Hoyt v. Tilton

• Decision Date: 03 February 1925
• Citation: 128 A. 688
• Parties: HOYT v. TILTON.
• Court: New Hampshire Supreme Court

128 A. 688

HOYT

v. TILTON.

Supreme Court of New Hampshire. Carroll.

Feb. 3, 1925.

Transferred from Superior Court, Carroll County; Sawyer, Judge.

Action on the case by Charles B. Hoyt, Administrator, against Frank E. Tilton: Verdict for defendant and case transferred on plaintiff's exceptions. Exceptions sustained.

Case to recover for injuries to the plaintiff's decedent, Oscar Landon. Trial by jury, and verdict for the defendant.

The declaration contained four counts. The first charged the defendant with furnishing intoxicating liquor to Landon, whereby Landon became intoxicated, fell from a load of hay, and received fatal injuries. Recovery is claimed under Laws 1917, c. 147, § 36. The fourth count claims a similar right under 41 U. S. Sts. at Large, c. 85, tit. 2, § 20 (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/2j). The second count charges that the defendant employed Landon, caused him to become intoxicated and then negligently set him at work in a place of danger. The third count seeks a recovery upon the ground that the defendant undertook the care of Landon, after the injury, and was negligent in the performance of the assumed duty.

The plaintiff filed requests that all these claims be submitted to the jury. The requests were denied, except so far as covered by the charge, and the case was sent to the jury, under instructions that the plaintiff might recover only upon one of two grounds: (1) That, if Landon was not the defendant's servant, and the defendant furnished Landon liquor, thereby causing his intoxication and his subsequent injury, the defendant was liable; and (2) that, if Landon was the defendant's servant, then it was immaterial where Landon got the liquor, except upon the question of the defendant's knowledge of Landon's condition, and that the defendant would be liable only upon a finding that he negligently sent his intoxicated servant into a place of danger.

The plaintiff excepted to the refusal to charge as requested, and to the instruction that, if Landon was the defendant's servant, it made no difference where the liquor was procured. Transferred by Sawyer, J.

Snow & Cooper and C. E. Snow, all of Rochester, for plaintiff.

Owen & Veazey, Young & Cheney, and Oscar L. Young, all of Laconia, for defendant.

PEASLEE, C. J. At the outset of the case a question is presented as to the effect of the verdict which has been found for the defendant. It is urged on his behalf that the rule as to a general verdict and judgment should apply, and that, therefore, the verdict is conclusive against the plaintiff as to all facts which were in any way involved in the case as submitted to the jury.

The verdict establishes that no combination of facts existed which would warrant a recovery under the charge; that is, it is to be taken as true that the defendant did not furnish liquor whereby one not his servant became intoxicated and suffered injury, and that the defendant did not negligently send his intoxicated servant into a place of danger. These issues were properly tried and are settled by the general verdict for the defendant. But, if there are other combinations of facts which could have been found from the evidence, and, being found would establish liability, the plaintiff was entitled to have them passed upon, as requested, and they are still open to him. Upon these issues all facts are still open to inquiry. The verdict as returned does not settle any particular fact, since in each aspect of the case, as submitted, the verdict may have been found upon one fact or another. On the first issue it cannot be ascertained whether the verdict was found because Landon was not intoxicated, because he was the defendant's servant, or because the defendant did not furnish the liquor. On the second issue the jury may have found that the defendant was not negligent; that Landon was not his servant, or was not intoxicated.

The case does not stand like one where there has been a judgment on a verdict. In such a case the judgment "concludes the parties, not only as to every matter which was offered and received to sustain or defeat the suit, but also as to any other matter which might have been offered for that purpose." Metcalf v. Gilmore, 63 N. H. 174, 189; Chesley v. Dunklee, 77 N. H. 263, 267, 90 A. 965. If this case had gone to judgment, the plaintiff could not maintain another suit for negligently causing the injury in some way not claimed in the first suit. Chesley v. Dunklee, supra. But here there was error in the trial, for which the verdict must be set aside. As the practice formerly was, this would require a new trial of the whole case. But in modern procedure nothing is tried over that has been well tried. Lisbon v. Lyman, 49 N. H. 553; Morin v. Nashau Mfg. Co., 78 N. H. 567, 570, 103 A. 312, and cases cited.

The rule that a retrial is limited to the requirements of justice does not prevent a new trial of the whole case, when the error may have affected all the issues tried. Laird v. Railroad, SO N. H. 58, 60, 114 A. 275, 16 A. L. R. 243, and cases cited. But as the errors here complained of consist merely in the failure to submit certain issues to the jury, it is evident that there was nothing to prejudice the plaintiff as to those which were submitted.

The verdict stands as establishing what is in fact found by it; but because of errors at the trial it is not a general verdict upon which a judgment can be rendered. The rule relating to a verdict followed by a judgment does not apply. That rule was adopted upon the theory that, when a party has had one opportunity to fully and fairly present his cause, the litigation should be ended. If he neglects to present all grounds, he can obtain relief only because of accident or mistake. "This is the reasonable protection afforded the defendant against repeated and unwarranted suits for the same cause." Chesley v. Dunklee, 77 N. H. 263, 268, 90 A. 965, 967.

There is no such situation here. The plaintiff did present all his grounds, but was denied the right to have them passed upon by a jury. This is not a second suit for the same cause, but an endeavor to get all questions tried in the first suit. The only way the verdict can be saved at all is by treating it as merely establishing the particular facts found thereby, under correct rulings of law.

So far as the grounds for recovery claimed by the plaintiff and not submitted to the jury are concerned, the case stands substantially as it would if there had been no trial. The writ contained four counts: One based upon Laws 1917, c. 147, § 36, seeking to charge the defendant, upon proof, that he furnished Landon liquor with which Landon's intoxication was caused and as a result his injury followed; one based upon a similar claim under the federal statute; one for causing his employee to become intoxicated and then negligently sending the servant into a place of danger; and one for negligence in caring for the injured man, after having undertaken such duty. Requests were made for instructions which would submit these various claims. They were denied, except that the liability of a master was submitted in the form before indicated. The issue of negligence in sending an intoxicated servant into a...