Genest v. Odell Mfg. Co.

• Decision Date: 01 July 1910
• Citation: 77 A. 77,75 N.H. 509
• Parties: GENEST v. ODELL MFG. CO.
• Court: New Hampshire Supreme Court

77 A. 77

75 N.H. 509

GENEST

v. ODELL MFG. CO.

Supreme Court of New Hampshire. Coos.

July 1, 1910.

Transferred from Superior Court; Coos County.

Personal injury action by Charles Genest against Odell Manufacturing Company. Verdict for plaintiff. Case transferred on defendant's exceptions to remarks of counsel in closing arguments. Exceptions overruled.

See, also, 75 N. H. 365, 74 Atl. 593.

Remick & Hollis and Alexander Murchie, (Murchie orally), for plaintiff.

Drew, Shurtleff & Morris (Morris orally), for defendant.

BINGHAM, J. The defendants seek to set aside the verdict for the plaintiff upon exceptions taken to remarks of counsel in his closing argument. The questions thus presented are the only ones that require consideration, as a guardian ad litem has been appointed to take charge of the suit for the plaintiff.

1. Dr. O'Brien, a witness for the defendants, testified upon cross-examination that he was employed to attend the men who were injured at the defendants' mill and was paid for this service by an insurance company. This evidence was received without objection. Later, the plaintiff's counsel offered to prove that an Insurance company was Interested in the defense of the suit; but upon its being suggested by the court that unless that fact was material upon some issue in the case it ought not to be introduced, the offer was withdrawn. In the argument counsel for the plaintiff said, "Here is Dr. O'Brien; he works for the Travelers' Insurance Company," whereupon an exception was taken and counsel withdrew the remark, stating to the jury that it was not evidence, and nothing further was said with reference to the matter. As Dr. O'Brien was employed by an insurance company to attend the men who were injured at the defendants' mill, and this fact was in evidence, it would seem that it would have been competent for the plaintiff to have shown that the insurance company which employed him was interested in the result of the suit, as bearing upon his credibility as a witness. It is common practice, where a party to a suit calls as a witness a person in his employ, to permit this fact to be shown and for counsel to comment upon it. as bearing upon the witness' credibility (2 Wig. Ev. § 949); and it can make no difference that the employer of the witness is a party in interest and not a party of record, the additional fact of interest being shown.

The defendants, however, contend that the plaintiff's counsel attempted to state in his argument what he was not permitted to prove by evidence when he said to the jury that Dr. O'Brien worked for the Travelers' Insurance Company; that by so doing he injected into the case (1) that the defendants were insured...