Lee v. Dow

• Decision Date: 01 November 1904
• Citation: 73 N.H. 101,59 A. 374
• Parties: LEE et ux. v. DOW.
• Court: New Hampshire Supreme Court

59 A. 374

73 N.H. 101

LEE et ux.

v. DOW.

Supreme Court of New Hampshire. Grafton.

Nov. 1, 1904.

Exceptions from Superior Court.

Assumpsit for a breach of a contract for labor by Egbert Lee and wife against Louis H. Dow. There was a verdict for plaintiffs, and defendant excepts. Transferred from the superior court. Exceptions overruled.

Alonzo L. Chamberlin and Ira Colby & Son, for plaintiffs.

Batchellor & Mitchell and Smith & Smith, for defendant.

CHASE, J. 1. Egbert Lee, in testifying with reference to his attempts to get work after his return to Springfield, said: "When the snow came, I shoveled snow whenever I could get the snow to shovel; and the room I slept in was so cold I took the rheumatism, and had rheumatism dreadfully." The defendant excepting to the last part of the statement, the court excluded it, and the next morning, upon request of the plaintiffs' counsel instructed the jury that it was withdrawn, and that they should pay no attention whatever to it. In the final charge to the jury, they were instructed that the plaintiffs were not entitled to damages for any sickness either of them may have had. The instructions certainly seem to have been sufficiently full and definite to prevent the error from having effect. Mason v. Knox, 66 N. H. 545, 546, 27 Atl. 305. But whether the trial was rendered unfair by the occurrence is a question of fact, which should be determined at the trial term. Burnham v. Butler, 58 N. H. 568; Guertin v. Hudson, 71 N. H. 505, 53 Atl. 736.

2. Mrs. Lee, one of the plaintiffs, being asked if she had trouble with the defendant's mother, who had charge of the house during an absence of the defendant and wife, and to state her peculiarities, replied: "Yes; she was a very peculiar woman; very irritable; hard to get along with." Objection being made by the defendant's counsel, the plaintiffs' counsel said: "I want to ask the witness about her general conduct and appearance, and how she was from time to time, with reference to shedding some light on matters in this case." In response to an inquiry by the court, the defendant's counsel said that they objected, and the court said, "I will exclude it now." Thereupon the plaintiffs' counsel asked this question: "Did Mrs. Dow get angry sometimes?" The defendant's counsel objecting, the testimony was excluded, and no answer to the question was made. The defendant's counsel also excepted "to the putting of such a question." After further discussion, the court said: "There is no need to discuss it. The court is with you. You may get me to rule the other way if you keep on." The defendant excepted to these remarks. When the first question was put and answered, there seems to have been some doubt in the minds of the court and counsel as to the admissibility of the testimony. The defendant's counsel made no objection until the question had been answered. Upon the interposition of the objection, the plaintiffs' counsel stated his reason for asking the question. The court, before making a ruling, inquired of the defendant's counsel if they objected. Upon receiving an affirmative reply, he excluded the testimony "now"; indicating that he had doubts about the correctness of the ruling, and might revise it later. The doubt probably arose from a consideration of the question whether the proffered testimony was or was not too remote to be of service in deciding the issues. It is conceivable that, if Mrs. Dow had peculiarities which affected her bearing toward the plaintiffs while she had charge of the house, the peculiarities might have some tendency to show whether or not the plaintiffs' conduct was reasonable cause, under the circumstances, for discharging them. Whether the evidence would have such tendency, or not, depended largely upon the other evidence in the case, and very likely required an exercise of the court's judgment upon the question of remoteness. The first question to the witness was general. It related to peculiarities generally. The second one related specifically to anger. The circumstances have no tendency to show that it was asked with a view of impressing upon the minds of the jury the idea that the court was wrong, and influencing them to accept the testimony in spite of the court's ruling. They tend to show, on the contrary, that the question was asked in good faith, with a view of presenting in mind specifically to the court's attention, and thereby removing his doubt. There is no reason for supposing that the court's ruling was not acted on by the jury, or that the trial was in any way rendered unfair by the asking of the question. Nor does it seem probable that the subsequent manifestations of impatience were regarded by the jury otherwise than according to their real character—as natural and harmless incidents of circumstances suddenly developed in the course of a closely and earnestly contested trial.

3. To the question asked Mrs. Lee by her counsel: "Were you present when Mr. Dow said to your husband: 'Get right out here now. I don't want you here any more'?"— she replied: "Yes; but that was when he met him in the yard. No, sir; I wasn't present then. He met him in the yard and said that, and he came right in and says: 'Mr. Dow says we must get right out'" The defendant excepted to the testimony, and the plaintiffs' counsel said: "What Mr. Lee said to you when Mr. Dow was not present of course, you won't state." The witness replied: "No; I wasn't present." The court, jury, and counsel all must have understood that the witness' statement with reference to what occurred in the yard was not offered or put in evidence. Furthermore, there seems to have been no dispute between the parties relating to the fact of the plaintiffs' discharge by the defendant. The only difference in the testimony was in the form of expression used at the time. Evidently this error was harmless.

4. The plaintiffs' counsel, in his closing argument to the jury, said: "I want to say here— And it is sometimes as plain from what a man doesn't do, what the truth is, as it is from what he does do. Now, they have been in the business of taking depositions. Large quantities of...