Sirois v. Laquerre

• Decision Date: 30 November 1960
• Citation: 103 N.H. 113,165 A.2d 587
• Parties: Marcel SIROIS v. Robert H. LAQUERRE et al.
• Court: New Hampshire Supreme Court

Page 587

165 A.2d 587

103 N.H. 113

Marcel SIROIS v. Robert H. LAQUERRE et al.

Supreme Court of New Hampshire.

Argued Nov. 3, 1960.

Decided Nov. 30, 1960.

SYLLABUS BY THE COURT

1. Where certain argument of counsel to the jury, commenting with respect to testimony by a medical expert as to what he "intended" to charge as a witness fee, querying whether "he was to get more or less depending upon the appreciation and generosity of the defendants' attorney, " was stricken and the jury explicitly directed by the Court to disregard it, and the argument was withdrawn by counsel and the Court found that the verdict was not affected by it, denial of a motion for mistrial did not constitute reversible error.

2. So also where other argument that the plaintiff in a tort action "had six mouths to feed," which might be considered a proper explanation of plaintiff's continuance in his employment despite the pain which he claimed to have suffered was likewise withdrawn and precautionary instructions were given the granting of a motion for mistrial was not required as a matter of law.

Case, for negligence to recover for personal injuries sustained by the plaintiff as a result of a fall suffered on January 8, 1956, while he was engaged with the defendants in the construction of a home for them in Merrimack. Trial by jury with a verdict for the plaintiff. In the course of the trial the defendants took certain exceptions to denial of their motions for mistrial made during argument to the jury by counsel for the plaintiff. After the verdict, they excepted to the denial of their motion to set the verdict aside. The issues presented by these exceptions were reserved and transferred by the Presiding Justice (Morris, J.). The facts are stated in the opinion.

Earley & Flynn and Margaret Q. Flynn, Nashau (Margaret Q. Flynn, Nashau, orally), for plaintiff.

Wiggin, Nourie, Sundeen, Nassikas & Pingree and Dort S. Bigg, Manchester (Dort S. Bigg, Manchester, orally), for defendants.

DUNCAN, Justice.

A major issue at the trial was whether the plaintiff sustained permanent injury to his back as a result of the fall which he suffered. Dr. Friborg, whom the plaintiff called as a witness, testified that he did suffer permanent injury. Upon cross-examination the doctor explained the plaintiff's failure to seek 'medical relief of some kind from somebody before a year and eight months had elapsed' after his discharge by another physician, by answering that the plaintiff could 'stand pain, I am sure, better than most of us would.'

Dr. Sullivan, called by the defendants, testified that on September 14, 1956 he had examined the plaintiff for the defendants and that his examination disclosed no abnormalities; that any pain which the plaintiff had suffered in August and September was not caused by the accident; and that the plaintiff had completely recovered from any injury which resulted from it.

On cross-examination this witness testified that he 'couldn't find' any source of the complaints which the plaintiff had made in August and September; that he had examined him for the purpose of testifying and was paid for the examination; and that for appearing as a witness he was 'getting an expert's fee.' To the question 'How much are you getting?' he answered: 'It has been my intention to send a bill in the amount of fifty dollars.'

In argument to the jury plaintiff's counsel referred to the cross-examination of Dr. Sullivan, and commented with respect to the answer that he 'intended' to charge fifty dollars: 'It would appear conjectural from what he said as to whether he was going to get more or less depending upon the appreciation and generosity of defendants' counsel.' Opposing counsel interjected: 'I think that certainly is most unfair argument.' The Trial Court immediately ruled: 'It may be stricken'; and directed the jury to disregard it. Plaintiff's counsel then withdrew the argument, and continued: 'What sort of examination do you suppose this hired doctor performed on the plaintiff if he was doing it to come in here and testify for the defendant?'

At this point defendants' counsel stated, 'I will have to move for mistrial.' The Trial Court however instructed the jury to 'disregard' the argument and 'strike it from your minds and pay no attention * * * withdraw it from your minds.' After further colloquy the substance of these instructions was reiterated and the jury was told to 'disregard the inference that was made.' No exception was taken by the defendants to what thus transpired.

Plaintiff's argument proceeded, and a second motion for mistrial was made following certain argument which defendants' counsel asserted was 'not substantiated by the evidence.' Since the exception to denial of this motion has not been briefed or argued in this court, it is considered waived.

Following completion of the arguments, in the course of discussion of still a third motion for mistrial described below, defendants' counsel referred to his 'motion for mistrial' with respect to 'the inference drawn from Doctor Sullivan's being paid' and stated that he was 'claiming an exception there.' The Court then ruled 'I will deny your * * * motion and save your exception.'

In submitting the case to the jury the Court instructed them that if counsel had misquoted the evidence to 'dismiss it from [their] minds' and take their own recollection of it. The jurors were also instructed to decide the case 'not on the basis of sympathy or prejudice' but according to the evidence, and the law as given by the Court.

The first motion for mistrial, which followed the argument concerning the nature of Dr. Sullivan's examination of the plaintiff, was referred to when renewed as 'the motion * * * on the ground of the * * * inference drawn from Doctor Sullivan's being paid.' Interpreting the motion as extending to both portions of the argument concerning Dr. Sullivan, we nevertheless are of the opinion that no ground for new trial is presented.

The defendants have argued in this court that the first portion of the argument, which was withdrawn, implied a charge of subornation of perjury, or suggested that the witness had perjured himself in response to some undertaking by counsel to pay a fee measured by the favorable effect of the testimony. It is doubted...