Salvas v. Cantin

• Decision Date: 03 May 1932
• Citation: 160 A. 727
• Parties: SALVAS v. CANTIN.
• Court: New Hampshire Supreme Court

160 A. 727

SALVAS

v. CANTIN.

Supreme Court of New Hampshire. Coos.

May 3, 1932.

Transferred from Superior Court, Coos County; Oakes, Judge.

Action by Leo Salvas, by his next friend, Thomas Salvas, against Armand Cantin. Verdict for plaintiff, and case transferred upon defendant's exceptions.

New trial ordered.

Case for personal injuries resulting from an automobile accident. Trial by jury, and verdict for the plaintiff.

The accident happened at Lewiston, Me., about midnight on September 19, 1930, and the case was tried under the Maine law. The plaintiff was a passenger or guest in the defendant's car and was asleep at the time he was injured. The defendant, who was driving the car, also fell asleep and the car ran into a tree.

Transferred by Oakes, J., upon the defendant's exceptions to the allowance of certain portions of the argument of plaintiff's counsel, to the denial of a request for instructions, to the charge, and to the denial of defendant's motion to set aside the verdict as against the law.

The defendant seasonably requested the court to instruct the jury as follows: "In order for the plaintiff to recover in this case it must appear that he was in the exercise of due care at the time of the accident and that the defendant was negligent. One riding as a passenger or guest may not place his safety entirely in the keeping of the driver but he must exercise due and reasonable care for his protection. (Humphrey v. Hoppe, 128 Me. 92, 95, 145 A. 748.)"

Upon the question of contributory negligence the court charged the jury as follows:

"If the plaintiff did fail to use due care,—that is, if he failed to use such care as the ordinary prudent man would have used under the circumstances to protect himself,—he would not be entitled to recover in this action even though the defendant was also negligent: for no man is entitled to recover for an injury such as this to which his own fault in any degree contributed. As bearing on his due care, you may take into consideration the kind of a night this was, the visibility, the amount of fog, the character of the road, the amount of traffic, the plaintiff's knowledge of the defendant's ability as a driver,—whether experienced or not, whether careful or reckless,—and any other fact which in any way would tend to prove either that the plaintiff might or might not, in the exercise of ordinary care, have relied on the driver and have gone to sleep.

"It is for you to say whether or not the plaintiff in going to sleep exercised that due and reasonable care for his protection which is necessary in order for him to recover in this case. In this connection you may consider whether or not the plaintiff knew that the defendant was sleepy and you may also consider the fact of whether or not the plaintiff knew that this was a new road to the defendant over which he had not travelled before this trip."

Other facts are stated in the opinion.

Matthew J. Ryan and Crawford D. Honing, both of Berlin, for plaintiff.

Warren W. James, of Berlin, and - Prank T. Powers, of Lewiston, Me., for defendant.

BRANCH, J.

1. During the argument of plaintiff's counsel to the jury, exception was taken as follows:

"Mr. Ryan: * * * He (Mr. Powers) told him (the defendant) he was representing an insurance company; but after the tactics they displayed during this trial I don't know what tactics Mr. Powers performed over there before Mr. Cantin. For all we know— although it isn't in evidence—he might have told him that 'If you fell asleep or if you were going fast you're liable to criminal prosecution, and the Commissioner of Motor Vehicles in the state of Maine can write to the Commissioner of Concord and have your license revoked.'

"Mr. James: I object to that argument. There's no such evidence.

"The Court: Exception noted.

"Mr. Eyan: I say there's no evidence of it, but I say such a conversation might have been possible. I won't say that it took place, because we have no evidence; but he told him the same story about the dog * * * "

Reference was here made to a statement made by the defendant a few days after the accident in which he said that the collision with the tree resulted from his efforts to avoid running over a dog. There was much evidence tending to show that the "story about the dog" was invented by the defendant because, he feared criminal prosecution and the loss of his driver's license. Therefore the only objection which can be urged against the foregoing argument is that the jury was asked to infer from the "tactics" of the defendant's counsel during the trial that this danger was suggested by counsel to the defendant. We find in the record no evidence of any conduct or "tactics" on the part of counsel which would justify a specific inference of this kind, and it was conceded that there was no other evidence upon which it could be based. We, therefore, have to deal with a case in which an inference of fact unwarranted by evidence was urged upon the jury.

It has sometimes been stated without qualification that a verdict will not be set aside on account of such an argument. Potter v. Moody, 79 N. H. 87, SS, 104 A. 889; Voullgaris v. Gianaris, 79 N. H. 408, 109 A. 838; Gosselin v. Company, 78 N. H. 149, 97 A. 744; Turner v. Company, 75 N. H. 521, 77 A. 999; Mitchell v. Railroad, 68 N. H. 96, 34 A. 674. But the true rule is now well settled that the assertion of an inference unwarranted by evidence will not compel the setting aside of a verdict unless it receives the express or tacit sanction of the court. Maravas v. Corporation, 82 N. H. 533, 536, 136 A. 364: Lafferty v. Houlihan, 81 N. H. 67, 77, 121 A. 92; State v. Ketchen, 80 N. H. 112, 114 A. 20; Tuttle v. Dodge, 80 N. H. 304, 314, 116 A. 627: State v. Small, 78 N. H. 525, 530, 102 A. 883.

Exceptions of this kind, although commonly called exceptions to argument, in reality involve, not the conduct of counsel in making the argument, but the action of the court in permitting it to stand (State v. Ketchen, supra), and, in the absence of differentiating circumstances, the allowance of an exception must be regarded as an implied sanction of the argument (State v. Wargo, 83 N. H. 532, 535, 145 A. 456). Differentiating circumstances which may justify a contrary conclusion are Illustrated In Maravas v. Corp'n, supra, where the court ordered an exception to be noted, but expressly postponed ruling upon the propriety of the argument; in Lafferty v. Houlihan, supra, where the court allowed an exception, but expressed emphatic disapproval of the argument; and in cases like Tuttle v. Dodge, supra, where an exception was claimed, but not expressly allowed by the presiding justice.

No circumstances of this character are present in the case at bar. The definite objection of the defendant was plainly overruled by the order that an exception be noted, and by permitting the argument to stand the court impliedly sanctioned the inference which counsel urged upon the attention of the jury. Plaintiff's counsel, in making this argument, must have intended to accomplish some result favorable to his client. The fact which the jury was thus asked to infer was of that class which has a general tendency to discredit the opponent's case, although not logically material to any of the essential issues involved. Stocker v. Railroad, 84 N. H. 377, 379, 151 A. 457; Doe v. Lucey, 83 N. H. 160, 162, 139 A. 750; Duval v. Company, 82 N. H. 543, 546, 136 A. 400, 50 A. L. R. 1276; Masterson v. Railroad, 83 N. H. 190, 194, 139 A. 753; Login v. Waisman, 82 N. H. 500, 502, 136 A. 134. For this reason it was prejudicial. Since counsel sought to establish this fact by unlawful...