Lamy v. Demers

• Decision Date: 04 May 1915
• Parties: LAMY v. DEMERS.
• Court: New Hampshire Supreme Court

94 A. 262

77 N.H. 563

LAMY

v. DEMERS.

Supreme Court of New Hampshire. Hillsborough.

May 4, 1915.

Transferred from Superior Court, Hillsborough County; Chamberlin, Judge.

Case for negligence by Joseph Larny against Honore Demers. There was a verdict for defendant, and the cause was transferred from the superior court, Plaintiff's exceptions sustained, and new trial granted.

The action was brought to recover for injuries received in a collision between motor cycles operated by the plaintiff and the defendant. In closing argument the defendant's counsel used the following language, to which the plaintiff excepted:

"I think I need say nothing more. The man was injured. We are not concerned in his injuries in this case outside of the sympathy we have for him, that anybody would have for him, in his injury. But when he comes to Honore Demers and says, 'Demers, out of your little estate I want the whole of it to the extent of what I claim in my writ,' or whatever he may say about that as to how much he wants, under those circumstances we say, when you come into court you must come with clean hands."

The ad damnum in the writ was $5,000. There was no evidence as to the amount of the defendant's estate, whether it was much or little, or whether he had any property, except as might be inferred from the fact that he was a loom fixer and ran a shop in the motor cycle and bicycle business in Manchester. In the charge to the jury no special reference to the exception was made. They were instructed in the usual way not to consider any unwarranted inferences drawn by counsel from the evidence, and that the fact that the parties were man against man made no difference. The defendant's counsel did not withdraw any part of the objectionable remarks, and the court did not instruct the jury to disregard them.

Osgood & Osgood, of Manchester, for plaintiff. Jones, Warren, Wilson & Manning, of Manchester, for defendant.

PLUMMER, J. The natural tendency of the objectionable remarks was to arouse sympathy for the defendant and render the trial unfair. It was an improper attempt to get before the jury a statement of fact favorable to the defendant and prejudicial to the plaintiff, which was not in evidence and, if it had been offered, would have been excluded. The case is not to be distinguished from Caverhill v. Railroad, 77 N. H. 330, 91 Atl. 917, in which counsel for the plaintiff argued:

"That the verdict asked was not a very serious matter to the railroad, ...