Opinion
Decided December 2, 1930.
In a case where the driver of an automobile admitted that his speed was excessive and gave as his explanation thereof that he was insured, a general exception to the reference to insurance was unavailing. Semble that the admission of excessive speed and the reference to insurance were too closely connected to be separated by the trial justice even upon a special request therefor.
CASE, for negligence in which the plaintiff seeks to recover for personal injuries received when he was struck in a public highway by an automobile driven by the defendant. Trial by jury and verdict for the plaintiff.
Arsene Gregoire, the plaintiff's father, being called as a witness in his behalf, testified that after the accident the defendant took him to the place where it occurred and showed him some marks in the road. The direct examination then continued as follows: "Q. Did you ask Mr. Allard how far he was when he saw you[r] boys? A. Yes, sir, I did. Q. What did he say? A. He said he was about three hundred feet. Q. What did you say to Mr. Allard when he told you he saw your boys 300 feet ahead of him? A. I asked him why he didn't stop. Q. What did he say? A. He told me he couldn't. Q. Why couldn't he? A. He told me his brakes were not properly working and that he had lost his head and stepped on the accelerator and struck the boy. Q. What did you say to him then? A. Why, did you go so fast with four wheel brakes? Q. What did Mr. Allard say to that? A. He said, never mind, I am insured with an insurance company — Mr. Doyle: Wait a moment, we object and except. Court: All right, it may stand. A. He said, I am insured with an insurance company and they will pay all bills if I hit anybody. Mr. Doyle: All that is in subject to my exception." From later testimony of the same witness it might be found that the words reported by the stenographer as "four wheel brakes" should read "poor brakes." Defendant's exceptions to the admission of the foregoing testimony were transferred by Sawyer, C. J.
John M. Stark and David F. Dudley (Mr. Dudley orally), for the plaintiff.
Doyle Doyle (Mr. Paul J. Doyle orally), for the defendant.
In accordance with the principles which were examined at length in McCurdy v. Flibotte, 83 N.H. 143, and which were recognized and applied in Herschensohn v. Weisman, 80 N.H. 557 and Lemire v. Pilawski, 77 N.H. 116, defendant's exceptions must be overruled. The defendant's answer to the question of the witness, in either of the forms which were findable upon the evidence, clearly imported an admission of excessive speed. It is difficult to see how this admission could, under the circumstances, have been separated from the reference to insurance, but however this may be, it is plain that the trial court was not asked to make the attempt and defendant's general exceptions are therefore unavailing. McCurdy v. Flibotte, supra.
Judgment on the verdict.
All concurred.