Eichel v. Payeur

• Decision Date: 17 November 1965
• Citation: 214 A.2d 116,106 N.H. 484
• Parties: Harold EICHEL v. Isabelle PAYEUR. Elaine D. EICHEL v. Isabelle PAYEUR. Isabelle PAYEUR. v. Harold EICHEL. Louis A. PAYEUR v. Harold EICHEL.
• Court: New Hampshire Supreme Court

Page 116

214 A.2d 116

106 N.H. 484

Harold EICHEL v. Isabelle PAYEUR.

Elaine D. EICHEL v. Isabelle PAYEUR.

Isabelle PAYEUR. v. Harold EICHEL.

Louis A. PAYEUR v. Harold EICHEL.

Supreme Court of New Hampshire.

Argued Sept. 9, 1965.

Decided Oct. 29, 1965.

Rehearing Denied Nov. 17, 1965.

George H. Keough, Berlin, and Hinkley & Donovan, Lancaster (Walter D. Hinkley, Lancaster, orally), for Harold Eichel.

Hinkley & Donovan, Lancaster (Walter D. Hinkley, Lancaster, orally), for Elaine D. Eichel.

Rich & Burns, Berlin (James J. Burns, Berlin, orally), for Lsabelle and Louis A. Payeur.

DUNCAN, Justice.

These are four actions on the case arising out of a motor vehicle collision which occurred at an intersection in Gorham at approximately 11 P.M. on November 16, 1962. Mr. Eichel, accompanied by a passenger who subsequently became Mrs. Eichel, was operating his automobile in a northerly direction on Route 16, so-called, while Mrs. Payeur was driving an automobile owned by her husband in a southerly direction on the same highway. As Mrs. Payeur undertook to make a lefthand turn into an intersecting way leading southeasterly toward Cascade Flats the automobiles collided, causing damage to both cars, and personal injuries to all three occupants.

Trial by jury resulted in a verdict in the sum of $4,590 in the action by Elaine D. Eichel to recover for personal injuries and a verdict in the sum of $456 in the action by Louis A. Payeur to recover for damage to his automobile. Defendant's verdicts were returned in Mrs. Payeur's action against Mr. Eichel and in his action against her, both of which sought damages for personal injuries.

In the course of the trial the parties preserved certain exceptions including an exception by Mr. Eichel to denial of motions for nonsuit and directed verdict in the action by Louis A. Payeur. After the verdicts, the motion of Harold Eichel to set aside the verdict for the defendant Isabelle Payeur was denied subject to his exception, and the motion of Elaine D. Eichel to set aside the verdict in her favor against Isabelle Payeur was granted subject to the defendant Payeur's exception. The questions of law presented by the several exceptions were reserved and transferred by the Presiding Justice (Leahy, C. J.).

In the action of Elaine D. Eichel against Isabelle Payeur the only exception briefed and argued by the parties in this court was the defendant's exception to the order setting aside the verdict and ordering a new trial on the issue of damages only. The ground for the motion was that 'the damages * * * are inadequate and against the weight of the evidence.'

At the conclusion of the hearing on the motion the Presiding Justice for the first time desclosed to counsel that he had been 'surprised' by the verdict and had interrogated the foreman of the jury concerning it. In so doing he learned that the issue of liability was determined by the jury as to all cases before damages were discussed. He also was told that the foreman had entertained the idea that any insurance coverage probably did not exceed $5,000, and thought that the verdict in the case of Eichel v. Payeur should be in that amount, that certain jurors were disposed to assess the damages at $1,000, and that a verdict of $3,500 plus the plaintiff's bills (approximating $1,090) was finally agreed upon. The Court concluded his disclosure to counsel saying: 'Now with that in mind I am going to set aside the verdict on damages only.'

The plaintiff Elaine D. Eichel was 22 years old and unmarried at the time of the accident. At the time of trial she had a life expectancy of 55.9 years. In the collision she suffered a laceration below her lower lip which required stitches both inside and outside the mouth, and eventually plastic surgery. This lfft her with a permanent scar and a noticeable thickening of the lower lip. There was evidence that because of severed nerves, she suffered permanent numbness of the lip which occasionally caused food or drink to dribble from her mouth without her knowledge. There was evidence of a compression fracture of a lumber vertabra which had healed by the time of trial, and of a permanent 'slight slipped disc' resulting in atrophy of the muscles of the right thigh, and producing intermittent back pain.

It is 'firmly settled law' both here and in other jurisdictions that the testimony of jurors is incompetent to impeach their verdict. 8 Wigmore, Evidence (McNaughton Rev.) 702, s. 2354. It is likewise settled by our decisions that the trial court may in its discretion recall and interrogate the jurors concerning the ground upon which they proceeded in reaching their verdict, in order to ascertain whether the case has been properly tried, and that this may be done even though the jurors have separated. Dearborn v. Newhall, 63 N.H. 301. See 8 Wigmore, supra, s. 2350. These principles, and the authorities by which they have been established were reviewed at length in Caldwell v. Yeatman, 91 N.H. 150, 15 A.2d 252 and need not be discussed in detail here.

Interrogation of a jury in open court is a recognized practice in the course of which the foreman may properly speak for the jury. Walker v. Sawyer, 13 N.H. 191; Newell v. Rosenberg, 275 Mass. 455, 176 N.E. 616. See Burgess v. Giovannucci, 314 Mass. 252, 49 N.E.2d 907.

In the case before us the Presiding Justice however appears to have questioned the foreman individually and privately. The extent, if any, to which the foreman's mistaken...