Emerson v. Cobb

• Decision Date: 26 June 1936
• Parties: EMERSON v. COBB (two cases).
• Court: New Hampshire Supreme Court

186 A. 12

EMERSON

v. COBB (two cases).

Supreme Court of New Hampshire. Merrimack.

June 26, 1936.

Exceptions from Superior Court, Merrimack County; Page, Judge.

Actions on the case by Ednah S. Emerson and James Emerson, respectively, against Marion Cobb. Verdicts for plaintiffs, and defendant brings exceptions.

Judgments on the verdicts.

Two actions on the case for negligence. In the first action, the plaintiff seeks to recover damages for personal injuries alleged to have been caused by the negligent operation of an automobile by the defendant; in the second, her husband seeks to recover damages for consequential expenses and loss of services. Trial by jury, with verdicts for both plaintiffs.

During the course of the direct examination of the plaintiff Ednah, she testified as follows: "Q. You have how many children? A. I had three. I have two living. They are both blind, practically blind." No objection to the above question was made on behalf of the defendant. After the answer had been given, however, counsel for the defendant went to the desk and "complained" of the question and answer. The presiding justice then stated in the presence of counsel for both parties "that if the defendant wished-to move to have the answer stricken from the record the motion would be granted." Counsel for the defendant stated, "in substance, that he did not care to have the subject brought to the attention of the jury by a motion, ruling and instructions. Upon the suggestion of the court it was then agreed by counsel that the testimony should not be mentioned further in the course of the trial." No exception to any action on the part of the court was taken at this time.

"Prior to the resumption of the testimony the next morning the defendant moved in chambers for a mistrial on the ground of the testimony above mentioned, again stating in substance that she feared increased prejudice if there were a motion to strike the testimony from the record. The motion was denied subject to the defendant's exception but without prejudice to the right of the defendant to renew the motion at the close of all the evidence. At the close of the evidence, the motion for a mistrial was renewed and again denied, subject to the defendant's exception."

Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiffs.

Warren, Wilson, McLaughlin & Bingham, of Manchester, for defendant.

BRANCH, Justice.

Inasmuch as the defendant declined the relief offered by the presiding justice, she cannot and does not complain of the court's failure to order the testimony stricken from the record or to instruct the jury to disregard it. In accordance with the judgment of defendant's counsel, the court adopted the method which was believed to be best calculated to minimize the harmful effect of the plaintiff's statement, i. e. by ignoring it. The case must, therefore, be considered as though all available methods for curing the alleged error had been adopted. Hence the denial of the defendant's motion for a mistrial presents only the question whether, as a matter of law, the prejudicial effect of the abovementioned testimony was so great that it could not be cured. Rules of law which are well settled in this jurisdiction require that this question be answered in the negative.

It is a cardinal principle of our practice that errors which occur in the course of a trial are not necessarily incurable and that the effect of evidence which comes improperly before a jury may be cured by an order that it be stricken from the record and an instruction to the jury to disregard it. "This rule is based on the belief that jurymen can, with proper effort, ignore certain facts within their knowledge, and form their judgment by a consideration of other facts." Mason v. Knox, 66 N.H. 545, 546, 27 A. 305; Doe v. Lucy, 83 N. H. 160, 166, 139 A. 750. Such has been the practice in this state for more than a century. Hamblett v. Hamblett, 6 N.H. 333; Town of Deerfield v. Town of Northwood, 10 N.H. 269; Judge of Probate v. Stone, 44 N.H. 593; Zollar v. Janvrin, 47 N.H. 324; Burnham v. Butler, 58 N.H. 568; Goodwin v. Scott, 61 N.H. 112; Mason v. Knox, supra; Lee v. Dow, 73 N. H. 101, 59 A. 374; Connecticut River Power Co. v. Dickinson, 75 N.H. 353, 356, 74 A. 585; Burnham v. Stillings, 76 N.H. 122, 129, 79 A. 987; Vigneault v. Winchester Tannery Co., 76 N.H. 196, 199, 81 A. 407; Pope v. Boston & Maine R. R., 79 N.H. 52, 104 A. 403; Doe v. Lucy, supra.

No reason is perceived for holding, as a matter of law, that any feeling of compassion for the plaintiffs which may have been aroused by the fact that they had two blind children could not have been kept within legitimate limits by appropriate instructions from the presiding judge. This is not a case like Doe v. Lucy, supra, in which a finding of fact was demonstrably based upon inadmissible testimony, or like James Stewart & Co. v....