Twarog v. Amoskeag Mfg. Co.

• Decision Date: 01 March 1921
• Docket Number: No. 1705.,1705.
• Citation: 113 A. 224
• Parties: TWAROG v. AMOSKEAG MFG. CO.
• Court: New Hampshire Supreme Court

113 A. 224

TWAROG

v. AMOSKEAG MFG. CO.

No. 1705.

Supreme Court of New Hampshire. Hillsborough.

March 1, 1921.

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

Action by Wodjieck Twarog against the Amoskeag Manufacturing Company. There was a trial by jury, and verdict for the defendants. The plaintiff filed a motion "to set aside the verdict and for a new trial on the ground that the verdict is against the law and the evidence because the jury was misled by errors in instruction and evidence admitted and excluded in the trial." The motion was denied, and the plaintiff then filed a bill of exceptions as follows: "The plaintiff excepts to the denial of motion to set aside the verdict." Exceptions overruled.

James E. Banigan and Osgood & Osgood, all of Manchester, for plaintiff.

Warren, Howe & Wilson and Louis A. Thorp, all of Manchester, for defendants.

PLUMMER, J. As the plaintiff's bill of exceptions is understood, he seeks to have the verdict set aside by reason of errors in the court's instructions and in the admission and exclusion of evidence. None of the evidence has been transferred; therefore, if any exceptions were taken to the admission or exclusion of evidence, they are not before us.

An examination of the record discloses that an exception was taken by the plaintiff to an instruction of the court, which related solely to damages. The jury, having found that the defendants were not liable, "had no occasion to consider the question of damages." Therefore, if the court's instruction in reference to damages was incorrect, it was immaterial. Kuba v. Devonshire Mills, 78 N. H. 245, 99 Att. 91; Woodbury v. Whiting, 68 N. H. 607, 44 Atl. 385: Wier v. Allen, 51 N. H. 177, 180. Consequently there is no reason to consider whether the instruction to which exception was taken was erroneous. "A verdict is not set aside for an error which the course of the trial renders immaterial." Kuba v. Devonshire Mills, supra; Beckley v. Alexander, 77 N. H. 255, 257, 90 Atl. 878.

Exceptions overruled.

PEASLEE, J., did not sit The others concurred.