Hughes v. Cavanaugh , 79 N.H. 362 ( 1920 )

If the report of the expert was excluded because it was hearsay and not because it was incompetent, the plaintiff did not violate the rule laid down in Batchelder v. Railway, 72 N.H. 329, when he asked the question excepted to, for since the witness had testified that in his opinion the plaintiff's lameness was the result of disease, it was permissible for counsel to show what investigation the witness made in order to qualify himself to give expert testimony; and that appears to be what counsel was doing when he asked these questions.

Plaintiff's counsel, in commenting on a witness called by the defendant, said in substance, they could prove anything by him; he told one story when they put him on the stand in the morning, and another when they recalled him in the afternoon; "that was the time they fixed him, and he was easy to fix; I say from the evidence he was fixed by someone." The question raised by the exception to the statement is whether the evidence warranted it. The defendant does not contend it cannot be found from the evidence that the witness lied, but that it cannot be found anyone had "fixed" him.

Now it is common knowledge that men do not act without a reason. In fact a reason is as essential to human activity as gravity to the stability of matter.

If, therefore, the witness lied the second time the defendant called him to the stand, he had a reason for doing it. Since he lied to aid the defendant it may be found that the reason he lied was because the defendant or someone acting for him or in his interest asked him to testify as he did.

Since this inference is one which may be drawn from the evidence, it cannot be said that counsel was not acting within his rights when he asked the jury to draw it, for the question for the court is whether the inference is one that may, not whether it is the one which should be drawn from the evidence.

Exception overruled.

All concurred.