Opinion
No. 4734.
Argued May 6, 1959.
Decided July 10, 1959.
1. Where all the parties to declaratory judgment proceedings through their counsel at pre-trial conference stipulated that a special verdict should be submitted to the jury in the precise form subsequently given in the Court's instructions, there was no abuse of discretion in the Trial Court's finding that modification of the pre-trial order was not required under Rules of the Superior Court (Rule 48).
2. The admission of testimony of a police officer concerning a statement made to him by the alleged operator of a motor vehicle as to who was in fact operating the vehicle at the time of the accident did not constitute error where opposing counsel had sought to impeach her testimony on cross-examination on the basis of her prior deposition and in argument to the jury sought to draw inference of a change in the witness' testimony.
PETITION, for declaratory judgment to determine the coverage of a certain automobile liability policy issued by the Travelers Indemnity Company to defendant Everett S. Brusseau.
On February 13, 1955, shortly after midnight, Alice M. Hall and Everett S. Brusseau were riding in a motor vehicle owned by Ella Hall, mother of Alice, when the vehicle left the highway in Auburn, colliding with various objects and resulting in the death of Brusseau and injuries to Alice. The Hall vehicle was insured against liability in the Farm Bureau Mutual Insurance Company and was being operated with the consent of the owner Ella Hall.
Civil actions were brought against the estate of Brusseau by Alice Hall to recover for personal injuries and by Ella to recover for property damage to her motor vehicle. In each of these actions it is alleged that Brusseau was the operator of the Hall motor vehicle. The estate of Brusseau brought an action against Alice for his wrongful death alleging that she was the operator.
Dispute having arisen as to who was operating the motor vehicle at the time of the accident, Shirley Brusseau, administratrix of the estate of Everett S. Brusseau, filed a motion to frame issues of fact for a jury trial and requested the following issue be submitted to the jury:
"Was Everett S. Brusseau or Alice M. Hall the operator of the motor vehicle involved in an accident on February 13, 1955, in the Town of Auburn, in which the said Everett S. Brusseau was killed, and the said Alice M. Hall was injured?"
The Farm Bureau Mutual Insurance Company excepted to the failure of the Court to submit to the jury a special verdict in the following form and to the failure of the Court to instruct the jury in accordance with its request:
"If you find that the evidence is evenly balanced as to whether Alice M. Hall or Everett S. Brusseau was operating the vehicle in question at the time of the accident and are unanimous in this finding, then neither the Brusseau Estate nor Hall will have sustained their respective burdens of proof, and in such event you will return a verdict as follows: `The jury is unable to determine who was the operator of the motor vehicle involved in the accident on February 13, 1955 in the Town of Auburn in which Everett S. Brusseau was killed and Alice M. Hall was injured.' A special verdict blank to cover this eventuality will be given to you by the Clerk when you retire."
Trial by jury after a view resulted in a special finding that Brusseau was the operator of the motor vehicle at the time of the accident. The exceptions of the parties to certain evidentiary rulings made during the trial and to the Court's charge were reserved and transferred by Leahy, C.J.
Booth, Wadleigh, Langdell, Starr Peters (Mr. Booth orally), for the plaintiffs.
Upton, Sanders Upton (Mr. Sanders orally), for defendant Farm Bureau Mutual Insurance Company.
Sleeper Mullavey and Edward E. Williams (Mr. Williams orally), for defendants Ella E. Hall and Alice M. Hall.
McLane, Carleton, Graf, Greene Brown and David L. Nixon (Mr. Nixon orally), for defendant Shirley E. Brusseau.
At a pre-trial conference at which all parties were represented by counsel, it was stipulated, among other things, that a special verdict should be submitted to the jury in the precise form subsequently given in the Court's instructions. Rule 48 of the Superior Court Rules ( 99 N.H. 615) provides that the Court shall make an order which recites the action taken at a pre-trial conference, the agreements of the parties which limit the trial issues "and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifested injustice."
On the record before us we see no abuse of discretion in the Court's finding that modification of the order was not required under Rule 48. The exception is therefore overruled.
Counsel for the Travelers Indemnity Company and Brusseau, adm'x, contend it was error to admit the testimony of chief Davis of Auburn concerning a conversation he had with Alice Hall "after she got out of the hospital and when her mind was free and clear" to the effect that on the night in question Brusseau was driving the motor vehicle. Counsel argue that a prior consistent statement is inadmissible unless the witness has been impeached and that such testimony is self-serving and hearsay. However, counsel sought in cross-examination to impeach Alice's testimony on the basis of her prior deposition and in argument sought to draw the inference of a change in her position and that she was less than candid. Twardosky v. Company, 95 N.H. 279, 284; see State v. Slocinski, 89 N.H. 262. We believe the evidence of chief Davis was competent.
Exceptions overruled.
All concurred.