LePage v. St. Johnsbury Trucking Co.

• Decision Date: 03 April 1951
• Citation: 97 N.H. 46,80 A.2d 148
• Parties: LE PAGE v. ST. JOHNSBURY TRUCKING CO., Inc. et al.
• Court: New Hampshire Supreme Court

Page 148

80 A.2d 148

97 N.H. 46

LE PAGE v. ST. JOHNSBURY TRUCKING CO., Inc. et al.

Supreme Court of New Hampshire.

April 3, 1951.

Rehearing Denied May 1, 1951.

Murchie & Cofran and Thomas E. Flynn, Jr., all of Concord (Mr. Flynn orally), for the plaintiff.

Wyman, Starr, Booth, Wadleigh & Lengdell, Manchester (Mr. Wyman orally), for the defendants.

DUNCAN, Justice.

The plaintiff's motions for a directed verdict in his favor, made at the close of the evidence, were properly denied. One motion was general; the other sought a directed verdict under the count of the declaration alleging an intentional wrong, upon the specific ground that the evidence was uncontradicted that the defendant Chamberlain intentionally 'speeded up' the truck after he became aware of the plaintiff's presence on the truck. While it was conceded by the defendant that the speed of the truck increased 'somewhat' after the plaintiff mounted the running board, there was a conflict in testimony as to the extent of the increase. The defendant testified that the vehicle was traveling five to ten miles an hour when the plaintiff got on, and that at no time thereafter did the speed exceed ten to twelve miles an hour; that although he made no attempt to stop and was gathering speed as fast as he could, 'that would be pretty slow there'; and that the maximum speed possible in second gear was fifteen miles an hour because of a governor on the truck. The evidence introduced by the plaintiff tended to prove a speed of twenty to twenty-five miles an hour when the accident occurred.

'It is only when from undisputed facts the only inference that can reasonably be drawn conclusively establishes the plaintiff's case that he is entitled to a verdict as matter of law.' Williams v. Duston, 79 N.H. 490, 491, 111 A. 690, 691. A verdict 'will not ordinarily be directed in favor of the party having the burden of proof.' Mitrich v. Tuttle, 90 N.H. 512, 514, 11 A.2d 818, 820.

The issue presented by the second count of the plaintiff's declaration was not whether the speed of the truck was deliberately increased, but whether the plaintiff was deliberately injured by the defendant. Increase in speed was only one of the factors alleged to have caused the plaintiff to be 'thrown with great force from [the] running board.' It was apparent from the evidence that speed was not the sole cause of the injury. The defendants' evidence warranted a finding that the plaintiff lost his balance while kicking the glass of the cab door; the plaintiff's that he was dislodged by reason of the door being opened, an occurrence which the defendant operator denied. It cannot be said that the facts which were undisputed warranted only one inference which established liability.

With respect to the count for negligence the jury could find that there was no material increase in speed and that if the plaintiff could safely board the truck at the speed it was traveling, he could safely dismount. Moreover, the question of his due care was a jury question on the evidence.

'The chief difficulty with the plaintiff's position is in meeting the jury's duty to discount and discredit testimony when they think they should.' Andrew v. Goodale, 85 N.H. 510, 511, 161 A. 36. The plaintiff's evidence was not such that the defendants' liability was 'the only conclusion which could reasonably be drawn from the evidence.' Hubbard v. Leighton, 79 N.H. 190, 191, 106 A. 485.

The plaintiff stresses his exception to the order of the Court by which the defendants were permitted after the close of the evidence to plead justification or self-defense. It is asserted that the ruling was a violation of Superior Court Rule 21, 94 N.H.Appendix in that the leave granted was not 'for good cause shown'; and that the plaintiff was deprived of a fair trial. In making the argument, the plaintiff recognizes the practice of long standing in this jurisdiction of permitting amendments when 'seasonably' sought and the opposing party will not be prejudiced. See Welch v. Coleman, 95 N.H. 399, 64 A.2d 691; Jackson & Sons v. Lumbermen's Mut. Casualty Company, 86 N.H. 341, 168 A. 895; Lovejoy v. Ashworth, 94 N.H. 8, 45 A.2d 218. Notice may also be taken of the line of decisions standing for the proposition that 'it is not the practice here to spend time in the investigation of the technical accuracy of the pleadings' after the action has without objection been fully tried by the parties. Barrett v. Cady, 78 N.H. 60, 65, 96 A. 325. See also, R.L. c. 390, §§ 8, 9; Gosselin v. Lemay, 85 N.H. 13, 14, 153 A. 716; McDonald v. Smith, 79 N.H. 143, 106 A. 558.

