| N.H. | Nov 1, 1927
I. Regarding the first exception, it is said in Piechuck v. Magusiak,
The evidence containing reference to insurance may be either direct or circumstantial. A declaration in express admission of liability or in terms of equivalent import has testimonial character of the same nature as direct evidence and is to be treated as such. It is admissible at the opponent's option as the equivalent of testimony of direct bearing on the issue to which it relates. The greater prejudice rule may not be invoked as to such evidence, while it may be when the reference to insurance is made in connection with conduct or a statement tending to indicate liability without direct admission of it. Examples of admissions as direct evidence are found in Lemire v. Pilawski,
But although the greater prejudice rule may not be applied when the evidence is of a direct admission of liability, it may be practicable to exclude the reference to insurance even then, and it should be excluded if it may be without substantially impairing or affecting the natural force of the admission. The reference to insurance may be so incidental and separable from the rest of the statement as to make its exclusion reasonable and proper. While ordinarily the whole of an admission is to be taken and construed together (Moore v. Ross, *145
If a declarant acknowledges liability and goes on to say that he is insured, a limitation admitting only the acknowledgment would seem generally to be practicable. Since the reference to insurance is to be avoided if it may be, consideration should be given to the reasonableness of receiving only the essential part of the statement. While it is true that an instruction to the jury not to treat the fact of insurance as evidence of liability is presumably obeyed, the presumption is by no means conclusive, and the exclusion of the reference to insurance would seem to be ordinarily preferable to the admission in its entirety of the statement made. No strict rule for the exercise of the trial court's discretion in such respect can be laid down beyond the general rule of the legal policy to exclude evidence of insurance whenever "it is practicable to do so."
In the case here the declarant's statement was received in full. Logically the reference to insurance tended to weaken the force of the words importing liability. It tended to modify the admission to the declarant's benefit as making the entire statement an expression of indifference about liability rather than of its acknowledgment. But the court was not asked to consider the admissibility in part of the statement and exclusion of the remainder, and the objection was to the admission of any part of the statement because of its reference to insurance. If parties wish consideration of such partial admission of the declaratory statement, they should raise it and bring it to the court's attention. Hence the question whether the court's discretion in admitting the statement in full rather than only in part was properly exercised, is not here presented. The discretion was not invoked, and the only question was whether the evidence should be received in full or not at all.
On the point that the statement made may not be fairly construed as an admission of fault, it is argued that other meanings are at least as probable and that a finding that the words used tended to import an acknowledgment of liability is at best conjectural. Without other considerations, the declarant's testimony in denial of making the statement warranted a finding of the meaning of the statement as an admission, since such denial if found to be false clearly tended to show recognition of the harmful character of the statement. If *146 the meaning of the statement was incapable of ascertainment when the court admitted it, the disbelieved denial of making it supplied evidence from which with the other evidence its meaning as an admission could be found. Hence if the evidence was not competent as an admission when introduced, it became so in the progress of the trial.
If in the passenger's action the evidence was not competent as an admission (Burnham v. Sweatt,
II. As to the other exception, without considering the question whether in impeaching credibility evidence of a judicial conviction for reckless driving should be excluded in cross-examination as not relating to a crime of dishonesty (Genest v. Company,
Exceptions overruled.
All concurred. *147