Roberts v. Claremont Power Co.
| Decision Date | 06 November 1917 |
| Citation | 102 A. 537,78 N.H. 491 |
| Parties | ROBERTS et al. v. CLAREMONT POWER CO. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Sullivan County.
Action by John Roberts and another against the Claremont Power Company. Motion to set aside the report of commissioners to assess damages denied, and defendant excepts, and exceptions transferred from superior court. Exceptions overruled.
Case for polluting the waters of Sugar river. The defendant was defaulted, and by agreement of parties the damages were assessed by commissioners. The damage consisted of injuryito cloth made in the plaintiff's mill, and during the hearing before the referees it appeared that his father, Alexander Roberts, owned the business for a part of the time covered by the declaration, the specification of damages, and the evidence. Thereupon the plaintiff moved that the administrator of Alexander's estate be added as a party plaintiff. The motion was granted by Sawyer, J., and the defendant excepted, upon the ground that the amendment brought in a new and separate cause of action.
The commissioners were not sworn. The defendant requested them to find when it would first have occurred to a reasonable man to avoid future damage by installing a pipe to take water from the fore bay. The commissioners refused to so find upon the ground that they were not expected to offer their opinion upon the subject.
The defendant's motion to set the report aside for these reasons was denied by Branch, J., because the defendant's failure to make reasonable inquiry as to the oath of the commissioners constituted a waiver, and because the requested finding would not have been conclusive on any issue in the case. The defendant excepted, and these exceptions, together with a question of evidence which is stated in the opinion, were transferred from November term, 1916, of the superior court.
Hurd & Kinney, of Ciaremont (H. N. Hurd, of Claremont; orally), for plaintiffs. Stickney, Sargent & Skeels, of Ludlow, Vt, and Philip H. Faulkner, of Keene (Homer L. Skeels, of Ludlow, Vt., orally), for defendant.
The objection that the commissioners had not been sworn was one that could and would have been seasonably obviated if it had been seasonably taken. If the defendant had made reasonable inquiry, the fact would have been ascertained. Under these circumstances the rule applicable to the objection to jurors for disqualification controls.
"The general rule derived from the cases is that, if the party has used reasonable diligence to ascertain the competency of a juror, and has failed to discover disqualifying facts afterwards proved, * * * the verdict will be set aside; otherwise not." Harrington v. Railroad, 62 N. H. 77, 79.
The defendant relies upon Ela v. McConihe, 35 N. H. 279. The case sustains the contention, but rests upon a mistaken view of the reason why relief is denied in such cases. It adopts the theory that, unless the party is put upon inquiry, he may take the objection at a later stage of the proceedings. But, the rule being that one who wishes to object must act with diligence, Ela v. McConihe is not now the law. The later eases are numerous, and are based upon a rational idea of a procedure calculated to promote, justice and end litigation. Ready v. Gaslight Co., 67 N. H. 147, 36 Atl. 878, 68 Am. St. Rep. 642; Hersey v. Hutchins, 70 N. H. 131, 46 Atl. 33; Bickford v. Franconia, 73 N. H. 194, 60 Atl. 98.
The amendment adding the administrator of the estate of Alexander Roberts as a party was properly allowed. Unity v. Pike, 68 N. H. 71, 44 Atl. 78, and cases cited.
The defendant requested the commissioners to find when it would "first have occurred to a reasonable man that such a pipe would obviate any damage. * * *" The commissioners refused to so find, and the defendant excepted. There was no request for any other finding upon the issue of reasonable conduct on the part of the plaintiff. The defendant now argues that this was a request to find whether the plaintiff acted reasonably in the protection of his property from the pollution of the water caused by the defendant. It is manifest that the request falls far short of this. If the commissioners had found that it would at once have occurred to a reasonable man that a pipe would prevent ftirther damage, it would have settled nothing. The question whether a reasonable man would have thought it the proper course to take would be unanswered. No finding was asked on this question.
Assuming, therefore, that the law might require the plaintiff to take steps to avoid future damage because it was likely that the defendant would in the future continue its unlawful pollution of the water, there was no error in the course pursued by the commissioners. Presumably they correctly applied the law in the trial and decision of the case. Searles v. Churchill, 69 N. H. 530, 43 Atl. 184. If other special findings had been desired in order to show how the conclusions were reached, they should have been asked for. In the absence of such requests, the presumption applied in Searles v. Churchill is conclusive against the objecting party.
Certain memoranda, called sales sheets, were used by the plaintiff to assist his memory in testifying to the amount and price of damaged cloth he sold. It appeared that he shipped his product to Dommerich & Co., of New York, and that they sold it for him on commission. An employe of theirs examined the goods for defects, and reported to one Holmes, who also received and adjusted claims made by purchasers for discounts on account of damaged goods. From the data so obtained Holmes made up the discounts from regular prices at which the plaintiff's goods were sold. These figures he gave to one Miller, who entered them on Dommerich's books, and sent the sheets made up from the books to the plaintiff each month as the statement of his account with the selling house. Their accounts were settled on this basis. The evidence was objected to because neither the employe who examined the goods nor Miller was produced to verify the correctness of the statements. Holmes was a witness, and testified to his part in the transaction, and to the course of business which resulted in the sheets being sent to the plaintiff. One of the other participants in the transactions was dead, and the rest were out of the jurisdiction.
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