McDonald v. Elkins

• Decision Date: 01 September 1936
• Citation: 187 A. 725
• Parties: McDONALD et al. v. ELKINS.
• Court: New Hampshire Supreme Court

187 A. 725

McDONALD et al.

v. ELKINS.

Supreme Court of New Hampshire. Merrimack.

Sept. 1, 1936.

As Amended Oct 6, 1936.

Exceptions from Superior Court, Merrimack County; Scammon, Judge.

Case by Ronald McDonald and by Josephine McDonald, against Bernice M. Elkins. On exceptions by plaintiffs.

Judgment for defendant in the action by Josephine McDonald.

Case to recover for personal injuries alleged to have been sustained by the plaintiff in a collision between the automobile in which she was riding and an automobile operated by the defendant. The accident occurred on July 24, 1932, at the intersection of Union and Webster streets in Manchester. Trial by jury and verdict for the defendant. The case was combined for trial with an action brought by Ronald McDonald, the plaintiff's husband, to recover for the loss resulting to him, in which a verdict was returned in his favor for $193, which is found to be "the exact amount expended by him for medical expenses incurred in treatment of the alleged injuries of his wife."

The plaintiff in each action moved that the verdict in that particular action be set aside because the findings and verdicts in the actions were each inconsistent with the other. In the husband's case the defendant moved to set aside the verdict because it was contrary to the law and the evidence and the weight of the evidence, and because the jury fell into a plain mistake. The motion in Mrs. McDonald's action was denied subject to her exception. The defendant's contention in the husband's action was sustained and the verdict set aside subject to Ronald McDonald's exception "to the findings and ruling made." The plaintiff also excepted to a portion of the charge relating to damages.

Bill of exceptions allowed by Scammon, J.

Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiff.

Murchie, Murchie & Blandin, of Concord, for defendant.

MARBLE, Justice.

Although the findings in Ronald McDonald's action are printed in the bill of exceptions, that case is not before this court, except as the findings therein are essential to a clear understanding of the trial court's decision.

Mrs. McDonald's care at the time of the accident is not in question, and the only issues submitted to the jury were the negligence of the defendant and the damage sustained by each plaintiff.

In denying Mrs. McDonald's motion the presiding justice finds it to be more probable than otherwise that his instructions were followed, and affirms that there was evidence from which the jury could have found that, although the defendant was negligent, Mrs. McDonald was not injured. The order setting aside the verdict in favor of Ronald McDonald is preceded by a finding that the jury, as in the wife's case, obeyed the instructions, but were misled thereby, since the court failed to inform them that the husband's right to recover was dependent upon a finding that it was more probable than otherwise that the plaintiff received injuries in the accident.

The defendant was not an experienced driver, and at the trial her counsel declared that there was "no disposition on her part to say that she ought not to pay a reasonable amount" for the damage she had caused, although her conduct probably did not constitute "real negligence." "* * * It certainly wasn't Mrs. McDonald's fault," counsel conceded in his argument to the jury, "and Mrs. Elkins isn't trying to get out of the consequences, whatever they may be. The real question is what damage she did."

In denying the plaintiff's motion the presiding justice states:

"* * * From the evidence of the plaintiff and others the jury could have found that the defendant at the moment of impact was traveling at a very slow rate of speed and struck the left rear wheel of the McDonald car a glancing blow not with sufficient force to move the front end; that Mrs. McDonald who was sitting on the right-hand front seat was not moved from her seat and her arm remained on the window sill where it was at the time of the collision; that she got out of the car while her husband had the rear tire replaced and returned to Concord without making any complaint; that she had had a vaginal trouble a few years before, and that the different complaints she...