Conn. River Power Co. v. Dickinson

Citation75 N.H. 353,74 A. 585
PartiesCONNECTICUT RIVER POWER CO. v. DICKINSON et al.
Decision Date02 November 1909
CourtSupreme Court of New Hampshire

Transferred from Superior Court, Cheshire County; Chamberlin, Judge.

Petition by the Connecticut River Power Company against La Fell Dickinson and another for the assessment of damages for land damaged under the flowage act. Transferred from the superior court on defendant's exceptions. Overruled.

La Fell Dickinson, one of the defendants, was called by the plaintiffs as an expert upon the subject of land values. Having testified that the defendants had dealt largely in lands for some 20 years, he was allowed to testify, subject to exception, that, with one exception, he knew of no one in the vicinity who was a larger landowner. Having stated what in his opinion the land in question was worth under existing conditions, the witness was asked by the plaintiffs' counsel whether in making his estimate of value he took into account the fact that 50 per cent. is to be added to the verdict of the jury by the court. The defendants excepted to the asking of the question, and the court ruled it out, and specially instructed the jury not to consider the Information contained in the question. The plaintiffs also excepted to the ruling of the court. In the preceding trial of a similar petition for the assessment of damages for land taken by the plaintiffs, their counsel, who was the same as in this case, offered to put into the case the flowage act, and the court excluded it. It is found as a fact that counsel for the plaintiffs in asking the above question knew and understood that it would give the jury information that fifty per cent. would be added to their award of damages, and that he had no other real purpose in creating the situation and in asking the question than to convey such Information to the jury, believing that the court would exclude such information. Counsel claimed he had the right to ask the question. In his argument to the jury the plaintiffs' counsel referred to a fact in evidence that of the many pieces of land which the company flowed they acquired from the owners all but three, and then said: "And it is an inference which you gentlemen are not only allowed to draw, but that you will draw from that fact, that this—whether or not this corporation has not been undertaking to deal fairly and justly with the landowners upon that river." The defendants excepted to this remark, and the court instructed the jury not to consider it.

Charles H. Hersey, Streeter & Hollis, and Harold E. Whitney, for plaintiffs.

Cain & Benton and Oliver E. Branch, for defendants.

WALKER, J. No error was committed in allowing the witness Dickinson to be asked whether he and his estate have acquired lands so that they are the largest landowners in the vicinity. Although he was one of the defendants, the plaintiff had the right to call him as a witness and subject him to cross-examination upon the issue involved. Pub. St. 1901, c. 224, § 15. As he had testified that they had dealt largely in lands for many years, it was competent for him to testify as to the extent of his ownership of such property, because that fact would naturally tend to show what his qualifications were, derived from experience, to form an opinion of the value of the real estate in question. The question was competent.

It is insisted that serious error was committed by counsel for the plaintiff by including in his question to the witness the suggestion or information that the statute authorized the court to add 50 per cent. to the amount of the verdict. This occurred upon cross-examination, after the witness had testified that in his opinion under existing conditions the land was worth $20,000. The alleged prejudicial error consisted in stating to the jury the statutory provision, which it is claimed would induce the jury to estimate the value of the land at a less sum than they otherwise would. This claim is fundamentally based upon the proposition that the fairness of the trial required the exclusion of that fact from the jury. But they were explicitly instructed not to consider it. The question is whether a verdict must be set aside when the prevailing party has included in a question to a witness a suggestion of a prejudicial fact which counsel has reason to believe the court will exclude, and which the court does exclude and instructs the jury not to consider.

The defendants contend that counsel for the plaintiff violated what has been termed "the law of the trial," and Batchelder v. Railway, 72 N. H. 329, 56 Atl. 752, is cited in support of the contention. In that case, after a conference between the court and counsel in the absence of the jury as to the admissibility of certain evidence offered by the plaintiff and a distinct refusal by the court to admit it, the plaintiff's counsel, upon the resumption of the trial before the jury, asked several questions of a witness which indirectly conveyed to the jury the information which the court had clearly declined to admit in evidence. Although these questions were excluded, it was held that they had a prejudicial effect upon the jury and that they were asked in plain violation of the ruling of the court, which was the "law of the trial." The verdict returned for the plaintiff was therefore set aside. It is apparent, however, that that case is not an authority for a similar holding in this case. The court had made no ruling in this case excluding the proffered evidence, and consequently no "law of the trial" upon the subject had been established. The fact that in the preceding trial for the assessment of damages for other land taken by the plaintiff the court had refused to allow the plaintiff's counsel to read the flowage act to the jury was not only not a ruling in this case, but the question did not arise in the same way. While the court might believe that the statute should not be put in evidence in the first case, it does not follow that the question asked of the witness Dickinson in the second case was improper according to the decision in Batchelder v. Railway. Indeed, it is not entirely clear that if the ruling excluding the statute had been made in this case, and subsequently the question objected to had been put, "the law of the trial" would have been violated. But, however that might be, it would be unreasonable to hold that a ruling in one case excluding certain evidence is in effect a ruling in another case, where similar evidence is offered bearing upon a different issue and tending to prove a different and a dissimilar fact. The question called for information upon the subject of Dickinson's valuation—a...

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