Hall v. Merrimack Mut. Fire Ins. Co.

• Decision Date: 02 April 1940
• Docket Number: Nos. 3143, 3144.,s. 3143, 3144.
• Citation: 13 A.2d 157
• Parties: HALL v. MERRIMACK MUT. FIRE INS. CO., and three other cases.
• Court: New Hampshire Supreme Court

13 A.2d 157

HALL

v. MERRIMACK MUT. FIRE INS. CO., and three other cases.

Nos. 3143, 3144.

Supreme Court of New Hampshire. Carroll.

April 2, 1940.

Exceptions from Superior Court, Carroll County; James, Judge.

Actions of assumpsit by Sarah E. Hall against the Merrimack Mutual Fire Insurance Company, the Orient Insurance Company, the New York Underwriters Insurance Company, and the Atlas Assurance Company, Limited, on policies of fire insurance. Trials resulted in verdicts for plaintiff. On exceptions by both plaintiff and defendants.

Exceptions overruled in the first two actions, and judgments on the verdict in the others.

Four actions of assumpsit, on policies of fire insurance. At the previous transfer of these cases, 6 A.2d 172, judgments for the plaintiff were ordered in the first two and new trials in the others. After that opinion was handed down the plaintiff moved that in the retrial of the action against the Atlas Company, "the issue be limited solely to the question of fraud with respect to the value of the household furniture and furnishings", and that in the retrial of the action against the New York Underwriters Company, "the issue be limited to the question of value of the Brooks Histories destroyed by the fire." This motion was granted and the defendants excepted. The second trial of these two actions on the issues as above limited resulted in verdicts for the plaintiff.

In all four actions the defendants moved for a new trial upon all issues on the ground of newly discovered evidence and filed affidavits in support of their motion. The court below found as a fact that the defendants' failure to present evidence at the first trial as to the matters contained in the motions and affidavits was not due to any lack of diligence on the part of either the defendants or their counsel, but denied the motions and the defendants excepted.

The plaintiff excepted to the granting by the court of a motion filed by the defendants for leave to extend the time within which they were required by the rules of court to pay the estimated cost of printing.

The defendants' bills of exceptions, in which by order of court was included the plaintiff's exception to the order granting the extension of time, was allowed by James, J.

Cooper & Hall, of Rochester (Burt R. Cooper, of Rochester, orally), for plaintiff.

Thorp & Branch, of Manchester (F. W. Branch, of Manchester, orally), for defendants.

WOODBURY, Justice.

The exception of the plaintiff mentioned last above presents no question of law for this court since the matter is one solely within the sound discretion of the court below and there is nothing to indicate any abuse or error of discretion in the ruling made. Deming v. Foster, 42 N.H. 165, 178, 179; Sanborn v. Boston & M. Railroad, 76 N.H. 65, 66, 79 A. 642, and cases cited: Flannagan v. Prosper Shevenell & Son, 82 N.H. 403, 135 A. 24.

The defendants' exception to the granting of the plaintiff's motion for limitation of issues at the second trial of the actions against the Atlas and New York Underwriters companies also presents no legal question. "The question how far beyond the correction of the error the new trial must go in order to afford a fair trial is one of fact. It is not for this court, except as to the inquiry whether there is evidence to warrant a finding one way or the other" (West v. Boston & M. Railroad, 81 N.H. 522, 523, 129 A. 768, 774, 42 A.L.R. 176), and we find in the record nothing to indicate conclusively that the errors made at the first trial tainted all the issues then submitted. See also Bullard v. McCarthy, 89 N.H. 158, 165, 195 A. 355; Vallee v. Spanieling Fibre Company, 89 N.H. 285, 291, 197 A. 697; Emerson v. Twin State Gas & Electric Company, 87 N.H. 108, 113, 174 A. 779; Bean v. Quirin, 87 N.H. 343, 349, 179 A. 421, 180 A. 251; McCrillis v. American Heel Company, 85 N.H. 165, 170, 155 A. 410; Arlington Mills v. Salem, 83 N.H. 148, 159, 140 A. 163; Maravas v. American Equitable Assur. Corporation, 82 N.H. 533, 543, 136 A. 364; Derosier v. New England Telephone & Telegraph Company, 81 N.H. 451, 130 A. 145.

