged statements in the original declaration could not be used against him. Precourt v. Driscoll, 85 N.H. 280, 281; Villineuve v. Railway, 73 N.H. 250, 251, 252; 4 Wig. Ev. (3d ed.) s. 1067, pp. 61, 68. Had it been introduced, the plaintiff would have had the right to explain any contradiction or inconsistency between the original and the amended declarations. Jarnvagsstyrelsen v. Dexter Carpenter, 32 F.2d 195, 198, certiorari denied, 280 U.S. 579. It is true that in this state generally speaking no rigid formality is demanded in the introduction of evidence (cf. 4 Wig. Ev. (3d ed.) s. 1067, p. 68), yet we believe in the circumstances here some reasonably unequivocal form of identification should have been required. However, it was not, and as a result, counsel based his argument on a writing which was neither in evidence nor were its contents admitted by the witness. Cf. Rau v. Stores, 97 N.H. 490, 494. This was an error and the order must be
New trial.
All concurred.
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