Meloon v. Read

• Decision Date: 06 January 1905
• Citation: 73 N.H. 153,59 A. 946
• Parties: MELOON v. READ et al.
• Court: New Hampshire Supreme Court

59 A. 946

73 N.H. 153

MELOON

v. READ et al.

Supreme Court of New Hampshire. Carroll.

Jan. 6, 1905.

Transferred from Superior Court; Stone, Judge.

Action by Walter N. Meloon against Milton Read and Fred Nelson. Verdict for plaintiff. Transferred, subject to exceptions by Read. Exceptions overruled.

A verdict had been ordered for Read on the count in trespass at a former trial. Before this trial began, he seasonably moved for a separate trial, on the ground that the action was in fact an action of trover against both defendants, joined with one in trespass against Nelson, and that he ought not to be compelled to try the action in which he and Nelson were joint defendants with an action of trespass against Nelson alone. The motion was denied, subject to Read's exception. At the close of the evidence a verdict was ordered for Read on the count in trespass, and for Nelson on the count in trover.

Read owned woodland which adjoined the plaintiff's close, and employed Nelson to remove the timber. While doing this, Nelson cut the logs in controversy. As soon as he discovered his mistake he telephoned to Read, who, he said, directed him to haul the logs out. Read said he gave no instructions, except to keep the plaintiff's logs separate from his timber. The court instructed the Jury, in substance, that if Read did not direct Nelson to haul the plaintiff's logs out or to do anything else to them except to keep them separate, their verdict would be for him; but if he directed Nelson to haul them out for the purpose of exercising a dominion over them inconsistent with the plaintiff's rights, their verdict would he for the plaintiff. Read requested the following instructions: (1) That a verdict be returned in his favor; (2) that he was liable for nominal damages only; (3) that if he instructed Nelson to haul the logs out, or (4) advised him to do so, that would not constitute a conversion of them. The court refused to give these instructions, and denied Read's motion to set the verdict aside because the damages were excessive, and to these rulings Read excepted.

Josiah H. Hobbs, for plaintiff.

Arthur O. Puller, for defendant Read. Arthur L. Foote, for defendant Nelson.

PARSONS, C. J. If the court set aside Read's verdict before proceeding with this trial, as might have been done if it appeared justice required that the whole case should be tried de novo, the only question raised by Read's exception to the denial of his motion for a separate trial is whether he had a right to one as a matter of law, because of the verdict for him on the count in trespass ordered at the first trial. The counts in the declaration were properly joined (Farnum v. Power Company, 69 N. H. 231, 45 Atl. 745), and charged Read and Nelson with the commission of a joint tort; and, if this verdict were set aside, the case stood as though it had never been tried. Joint trespassers are not entitled to separate trials as matter of law. Eimes v. Stevens, 26 N. H. 117, 121; Bell v. Woodward, 32 N. H. 64, 69; Owen v. Weston, 63 N. H. 599, 604, 4 Atl. 801, 56 Am. Rep. 547. If the verdict ordered for Read was not understood to have been set aside before this trial began, there was nothing to submit to the jury on this count against Read, and no question for trial. The presentation of the case to the jury, and the direction to them to find a similar verdict, would appear to establish that the presiding judge understood that the verdict ordered was not in force, although the case does not show any formal order setting it aside. As, before the case was submitted to the jury, they were directed to find Read not guilty, he suffered no legal harm by the presentation of the case a second time upon that issue to the jury. There is nothing in the case tending to show that...