The defendants' motions for a new trial present an equally narrow question for this court (Jackson v. Smart, 89 N.H. 457, 458, 203 A. 789), but they demand somewhat more extended consideration. The evidence adduced by the defendants in support of these motions relates to the parentage of the child which the plaintiff kept with her arid boarded both in her house in Conway which burned and elsewhere. At the first trial the plaintiff testified that this child was a daughter of one Seth W. Norwood; that he paid the plaintiff for her board, their relations being solely of a business nature; that she had taken the child when it was only four months old and had kept it continuously ever since, and that she did not know and had never inquired who its mother was. After this trial the defendants discovered evidence in the records of vital statistics in Rochester tending to show that the plaintiff was the child's mother, and at the second trial of the actions against the Atlas and New York Underwriters companies the plaintiff admitted that in fact she was the mother of the child.

With respect to this newly discovered evidence the defendants contend, first, that it entitles them all to a new trial upon all issues, and second, that since the plaintiff admitted it to be true at the second trial of the actions against the two last named defendants, it conclusively establishes that she testified falsely at the first trial and so "affords the defendants a complete defense as a matter of law."

With respect to their second contention counsel for the defendants argue that the plaintiff's deliberately false testimony at the first trial, regardless of any other considerations, is sufficient to warrant an order of judgments for all defendants. No authorities in support of this proposition have been cited to us and diligent search upon our part has disclosed none. There are cases both here and elsewhere to the effect that evidence of a party's deliberate falsehood under oath with respect to issues in litigation is admissible not only to induce lack of confidence in his credibility but also to cast doubt upon the honesty and good faith of his claim (Knight v. Heath, 23 N.H. 410; Sanborn v. Sanborn, 65 N.H. 179, 23 A. 431; Bennett v. Susser, 191 Mass. 329, 77 N.E. 884), and there are also cases, criticised in 2 Wigmore on Evidence, 2d Ed., § 1008, et seq., and not followed here (Sanborn v. Sanborn, supra), which hold that the rule expressed by the maxim Falsus in uno, falsus in omnibus, operates as a matter of law to wholly discredit all of a party's testimony when it is found that he deliberately testified falsely in even one respect, but we have been able to find no authority anywhere for the broad rule that the falsehood of one party, regardless of the other evidence in the case, operates to compel an order of judgment for his adversary as a matter of law.

While novelty is no! an all-sufficient reason for the rejection of a proposed rule, still utter lack of authority for a proposition indicates that it ought to be subjected to careful and serious scrutiny before adoption. Testing the rule contended for by the criterion of its apparent usefulness to accomplish substantial justice in the present day community, we find it wanting in merit. A major difficulty with the rule arises from the impossibility of applying it to cases in which both parties have been guilty of deliberate falsehood. Surely the rule must operate against a defendant as well as against a plaintiff, and surely a deliberate falsehood found by the jury must stand upon the same footing as one confessed. In the event of found or admitted lying by both parties, the court would either have to waive the rule and permit the parties to go to the jury on the merits, or else by ruling of law give one liar a victory at the expense of the other. To adopt the first alternative would require that the rule be applied only in cases in which but one party has falsified and abandoned when both have done so, a result which reason does not support; to adopt the other would permit one party guilty of falsehood to recover by a ruling of law in spite of his lie from another party similarly situated (the rule with respect to the burden of proof upon the merits would not be germane), a result equally unsupported by reason as well as one which is in complete contradiction to the rule itself. We see no escape from the dilemma which the adoption of the proposed rule as one of law would create.

Upon full consideration we are content to adhere to the rule of Sanborn v. Sanborn, 65 N.H. 179, 23 A. 431, and permit the introduction of evidence of a party's deliberate falsehood, like evidence of other comparable misconduct on his part, such as attempting to bribe a juror (Taylor v. Gilman, 60 N.H. 506), or suppressing evidence, (Janvrin v. Scammon, 29 N.H. 280, 291; Story v. Concord & M. Railroad, 70 N.H. 364, 378, 48 A. 288), for the jury to use or not as they see fit, either for the purpose of discrediting the offender's testimony, or for discrediting his entire case.

If the defendants are entitled to an order of judgments in their favor from this court, then, it can only be upon the ground that as a matter of law the plaintiff's false testimony constituted either a fraud or an attempt to defraud which under the terms of the policies renders them void.

In this state a fraudulent representation, in distinction from a negligent one, must have been made either with knowledge of its falsity or with conscious indifference to its truth. Shackett v. Bickford, 74 N.H. 57, 65 A. 252, 7 L.R.A., N.S., 646, 124 Am.St.Rep. 933. But deliberate falsehood alone is not enough to establish fraud as a matter of law. Metropolitan Life Ins. Co. v. Olsen, 81 N.H. 143, 123 A. 576, 32 A.L.R. 1472. It has long been the rule in this state, and this rule has been...