Moulton v. Langley

• Decision Date: 06 November 1923
• Citation: 124 A. 70
• Court: New Hampshire Supreme Court
• Parties: MOULTON v. LANGLEY et al.

124 A. 70

MOULTON

v. LANGLEY et al.

Supreme Court of New Hampshire. Rockingham.

Nov. 6, 1923.

Exceptions from Superior Court, Rockingham County; Allen, Judge.

Action by Frank A. Moulton against Charles S. Langley and Mary E. Langley. The last-named defendant's motion for nonsuit was overruled, and she excepts. The defendants' motion to set aside the verdict as to liability was denied, and they except. Exceptions sustained, last-named defendant's motion for nonsuit granted, and case discharged.

Case for negligence. Trial by jury. Verdict of $300, for the plaintiff, set aside as to damages. Exception by the defendants to the denial of their motion to set aside the verdict as to liability.

The plaintiff was injured by the collision of two automobiles in one of which he was a passenger. The machine in which he was riding was driven by its owner, one McCullum, who also brought suit against the defendants for damage to his automobile. The two cases were tried together and a verdict returned for the defendants in the latter suit.

The order on the motions to set aside the plaintiff's verdict was as follows:

"Consideration being given to the facts that the jury before being discharged orally stated that they found both automobile drivers negligent, that there was no evidence (aside from the inadequacy of the verdict for this plaintiff) that they or any of them considered the defendant free from blame, and that an appeal was made to the jury in effect for sympathy for the defendant, it does not appear that the misconduct of the jury affected the issue of liability, but it does appear that the jury disregarded only the instructions about damages. Evidently the appeal not to take 'hard-earned money' from the defendant was responsively treated. The verdict is admittedly inadequate, and it is set aside as to damages. The motion to set it aside as to liability is denied."

Defendant Mary E. Langley excepted to the denial of her motion for a nonsuit. There was a special finding of the jury that "at the time of the collision the defendant Charles was driving Mary's automobile as her agent." A statement of the evidence upon which the finding is predicated appears in the opinion.

Ernest L. Guptill and John L. Mitchell, both of Portsmouth, for plaintiff.

William H. Sleeper, of Exeter, for defendants.

SNOW, J. The practice in this state, when a new trial is granted, does not require a retrial of the issues in which no error was committed, if these issues can be separated from the ones in which the error occurred. Lisbon v. Lyman, 49 N. H. 553, 582605; Piper v. Railroad, 75 N. H. 435, 446, 75 Atl. 1041; McBride v. Huckins, 76 N. H. 206, 213, 81 Atl. 52; Doody v. Railroad, 77 N. H. 161, 166, 89 Atl. 487, Ann. Cas. 1914C, 846; Morin v. Mfg. Co., 78 N. H. 567, 570, 103 Atl. 312.

The misconduct of a jury in returning a verdict for an unreasonably small sum, in disregard of the evidence and of the instructions of the court, is presumed to extend to the issue of liability in the absence of satisfactory evidence of facts occurring at the trial from which it can be found that it was due to other causes. Doody v. Railroad, supra, 166, 167 (89 Atl. 487). The defendants' exception to the denial of their motion to set aside the verdict as to liability therefore raises the question whether there was sufficient evidence to support the court's finding that the misconduct of the jury was due to a cause which did not affect the question of liability. The evidence upon which this finding is based consists of (1) the apparent responsive treatment by the jury of the appeal for sympathy by defendants' counsel in argument and (2) the statement by the jury, upon interrogation before discharge, that they found both automobile drivers negligent.

The questions first presented are whether the presiding justice could treat the overpersuasiveness of argument as a fact occurring at the trial bearing upon the issue as to the cause of the mistrial, and, if so, whether such evidence might be found sufficient to warrant the finding that it, and not a compromise upon the question of liability, accounts for the smallness of the verdict so as to take the case out of the rule in Doody v. Railroad, supra.

No exception was taken to the argument of defendants' counsel, and it is too late to raise the issue of its impropriety as a matter of law. The absence of an exception to prejudicial argument does not, however, deprive it of evidentiary value upon an issue of fact properly raised to which it is material. It has been pointed out in numerous recent cases that the duty of dealing with argument which would not be held prejudicial or improper as a matter of law rests with the justice who presides at the trial. Girard v. Railroad, 78 N. H. 406, 408, 100 Atl. 1057, and cases cited; State v. Ketchen, 80 N. H. 112, 114 Atl. 20. This means that he has power to set aside a verdict because of such argument; and such action on his part in turn implies that he finds that because of the argument an unfair result was reached in favor of the offending party. The rule that the presiding justice may find that a verdict was produced by such argument is well established, and is merely an instance of the application of the general principle that it is the duty of a judge who has presided at a trial to set aside a verdict when he finds upon competent evidence that because of partiality, prejudice or mistake justice has not been done.

In the Doody Case, there was no evidence that the error was chargeable to anything that occurred in the trial before the jury retired. On the other hand, it appeared that the error occurred while the jury was deliberating upon their verdict, and was solely the result of their perverseness. It followed as a reasonable inference that the jury compromised their differences as to the defendant's liability by returning an inadequate sum for the damages. In the present case, it is conceded that a wrong verdict was rendered, and defendants' motion raises the question as to what produced it. In the absence of any fact to show otherwise, it would be presumed...