Trudeau v. Manchester Coal & Ice Co.

• Decision Date: 01 June 1937
• Citation: 192 A. 491
• Parties: TRUDEAU v. MANCHESTER COAL & ICE CO. BULFINCH v. SAME.
• Court: New Hampshire Supreme Court

192 A. 491

TRUDEAU

v. MANCHESTER COAL & ICE CO.

BULFINCH

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

June 1, 1937.

Exceptions from Superior Court, Hillsborough County; James, Judge.

Actions on the case for negligence by Helena G. Trudeau and by F. Lawrence Bulfinch against the Manchester Coal & Ice Company. A verdict was returned for defendant in the first action, and in the second a verdict was returned for plaintiff for part of the amount prayed for, and plaintiffs bring exceptions.

Judgments on the verdicts.

Two actions on the case, for negligence. The first is to recover for personal injuries, the second for personal injuries and property damage.

On the morning of December 14, 1929, the plaintiff Trudeau was riding as a passenger on the front seat of the plaintiff Bulfinch's automobile which he was driving in a northerly direction on Elm street in Manchester. As they approached the intersection of Concord street, the traffic lights were against them and Bulfinch brought his car to a stop. While waiting for the lights to change, the defendant's truck ran into the Bulfinch car from behind with sufficient force to impel it across the intersection. The streets were icy at the time.

The defendant did not contend that either plaintiff had been guilty of contributory negligence, but defended on the ground that the accident could not have been avoided due to the condition of the street, and that neither plaintiff had suffered substantial personal injury.

A trial by jury, after a view, resulted in a verdict for the defendant in the first action and one for the plaintiff in the second, the amount awarded in damages to that plaintiff being the exact cost of the repairs to his automobile.

Both plaintiffs then moved that the verdicts be set aside on the ground that they were inconsistent with one another; that they were contrary to the law and the evidence; that they resulted from a compromise of conflicting views as to liability; that the jury were actuated "by passion and prejudice or fell into plain mistake"; and, in the case of the plaintiff Bulfinch, that the damages awarded were inadequate.

The plaintiffs excepted to the denial of these motions and to the allowance of portions of the argument for the defendant.

Their bill of exceptions was allowed by James, J.

Robert W. Upton, of Concord, for plaintiffs. John J. Sheehan, of Manchester, for defendant.

WOODBURY, Justice.

The plaintiffs contend that mistake or misconduct on the part of the jury is a necessary inference because the verdicts are inconsistent, and, there being nothing to indicate in which the error occurred, that both must be set aside and a new trial in each case ordered under the doctrine enunciated in Hewett v. Aid Association, 73 N.H. 556, 561, 64 A. 190, 7 L.R.A. (N.S.) 496. This contention cannot be sustained.

Both actions were brought in case. They were brought not to vindicate a right but to recover compensation for negligently inflicted personal injuries and property damage and, consequently, resulting actual damage is an essential element of each. Chesley v. Dunklee, 77 N.H. 263, 265, 90 A. 965. Nominal damages have no place in actions of this sort. Failure on the part of either plaintiff to prove actual damage entitles the defendant to a verdict in the case in which such failure of proof occurs.

The plaintiffs do not seriously dispute the foregoing principles, but contend that the evidence conclusively establishes that they each sustained substantial personal injuries and that the defendant's counsel admitted as much in his argument to the jury. In consequence they argue that the jury must have been in error in returning a verdict for one plaintiff and not for the other, and, in the case of the plaintiff Bulfinch, in awarding him property damages only.

The only evidence of personal injuries came from the plaintiffs themselves. The plaintiff Bulfinch testified that, in addition to the damage to his automobile, he sustained a sprained neck and wrist and that these injuries were serious enough to interfere for several weeks with his performance of some parts of the work of his profession of dentistry. The plaintiff Trudeau testified she also sustained a sprained neck and that, in addition, the sudden impact with the automobile in which she was riding caused her jaws to close so violently that three teeth were injured to such an extent that they...