Opinion
No. 3024.
Decided February 7, 1939.
The argument of counsel that his opponent's vigorous defence on the issue of damages showed lack of confidence in his defence of non-liability is prejudicial and vitiates a verdict.
Where plaintiff's argument was ambiguous and susceptible of the foregoing meaning and also of meaning merely that the testimony of the opponent's witnesses was so unworthy of belief as to discredit not only themselves but those who employed them, an instruction to disregard the argument that "the making of a vigorous defence involves an admission of liability" should have been given on defendant's request.
Such request for instructions though made after argument has begun is permissible under Rule 52 of the Superior Court.
CASE, for negligence. Trial by jury and verdict for the plaintiff.
The record indicates that both the issue of liability and that of damages were warmly contested. On the latter issue counsel for the defendant put several medical experts on the stand and thoroughly cross-examined those called by the plaintiff. He also, for the purpose of showing that the plaintiff's claim of injuries was exaggerated, introduced the testimony of two special investigators who had been employed by him to observe and take motion pictures of the plaintiff's conduct and activities after the accident.
Near the beginning of his argument to the jury counsel for the plaintiff, after naming the special investigators and remarking that "the character of the defense may give an index to the character of the case against them," called the defendant by name and said, "he comes in here with special investigators and experts of different types and degrees, — because he is confident that he was in the right when this accident occurred? No. Because they realize that they were at fault in the accident, and they are trying to escape the consequences."
Then, about a third of the way through his argument, the following statement was made: "I can remind you in this connection that there hasn't been any real defense made in this case on liability. My Brother has stood up here and talked about the credibility of Mr. Ferris, and all the resources at the command of these gentlemen here have been centered into an attack on the credibility of Mr. Ferris. Does a man who is conscious that he is right, — that the accident was without his fault, — do the lawyers defending the case, the justice of which they know, unless conscious there is fault, go out and hire detectives and employ experts? It is for you to say."
At this point counsel for the defendant objected and asked the court to instruct the jury with reference to this statement "that that is not sound logic and not sound law." No instruction being given, counsel for the defendant requested and was allowed an exception.
At the close of the plaintiff's argument counsel for the defendant renewed the above request to charge, saying: "Mr. Upton argued that Mr. Saulnier is here because he is conscious of his responsibility or liability in this case. This is equivalent to an argument that the making of a vigorous defense involves an admission of liability." And further, "The vigor of a defense can no more be evidence of defendant's consciousness of guilt than can the bringing of a writ be argued as evidence of merit in plaintiff's case." This request being denied, counsel for the defendant took an exception.
Transferred by Lorimer, J.
Robert B. Hamblett and Robert W. Upton (by brief and orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell and Jeremiah J. Doyle (Mr. Wyman orally), for the defendant.
Counsel for the plaintiff contends that the portion of his argument to which objection was made was intended by him to have reference not to the hiring of detectives and experts in the abstract but to the hiring of the particular detectives and experts employed by the defendant, and that these men were shown by their own testimony, by their manner on the stand, and by evidence introduced to contradict them, to be persons so wholly unworthy of belief as to discredit not only themselves but also those who employed them. In other words, he contends that the statement objected to was only an elaboration of his previous assertion "that there hasn't been any real defense made in this case on the issue of liability," and that this remark being only "An assertion in argument, as a fact, of an inference fairly deducible from evidence is not a ground for setting aside a verdict." Roberts v. Hillsborough Mills, 85 N.H. 517, 524. Interpreted in this way the argument was clearly permissible, and we cannot say that the words used considered in their context are incapable of this meaning.
On the other hand, those words may also be interpreted as did the defendant. They can be taken to mean that a vigorous defense on the issue of damages warrants the inference that the defendant lacks confidence in his defence on the issue of liability. So interpreted, the argument is one not here permitted (Mann v. Company, ante 1) and, since the court allowed it to stand, it is sufficient to compel the setting aside of the verdict. Salvas v. Cantin, 85 N.H. 489, 491. Since this interpretation of the argument renders it prejudicial as a matter of law, "The denial of the motion to set aside the verdict because of prejudice does not help the plaintiff." Bruton v. Corporation, 87 N.H. 304, 305.
It is impossible to say which interpretation was put upon the remarks of plaintiff's counsel by the jury. Under these circumstances the defendant's requested instruction should have been given, (Maravas v. Corporation, 82 N.H. 533, 536 and cases cited) and the fact that the request was made after the arguments had begun does not justify the court in denying it under Rule 52 of the Superior Court. Nicholaides v. Wallace, 86 N.H. 465, 467.
There is no unfairness to counsel for the plaintiff in the above procedure. He knew at the time when his remarks were made of the interpretation put upon them by opposing counsel. He could then have explained to the jury what he meant by the words objected to, he could have withdrawn them and asked the court to instruct the jury to pay no attention to them, or he could have later joined in the defendant's requested instruction. But, instead of attempting in any way to correct a possible misinterpretation of his words of which he was promptly informed, he chose to remain silent. Under these circumstances he may not be heard to complain of an order granting the defendant a
New trial.
All concurred.