Whitcher v. Union Grange Fair Ass'n

• Decision Date: 01 December 1914
• Citation: Whitcher v. Union Grange Fair Ass'n, 92 A. 735, 77 N.H. 405 (N.H. 1914)
• Parties: WHITCHER v. UNION GRANGE FAIR ASS'N.
• Court: New Hampshire Supreme Court

92 A. 735

77 N.H. 405

WHITCHER

v. UNION GRANGE FAIR ASS'N.

Supreme Court of New Hampshire. Belknap.

Dec. 1, 1914.

Transferred from Superior Court, Belknap County; Pike, Judge.

Action by Mary E. Whitcher against the Union Grange Fair Association for negligence. A verdict was rendered for plaintiff, and the case was transferred from the superior court. Exceptions overruled.

During the trial a witness testified that the plaintiff resided in Grafton county, where the defendant had its sole place of business. Thereupon the defendant moved that the case be transferred to that county, and offered to prove that the plaintiff resided there, and that the defendant and its counsel were justifiably ignorant of the facts until that time. The court declined to hear the evidence and denied the motion, and the defendant excepted.

The negligence complained of was in improperly erecting and caring for a tent, by reason whereof it fell and injured the plaintiff. The defendant contracted with Wallingford & Acres to erect and take care of the tent, and one Acres was sent by the firm to do this work. The defendant contended that it had discharged its duty with respect to the condition of the tent by contracting with responsible parties for its erection and care.

In the closing argument for the plaintiff counsel said:

"I don't suppose that there is any rule claimed here that because they hired what they supposed to he competent men to put up these tents that they can say, 'It is Acres, and not us.' Whatever legal complications may come after in this case, if there are any, as to who might be responsible in another matter, don't concern us. You are to try this case on the evidence that is here, and on nothing else, and the courts take care of the hereafter in another and a different way if it becomes necessary."

The defendant excepted, and counsel continued:

"If in any way I have intimated that this association could in any way be helped out on any verdict that you render, I say to you here, as I intended to say before, that you have nothing to do with that whatever, and I don't know as there is anything of that sort."

The defendant excepted, the court inquired what the bearing of the remarks was, and counsel continued:

"They object. I told them they are to try this case on the law and evidence in this case; and whether there is anything between them and the tent company, as to whether they can get after the tent company or not, that thing they should not regard at all or consider in this case."

The defendant excepted "to the reiteration of the statement."

Owen & Veazey and Charles B. Hibbard, all of Laconia, for plaintiff.

Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant.

PEASLEE, J. The plaintiff's claim, that a change of venue because an action has been brought in the wrong county can only be had at the plaintiff's option, is not well founded. Instead of dismissing such a suit for want of jurisdiction, the court may transfer it to the proper county without any request from the plaintiff that such action be taken. Wheeler & Wilson Mfg. Co. v. Whitcomb, 62 N. H. 411. The order is made only when required by justice. Bartlett v. Dee, 60 N. H. 168. There is no sound reason why a defendant may not ask for the relief which justice will afford him, rather than for an unreasonable and unattainable defeat of the whole suit upon a collateral plea. Knowing that on the facts in the case he is entitled to a transfer and to nothing more, the nontechnical procedure in this state permits him to ask for it directly. He is not required to demand an unconscionable advantage in order to be granted the lesser one to which he is justly entitled.

But while the defendant may seek such relief, it does not follow that in seeking it he is...