Beckley v. Alexander

• Decision Date: 05 May 1914
• Citation: 77 N.H. 255,90 A. 878
• Court: New Hampshire Supreme Court
• Parties: BECKLEY v. ALEXANDER.

90 A. 878

77 N.H. 255

BECKLEY

v. ALEXANDER.

Supreme Court of New Hampshire. Rockingham.

May 5, 1914.

Transferred from Superior Court, Rockingham County; Pike, Chief Judge.

Action for negligence by George H. Beckley against Harrison Alexander, transferred from the superior court, after a trial by jury and a verdict for defendant, on plaintiff's exceptions. Exceptions overruled.

The plaintiff was injured on November 2, 1912, in consequence of a collision between the carriage in which he was riding and the defendant's automobile driven by his chauffeur. The jury had a view of the premises where the accident occurred. Upon their return the plaintiff moved that the jury be discharged because of a conversation between the defendant and one of his counsel and the foreman of the jury, while they were riding in a smoking car on the way to the view. The court thereupon inquired into the matter, taking the statements of the defendant's counsel and the foreman, and found that the defendant and his counsel did not know they were talking to a juryman, that the juryman did not know they were connected with the ease on trial, that the case was not mentioned in the conversation, and that the trial was not rendered unfair. The court denied the plaintiff's motion. To the conclusion of the court upon this matter the plaintiff excepted.

Just before the accident the plaintiff called upon the defendant in regard to a note and mortgage which the latter held against the former. Subject to exception, the defendant was asked what the talk was between them, and testified that the plaintiff said he could not take up the note and did not know what he could do. In order to rebut the plaintiffs testimony on the question of damage that his earning capacity was large, the defendant was permitted, subject to exception, to introduce evidence that the plaintiff had not paid his taxes on his homestead for several years.

The plaintiff offered to show that one Barker had experimented with his automobile at the place of the accident, and could stop his machine running at a given speed in a shorter distance than the defendant's chauffeur did. The evidence was excluded, upon the ground that the conditions at the time of the experiment were not the same as at the time of the accident, and the plaintiff excepted. He also excepted to remarks made by the defendant's counsel in his argument to the jury, and to the submission by the court to the jury of specific questions to which they were required to return answers.

John O'Neill, of Manchester, for plaintiff. John G. Crawford, of Derry, and Page, Bartlett & Mitchell and Ernest L. Guptill, all of Portsmouth, for defendant.

WALKER, J. 1. Upon the plaintiffs motion to discharge the jury on account of alleged improper conduct on the part of the defendant and the foreman of the jury while they were going to take a view, an investigation was had by the presiding justice, and he found as a fact that the trial was not rendered unfair by what occurred. The plaintiff's exception to this finding presents the question whether it conclusively appears that the trial was an unfair one on account of the conversation between the juryman and the defendant and his counsel. The plaintiff took no exception to the method of procedure adopted by the court in its investigation, and cannot now complain of it; nor can he take advantage of the fact that the court did not interrogate witnesses whom the plaintiff might have offered, but did not. The examination conducted by the court was apparently satisfactory to the plaintiff until the court's conclusion was announced, to which he took an exception. The facts, therefore, that the defendant and his counsel did not know they were talking with a juryman, that the juryman did not know they were interested in the case, and that the conversation had no reference whatever to the case, but consisted of general talk upon other subjects, fully authorized the court in finding that all the parties acted in good faith and that the trial was not rendered unfair in consequence of the conversation. The opposite conclusion seems to have little, if anything, to support it. The testimony of the juryman as to what was said was not only competent, but sufficient to justify the finding. Maxfield v. Pittsfield, 67 N. H. 104, 36 Atl. 609. In State v. Danforth, 73 N. H. 215, 221, 60 Atl. 839, 842 (111 Am. St. Rep. 600, 6 Ann. Cas. 557) it is said:

"The ruling of the court refusing to hear evidence as to the alleged misconduct of the state's counsel, upon the ground that the act (if it occurred) was not prejudicial to the respondent, if understood as a ruling of law, was without error; while if the holding were...