Hansen v. Grand Trunk Railway Co.

102 A. 625, 78 N.H. 518, 1917 N.H. LEXIS 59

• Court: Supreme Court of New Hampshire
• Decided: December 4, 1917
• Status: Published

Opinions

Walker, J.

The plaintiff testified without objection from the defendant that while she was waiting at Port Hope she wrote a telegram to her sister in Berlin in the Norwegian language and at the request of the operator she translated it into English as follows: “The Grand Trunk conductor has put me on a wrong train. ” As the original telegram was not produced (and according to the defendant’s evidence it had been destroyed) one of the plaintiff’s witnesses subsequently produced the telegram received by her sister in Berlin, and, subject to the defendant’s exception, it was admitted in evidence. It contained the phrase, “Time 8:03 P. M.,” and then read as follows: “From Port Hope, Quebec, July 26, 1913.” “Berlin, New Hampshire, July 26, 1913. To Mrs. Carl J. J. Johnson, Box 23, Berlin Mills, N. H. Dear Sister: Grand Trunk Conductor put me on wrong train. Jennie.” If it is conceded that the statement in the telegram could not be admitted against objection as evidence of its truth, or as a declaration under the res gestae doctrine, it does not follow that the telegram itself was inadmissible for any purpose. It often happens that documentary evidence which is relevant to two subjects or issues on trial is admissible in proof of one and not admissible in proof of the other. The fact of its inadmissibility for one purpose does not necessitate its general exclusion for a purpose for which it is legally admissible. Lemire v. Pilawski, 77 N. H. 116; Challis v. Lake, 71 N. H. 90, 94; Haskell v. Railway, 73 N. H. 587; State v. Kennard, 74 N. H. 76. The presumption is that the court in its charge limited the use to be made of the evidence to the point to which it was legally applicable. Lemire v. Pilawski, supra.

It was important for the plaintiff to show that she was at Port Hope for several hours on the 26th day of July, during which time she was in a highly nervous condition, on account of her enforced delay, according- to her testimony, and it cannot be doubted that her telegram, which was accepted by the telegraph company and transmitted to her sister in Berlin, was evidence that she was in Port Hope at that time. If the operator was not the defendant’s agent for the purpose of transmitting private telegrams of its passengers, his act in sending the telegram was evidence that it was given to him on the day of its date and that the sender was present. Hence the telegram was admissible evidence for this purpose, if for no other, and the general exception to its admission must be overruled..

The principal contention relates to the law governing the liability of the defendant for the injuries suffered by the plaintiff according to her testimony. It is conceded that this question must be determined by the prevailing law of the Province of Ontario, where the facts occurred which, it is claimed, constituted a breach of duty by the defendant to the plaintiff. Evidence by experts was introduced by both parties upon the question, whether under the law of the Province of Ontario a recovery could be had for mental suffering and anxiety subsequently resulting in severe physical suffering and disease, in the absence of any physical injury directly inflicted by the alleged negligent -act of the defendant. As specifically applied to the case on trial, the question was, whether the plaintiff could recover for the nervous excitement and anxiety due to the conductor’s act in'misdirecting her and in causing her to be detained for several hours in the station at Port Hope before she could resume her journey, where the nervous shock produced excessive menstrual flowing, which subsequently made it necessary for her to submit to a surgical operation for the removal of the ovaries. The expert for the plaintiff testified that under such a state of facts the plaintiff would be entitled to recover, according to his opinion, under the law of Ontario; while the expert for the defendant testified that in his opinion the law of that province would not permit a recovery. Opinions pro and con were also expressed by the experts about the right of recovery under the statutory law of the province. The issue thus presented was one of fact for the determination of the court. It did not call upon him to rule on the question as a matter of law independently of the testimony of the experts, but considering the reasons adduced for their respective views to find which view was probably correct, and to instruct the jury accordingly. The defendant excepted to the charge of the court in which it was stated that if the jury should find the plaintiff’s condition was the natural, probable, actual result of what occurred at Port Hope, or was due to the misdirection of the plaintiff, she may recover. The defendant insisted that the court should have ruled in accordance with its understanding of the law of Ontario that the damages claimed are too remote. This ruling of the court was in accordance with its finding from the evidence that the law of that province is that the plaintiff was entitled to recover if the jury should find that her suffering was the natural and probable result of the defendant’s negligent act; in other words, that the question of remoteness in this case was for the jury to determine. This ruling was supported by the testimony of the plaintiff’s expert, was presumptively based upon it, and is not now open to revision and reversal.

Arguments addressed to this court upon the exception to the court’s charge in support of defendant’s contention that the question is one of law, in the same sense it would have been if the cause of action had arisen in this jurisdiction, are based upon a misconception of the nature of the issue involved, which is whether the evidence supports the conclusion that, under the law of Ontario, the plaintiff, upon her evidence, might be entitled to a verdict. That there was such evidence is not open to reasonable doubt, as suggested above; and the finding is conclusive. “The existence or nonexistence of a foreign law is a question of fact, and the law of Pennsylvania having been found upon competent evidence to be as claimed by the plaintiff, that finding is conclusive.” Kennard v. Kennard, 63 N. H. 303, 308. In Jenne v. Harrisville, 63 N. H. 405, it was held in accordance with numerous authorities that, “Foreign unwritten law, including the prevailing construction of a foreign statute, may be proved by competent witnesses, and is a matter of fact determinable at the trial term. ” While it might seem upon an examination of relevant authorities bearing upon the question, that the defendant’s theory of the law is correct, it would not follow that that view must be adopted and the finding of the superior court be set aside for that reason. It can only be set aside under such circumstances when it is unsupported by the evidence.

Drew, Shurtleff, Morris & Oakes and Rich & Marble {Mr. Morris ■orally), for the motion. Jesse F. Libby and Matthew J. Ryan {Mr. Libby orally), opposed.

Exceptions overruled: judgment on the verdict.