Genest v. Company , 75 N.H. 365 ( 1909 )

The defendants' exceptions to the procedure at the trial present no question of law. All the issues which the defendants make have been tried. The order in which they should be disposed of was to be determined by the presiding justice. It seemed to him that there should be but one trial. His decision of this question was final. Meloon v. Read, 73 N.H. 153; Owen v. Weston, 63 N.H. 599. The question whether equity has jurisdiction on the issues of release, and fraud in bringing the suit, is not raised by the case. There was no ruling on that question. The ruling was that the issues raised by the bill in equity should not be tried first, that all the issues in the bill and suit at law should be tried together, and that they should be tried by a jury. That it is the practice in this state to submit issues of fact arising in suits in equity to the determination of a jury is not denied. State v. Saunders, 66 N.H. 39; Curtice v. Dixon, 73 N.H. 393. The contention seems to be that the issues were too numerous to be intelligently considered by a jury. The presiding justice found against the defendants on this proposition, and his conclusion is not open to review here. Mooar v. Mooar, 69 N.H. 643, and authorities cited. The argument that if these issues in personal damage suits against corporations are to be disposed of by juries the defendants will always lose, does not raise a question within the jurisdiction of this court.

One duty owed to Genest as to transitory dangers was to provide suitable rules and regulations for his safety. Smith v. Railroad, 73 N.H. 325. In this case the master entrusted to a servant the duty of determining what places ought to be guarded. It could be found from the evidence that the place was left unguarded because this servant deemed a guard unnecessary. It was not left by careless oversight, but because of an error in judgment as to what was necessary to make the premises reasonably safe. The master knew, or ought to have known, that this place might be left open in the course of the work being done there. It might be found that it should have been guarded, and that the master failed to give sufficiently explicit directions on the subject. In this respect the case differs from Smith v. Railroad, 73 N.H. 325, and Hill v. Railroad, 72 N.H. 518. It is here shown what directions were given. Their sufficiency is fairly questionable. Reasonable men might conclude that the general direction to guard all dangerous openings was not so explicit and definite a rule as the circumstances of the case required. Whether the master's duty extended beyond this, is a question not necessary to be considered here.

That there was evidence of Genest's mental incapacity when he executed the release is not denied. The contention is that some of the witnesses were contradicted by their previous sworn statements, and that the testimony of others was "beyond reason." The issue thus presented was one of fact, to be decided by the jury. Failure to return the money received was not necessarily fatal to the plaintiff's case. The jury having found that no valid settlement was made, there was no contract to rescind. Hamel v. Company, 73 N.H. 386, 389.

The admission of the evidence that the witness Dessaint had been convicted of drunkenness is now sought to be sustained on several grounds. It is urged that conviction of any crime may be put in evidence to discredit the witness; but the common law of this state is that only character for veracity can be used to impeach. Sargent v. Wilson,59 N.H. 396, and cases cited.

The rule is thus stated in Wigmore on Evidence (vol. 2, s. 980): "If in a given jurisdiction general bad character is allowable for impeachment, then any offence will serve to indicate such bad character. If character for veracity only is allowable for impeachment, then only such specific offences may be used as indicate a lack of veracity-character." It is manifest the crime here shown is not of the latter class. Hoitt v. Moulton,21 N.H. 586, 592.

The other grounds upon which the ruling is sought to be upheld all involve the proposition that such evidence should be admitted as tending to show that the witness' faculties have been dulled so that he may not observe correctly or remember accurately. If it were conceded that this contention was sound, it would not affect the result here. If the fact of intoxication is relevant and competent, it must still be shown by admissible evidence. The evidence admitted at the trial consisted of testimony of a third person to the admission made by Dr. Dessaint in a criminal proceeding against him. The plaintiff now offers to supplement this by producing the record of the judgment that Dessaint was guilty of the statutory offence of drunkenness. The judgment is not evidence, as against strangers to the record, of the facts in issue between the parties to it. Harrington v. Wadsworth, 63 N.H. 400; Dorr v. Leach, 58 N.H. 18. Neither was Dessaint's admission, not made as a part of his testimony, competent evidence against this defendant. It was not offered to contradict the witness, for when the question was asked him it was excluded. The only theory upon which it could have been admitted is that it was positive evidence against this defendant of the fact Dessaint had theretofore admitted to be true. This is not the law in this jurisdiction. Carpenter v. Hatch, 64 N.H. 573, 576.

The testimony of Dessaint bore upon Genest's mental condition and upon the extent of his physical injuries. It did not relate to the issues of negligence. The verdict upon those issues may stand; but because of the error in the admission of the evidence just discussed, the verdict that Genest was incompetent to execute a release and the assessment of damages must be set aside.

Exceptions sustained in part.

All concurred.