It does not seem doubtful that the defendants might, and in compliance with the rule should have pleaded justification seasonably, unless they proposed to rely solely upon matters open under the general issue. Rule 21, supra, Fortier v. Stone, 79 N.H. 235, 107 A. 342; Noyes v. Edgerly, 71 N.H. 500, 53 A. 311; Wheeler v. Whitney, 59 N.H. 197. The nature of the claims of the parties must have been fully disclosed by the depositions taken in advance of trial. The fact that the defendants were required to meet issues presented by two different counts, and that they denied any conduct calculated to establish a deliberate injury should not have prevented seasonable pleading. Under our practice inconsistent defenses might be pleaded, Bean v. Mercantile Insurance Company, 94 N.H. 342, 54 A.2d 149; True v. Huntoon, 54 N.H. 121, and the usual form of plea of the general issue with brief statement of justification, R.L. c. 391, § 3, was adequate to present the defenses relied upon. See Newhall: Justice and Sheriff, 125, 619. 'Manifestly the permissibility of such inconsistent pleas prevents the plea of justification from being evidence in the plaintiff's favor on the plea of not guilty * * *.' Shallcross v. West Jersey &c. Co., 75 N.J.L. 395, 396, 67 A. 931.

The defendants' motion for leave to plead self-defense presented the question of what justice required under the circumstances then existing. It could be granted if necessary for the prevention of injustice. Hardy v. Nye, 63 N.H. 612, 613, 3 A. 631. The plaintiff's objection was that to do so would produce injustice. The Trial Court was thus faced with a determination of whether justice required that the defendants be drprived of a possible defense, or that the plaintiff be subjected to a defense not pleaded before trial, or that the trial be discontinued.

The plaintiff argues that there was no evidence to show 'good cause' for granting the motion, and that there was an abuse of discretion. The provision of the rule by which late filing of a brief statement may be authorized 'for good cause shown' first appeared upon revision of the rule in 1947. Cf. 78 N.H. 691. The rule is still 'consistent with the laws,' R.L. c. 370, § 8, and its enforcement discretionary with the Court. Lehigh &c. Co. v. Keene Coal Company, 89 N.H. 274, 275, 197 A. 410. The requirement of 'good cause shown' serves to introduce the familiar standard of what justice requires. Jaques v. Chandler, 73 N.H. 376, 381, 62 A. 713.

By allowing the plea the Court found against the plaintiff, but further found that justice required imposition of terms by which the plaintiff might have a mistrial at his election. Throughout the questions were questions of fact for the Trial Court to decide. Its decision may be set aside only if unsupported by the record. Emerson v. Cobb, 88 N.H. 199, 202, 186 A. 12. See Twardosky v. New England Tel. & Tel. Company, 95 N.H. 279, 285, 62 A.2d 723, and cases cited.

In view of the plaintiff's evidence tending to establish that he was deliberately knocked from the running board, the defense which the defendants sought to present assumed major proportions. If the jury believed the plaintiff's evidence, the defendants' liability was a foregone conclusion unless self-defense could be established. The finding that loss of an important defense would be a greater penalty for belated pleading than the circumstances required cannot be held erroneous as a matter of law.

While the Court offered to discontinue the trial upon the ground of surprise to the plaintiff, the record indicates that the surprise arose from the lateness of the plea, rather than its nature. For reasons indicated, both parties must have been well aware before trial of the issues open upon the evidence. At the trial the plaintiff repeatedly inquired of his witnesses whether any threats had been made toward the defendant. His examination of the defendant disclosed the latter's motor vehicle report that the glass in the door of the truck had been kicked in. The defendant introduced without objection testimony that the truck was boarded by two men and met by four more lined 'directly across the road,' that they were there to stop trucks, that injunctions were shouted in abusive language, glass was pounded, and kicked in, and that the defendant kept the cab door locked because he 'figured [he] would get a beating if they got [him] out of the cab.' The plaintiff made no attempt to have this testimony excluded, or its use limited to the count in negligence. 'Though the plaintiff might have insisted that a brief statement of the defense in pleading was necessary in order to raise the issue, he 'by silence waived objection at the trial'', Bogrett v. Hromada, 91 N.H. 351, 353, 19 A.2d 432, 433, at least until the motion was offered after the evidence had closed. 'The defendants could fairly infer * * * that the admissibility of their defense under the general issue was not contested.' Lyons v. Child, 61 N.H. 72, 74. See also, Folsom v. Brawn, 25 N.H. 114, 121, 122.

The finding that the defendants should be permitted to plead upon the terms fixed by the Court was not unwarranted. Martel v. White Mills, 79 N.H. 439, 443, 111 A. 237. 'Competing considerations are involved in such a determination.' Lewellyn v. Follansbee, 94 N.H. 111, 114, 47 A.2d 572, 573. We cannot say that it was...