St. Pierre v. A. J. Foster & Co.

• Court: New Hampshire Supreme Court
• Writing for the Court: PARSONS, C. J.
• Citation: St. Pierre v. A. J. Foster & Co., 70 A. 289, 75 N.H. 10 (N.H. 1908)
• Decision Date: 02 June 1908
• Parties: ST. PIERRE v. A. J. FOSTER & CO.

70 A. 289

75 N.H. 10

ST. PIERRE

v. A. J. FOSTER & CO.

Supreme Court of New Hampshire. Hillsborough.

June 2, 1908.

Transferred from Superior Court, Hillsborough County; Peaslee, Judge.

Petition by Albert St. Pierre against A. J. Foster & Co. for a new trial. Transferred on exception to the denial of the petition, Exceptions sustained and petition granted.

See 74 N. H. 4, 64 Atl. 723.

The plaintiff was not in fault for the non-production of the evidence, the want of which vitiated the former verdict in his favor. This evidence can be supplied, and in such case it is likely a jury will find a verdict for the plaintiff sustainable upon the law. It appeared to the court that the jury ought to find a verdict for the defendants; and, because of this view of the weight of the evidence, it was found that justice does not require a further hearing, and the petition was denied. If this view is erroneous, the motion should have been granted.

Hamblett & Spring and Branch & Branch, for plaintiff.

Burnham, Brown, Jones & Warren, for defendants.

PARSONS, C. J. The verdict which the plaintiff obtained against the defendants was set aside, and a verdict and judgment were ordered for the defendants upon the ground that no evidence was offered upon an issue necessary for the plaintiff to prove to establish the defendants' liability. St. Pierre v. Foster, 74 N. H. 4, 64 Atl. 723. The plaintiff now asks for an opportunity to try this issue. It is found that the plaintiff was not in fault for not presenting evidence upon this issue at the former trial, and that, if a trial is permitted, the jury will probably find for the plaintiff a verdict sustainable upon the law. The facts that the plaintiff has, without fault, lost the right to try a material issue, and that, if tried, the issue may be decided in his favor, authorize a finding that justice requires a further trial. Such is the rule, not only in petitions for a new trial after verdict and judgment (Pub. St. 1901, c. 230, § 1), but in the analogous cases where a right to a trial upon appeal from the decision of the probate court has been lost without fault (Pub. St 1901, c. 200, §§ 7, 9), or where the right to the trial of a highway traveler's claim against a town has been lost in like manner by failure to give the necessary notice (Pub. St. 1901, c. 76, §§ 8, 9).

The grounds upon which applications of this kind should be granted or denied are set forth in the numerous cases cited in Bolles v. Dalton, 59 N. H. 479, 480. None of the statutes have been construed as requiring two trials upon the merits. It has been considered sufficient, upon an application for relief, for the petitioner to show that he possessed a right to a trial of a particular sort, that he has lost the right without fault, and the existence of evidence upon which the tribunal, the right to whose decision he has lost, might properly find in his favor. As said of the application for leave to appeal from a probate decision: "The construction given this provision of the statute is that if there are important questions at issue which the petitioner in good faith desires and intends to try, and some evidence is offered to sustain the reason for the appeal, the leave to appeal will be granted without deciding the merits of the controversy." Holton v. Olcott, 58 N. H. 598, 599. As to the highway statute, under which the right to a trial is given upon similar grounds, it is said: "Evidence sufficient to authorize the submission of the plaintiff's case to the jury will sustain the requisite finding of 'manifest injustice.' The questions of law and fact which the plaintiff desires to litigate are not ordinarily determined upon the preliminary petition. It is sufficient if it appears that there are important questions which, through accident, mistake, or misfortune, the plaintiff will be unable to try unless the petition is granted." Owen v. Derry, 71 N. H. 405, 406, 52 Atl. 920, 927. "The general rule is that, when it appears that a trial has not been had by reason of accident and misfortune, the court will give the party an opportunity for a trial without inquiring into the merits of the controversy. That...