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Wilson v. Custer

Decided: September 18, 1942.

HARDING O. WILSON, BY HIS NEXT FRIEND, LOUIS W. WILSON, AND LOUIS W. WILSON, PLAINTIFFS-RESPONDENTS,
v.
CHARLES J. CUSTER, DEFENDANT-APPELLANT; EDWARD ANDERSON, BY HIS NEXT FRIEND, SAMUEL ANDERSON, AND SAMUEL ANDERSON, PLAINTIFFS-RESPONDENTS, V. CHARLES J. CUSTER, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the plaintiffs-respondents, Quinn & Doremus (John J. Quinn, of counsel).

For the defendant-appellant, Lester C. Leonard.

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. The infant plaintiffs, Harding O. Wilson and Edward Anderson, suffered personal injuries as a result of the alleged negligent operation of an automobile by the defendant, Charles J. Custer. Suit to recover for such injuries was instituted by their respective fathers for them, as next friends, and by the fathers, individually, for expenses and loss of services occasioned thereby. The jury

returned a verdict in favor of each infant plaintiff and also for their respective fathers. A rule to show cause was allowed why the amount of the verdict in each case should not be reduced and in each instance it was reduced and judgment entered for the amount of the several reduced verdicts.

In the appellant's brief three grounds of appeal are argued for a reversal of the judgments. The first challenges a portion of the court's charge to the jury; the second alleges that the trial judge abused his discretion in discharging the rule to show cause instead of granting a new trial in view of the fact that the court thought the verdicts were the result of "passion, prejudice or mistake;" and the third is that the trial court abused its discretion in "retaining and reducing two verdicts awarded to unidentified persons."

That part of the trial court's charge which is challenged as error is as follows:

"You can draw from it the inference that Harding O. Wilson memorized a story which is false in all its essential details. You can draw from it an inference that Harding O. Wilson, by repeating his story word for word is telling the truth. It is for you members of the jury to decide and determine what inference shall be drawn from that fact."

For a proper understanding of the point made by the appellant it is sufficient to say that the infant plaintiff Wilson in telling the detail of the facts and circumstances of the accident to the court and jury, recited it three times almost word for word -- once on direct examination and twice on cross-examination. Counsel for the defendant, in cross-examining this witness, obviously recognized that the plaintiff's recital of the facts was each time repeated verbatim. Obviously he believes that the story was rehearsed and learned by heart. But this circumstance was a matter for the jury and it was for them to say what credence they thought it ought to have. We do not perceive how the instruction of the court in this particular can be said to be erroneous. No authority that is at all apt is cited to support counsel's argument that the learned trial judge erred in what he said to the jury on the matter. The appellant concedes that diligent

search has revealed "no reported authority specifically dealing with memorized testimony." We must assume that the incident of the word by word repetition on the part of Wilson was fully argued before the jury and we are in entire accord with the trial judge that the matter was something for the jury to consider. It was for the jury to appraise the witness' credibility, i.e., to determine whether the witness had knowledge of what he told and whether he truthfully told what he knew. If the appellant had ...


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