Rau v. First National Stores , 97 N.H. 490 ( 1952 )

Kenison, C. J.

After suit had been instituted and Gilleran’s employment with the defendant terminated, he gave a statement to plaintiff’s counsel in which he stated that he tried to keep people out of the window display but was not successful, that the gate was open part of the time and that he had told Berberean, the manager of the grocery department, that “We were having trouble with customers going through the gate to get beverages and that people will get injured by falling down the stairway.” Berberean “would say” ‘all right, I’ll take care of it,’ but he didn’t do it.” Subsequent to the accident Gilleran was transferred to another store of the defendant where he worked only three days and never returned. There was evidence that his work was unsatisfactory at the Concord store and he was relieved of his duties as manager for that reason. He was finally interviewed by one of the defendant’s counsel, and stated that he had no use for the defendant and hoped that they “would get stuck good and plenty.” After these interviews Gilleran deceased which raised the question whether the statement could be introduced as a statement against interest. It was excluded and the plaintiff assigns error in this exclusion.

“The declarations of a person, if made against his interest, are admissible under a very ancient exception to the rule against hearsay evidence. 3 Wig. Ev. (2d ed.) s. 1455. ‘The Exception presupposes, like most of the others, first, a Necessity for resorting to hearsay, . . . i. e. the death of the declarant, or some other condition rendering him unavailable for testimony in court; and, secondly, a Circumstantial Guarantee of Trustworthiness. . . in this instance, the circumstance that the fact stated, being against the declarant’s interest, is not likely to have been stated untruthfully.’ Id.” Tuftonboro v. Willard, 89 N. H. 253, 258.

The Trial Court was of the opinion that Gilleran “was attempting to protect himself rather than admitting any fault,” and considering the circumstances under which it was made refused to accept it.

Probably the leading case admitting such a statement is Halvorsen v. Moon & Kerr Lumber Co., 87 Minn. 18. There a statement by an employee admitting his negligence for a fire which started in a room over which he had charge was allowed. The court held that this “furnished the basis of a pecuniary claim against him on the ground of his negligence.” Id., 22. This view was followed in Windorski v. Doyle, 219 Minn. 402, where the defendant was held liable on the basis of admissions made by a sole employee through whom the claimed liability arose.

Merely because Gilleran may have been a dissatisfied employee when he gave his statements and interviews and therefore had a motive to misrepresent is not of itself sufficient grounds to exclude this evidence after his death. It is not separate and additional requirement of a statement against interest that it be free from bias and prejudice. V Wig. Ev. (3rd ed.) s. 1464. This affects the credibility of the evidence but does not destroy its competency providing the statement is actually against the interest of the declarant.

A statement against interest is admitted as an exception to the hearsay rule partly due to necessity because the witness is dead or otherwise unavailable and partly because of “the principle of experience that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect.” V Wig. Ev. (3rd ed.) s. 1457. Gilleran’s statement does not in words or by implication admit fault or negligence on his part, and it does not indicate any awareness on his part that he would have to respond in damages for the decedent’s death. We find it difficult to believe that an employee of a nationwide concern would expect that he would be liable for damages for a non-intentional tort which he says was caused by the neglect of another. In any event it does not meet the following necessary test: “the interest injured or the burden imposed by the fact stated should be one so palpable and positive that it would naturally have been present in the declarant’s mind.” V Wig. Ev. (3rd ed.), s. 1461. The Trial Court’s exclusion of the Gilleran statement as a statement against interest was proper. Although additional reasons may have been given for the exclusion by the Trial Court, this does not affect the correctness of his ruling excluding the .evidence.

An attorney for the defendant testified concerning his interview with Gilleran after looking at a memorandum he had prepared for the date of the interview. Plaintiff asked to see the memorandum. It was examined by the Court who denied the request because it was a confidential report from one man in the law office to another and because it contained “other matters in the case that haven’t been touched on.” This involves a discretionary matter of procedure and no abuse of discretion is apparent.

During the cross-examination of one of plaintiff’s witnesses, he was asked if he had not made a contradictory statement. The witness replied that he might have and that he believed that he did. Objection was made to the introduction of the contents of the written statement in this manner. Since the witness admitted the contradictory statement, the written statement itself was not required to be put in evidence. Precourt v. Driscoll, 85 N. H. 280.

An executive of the defendant was allowed to express an opinion that in the area where the accident occurred a customer would expect that it was not an area for use by the public. The admissibility of opinion evidence in this state has a broader scope than it does in other jurisdictions. Lavoie v. Brockelman Bros. Inc., 315 Mass. 673. If the opinion expressed will be of aid to the jury and the witness is qualified to speak, it “is admissible even though it bears directly on a main issue.” Christie v. Company, 87 N. H. 236, 239; Weiss v. Wasserman, 91 N. H. 164, 166.

The Court instructed the jury that if the plaintiff entered an area forbidden to him, “if you so find,” which caused his injury, he could not recover. Upon objection that the instruction invaded the province of the jury, the Court gave a supplemental instruction stating that the court was not “making any findings that there were any areas forbidden or not; that is your province.” This did not give undue emphasis to the area of the place of the accident as a forbidden one. The amplifying instruction left the matter to the jury to decide and did not invade their province in the matter.

During a portion of the charge to the jury it was stated that the fact that some people went in the area and were immediately ejected “does not of itself create an invitation to others to go through.” Objection was made to this since the fact that customers were using the area was evidence of invitation, whether or not some were requested to leave. True v. Creamery, 72 N. H. 154; Colby v. Treisman, 85 N. H. 19. The following supplementary instruction, which in our opinion cured the objection made, was then given to the jury. “You were told about the fact that some people were in there and were ej ected, that that act alone was not to be considered as an invitation. It was the intention of the Court to inform you that the mere fact that people went in there, and there was some evidence they were ejected, that fact alone, that they were in there, you cannot just find that to be proof of invitation, but you certainly cannot disregard it in trying to discover whether it should be anticipated that people would go in there. You will give full consideration to all the circumstances in trying to decide this case.”

The motions for nonsuit and a directed verdict wore properly denied. There was evidence that the gate near the stairs was open at times, that the sign, “For employees only” could not be seen at other times and that customers had used the-area. The plaintiff was in the store as a business visitor. Monier v. Belzil, 97 N. H. 176. Whether the invitation would be understood to extend to the area of the accident depended on the circumstances at that time. Holmes v. Stores, 95 N. H. 478. On this record it cannot be said as a matter of law that the plaintiff was a trespasser who was encountering a perfectly obvious danger. Restatement, Torts, s. 343, comment b. There was other evidence in the case, which the defendant says was inadequate and flimsy, concerning inadequate lighting and refuse on the'floor but it was evidence that the jury were entitled to consider so that the Court was justified in not entering a nonsuit or a directed verdict.

Judgment on the verdict.

Duncan, J., dissented in part: the others concurred.