Lemire v. Pilawski

88 A. 702, 77 N.H. 116, 1913 N.H. LEXIS 33

• Court: Supreme Court of New Hampshire
• Decided: October 7, 1913
• Status: Published

Opinion

Parsons, C. J.

Whether the fact that the defendant carried insurance against liability for negligence is, or not, relevant to his care in any particular instance is a question not presented. The evidence objected to was admitted as a part of a conversation acknowledging liability, but for no other purpose. In the absence of exception to the charge, it must be assumed that the effect of the evidence was properly limited in the instructions to the jury and that they followed the instructions. Mitchell v. Railroad, 68 N. H. 96, 117. If the evidence objected to was relevant and competent upon the issue upon which it was admitted, its admission is not error because it might be considered by the jury, in the absence of instructions or in violation of their duty, upon an issue upon which it was incompetent. Conn. River Power Co. v. Dickinson, 75 N. H. 353.

The facts stated by the defendant in the conversation tended to show liability upon his part. If the defendant’s servants carelessly left the horse unattended in the street while engaged in his business, the defendant was liable for the resulting injury. His admission of those facts, if he made it, was practically an admission of liability; and an important issue in the case was whether in fact he made such statement without qualification. Parties do not usually defend lawsuits in which their liability is conceded by them in advance. Anything further said by the defendant, tending to show why he was contesting a liability the evidence proved he admitted, tended to remove the improbability which might be urged against the credibility of the witnesses. If the defendant went further and stated some reason for which he considered himself not liable, such fact, whether constituting a defence in law or not, would be admissible as rendering probable the testimony given. That the defendant said he could do nothing because others had assumed the liability and he had put the matter in their hands was a fact tending to establish the verity of the testimony. The whole story might reasonably be true, while the half, under all the circumstances, it could be argued was so unreasonable as not to be entitled to credence. The statement objected to was therefore an essential part of an admission of liability claimed to have been made by what the defendant said. So much of the conversation as related to the issue of the defendant’s admission was competent. 3 Wig. Ev., s. 2094. As it does not appear the evidence objected to was used for an improper purpose, the verdict cannot be disturbed.

Exception overruled.

All concurred.