Opinion
No. 4771.
Argued November 3, 1959.
Decided December 1, 1959.
1. The question of whether, upon an order for a new trial, all issues must be retried in order to afford a fair trial is ordinarily one of fact for the determination of the Trial Court.
2. A retrial ordered for the correction of errors should be limited to that portion of the case which might have been affected, if the issues as to which no error occurred can be separated therefrom.
3. Where the Supreme Court upon consideration of defendant's exceptions on a prior transfer ordered a complete new trial, it was held as a matter of law upon a subsequent transfer that plaintiff was not entitled to a retrial of certain issues, clearly identifiable and separate from the remaining issues which were withdrawn from the jury at the original trial and no exceptions thereto were ever transferred.
4. An order by the Trial Court for the retrial of other issues, in such case, which were found necessary to assure a fair trial was warranted.
MOTION, pertaining to issues to be tried at a new trial ordered by this court in Lampesis v. Comolli, 101 N.H. 491.
Plaintiff brought an action against defendant in two counts, one in assumpsit and one in deceit, in which the jury returned a verdict for the plaintiff. Lampesis v. Comolli, 101 N.H. 279. At that trial the Court granted defendant's motion for a nonsuit on the count in assumpsit. It also withdrew from the jury's consideration two issues alleged by plaintiff in his count for deceit, namely, that defendant had acted as agent for Machinery Finance Corporation and that defendant had wrongfully failed to account to plaintiff for the proceeds of a repossession sale. Plaintiff's exceptions to these rulings were not transferred to this court.
In considering defendant's exceptions this court "pass[ed] upon the propriety of permitting the jury to include in their verdict . . . as an element of damages the `eight or nine thousand dollars' which the plaintiff claims he lost as a result of the repossession of other equipment by other creditors after his proposed sale to Dover failed to materialize." Lampesis v. Comolli, 101 N.H. 279, 285. We held that "the plaintiff's brief and unsupported statement that other creditors `all kind of jumped' him after the failure of the Dover sale is not sufficient to warrant a finding that it is reasonably certain the loss of this equipment was caused by the defendant's misrepresentations, nor did the evidence justify a finding that the damages thereby caused the plaintiff amounted to `eight or nine thousand dollars.'"
Following the order for new trial in that appeal this court, in considering defendant's exception to the granting by the Trial Court of plaintiff's motion that the new trial be limited to issues of damages, decided that "justice will . . . best be served by a complete new trial." Lampesis v. Comolli, 101 N.H. 491, 493.
Defendant thereafter filed a motion asking the Trial Court to rule that in the retrial no evidence be received with respect to the count in assumpsit; nor pertaining to defendant's having acted as agent for Machinery Finance Corporation or having wrongfully failed to account for the proceeds of the repossession sale; nor with respect to plaintiff's "alleged damages resulting from the alleged repossession of other equipment by other creditors." This motion was denied.
Defendant then filed a motion "for clarification and reconsideration of the issues to be tried at the new trial." The Court ruled that all of the issues sought to be foreclosed by defendant's previous motion were to be tried at the new trial. However it ruled that as to the issue of damages incurred by the repossession of other equipment by other creditors it was to "be re-tried subject to the Supreme Court opinion of April 24, 1958 [Lampesis v. Comolli, 101 N.H. 279] . . . insofar as the same may prove to be applicable to the evidence offered and, if allowed, submitted to the jury."
Defendant's exceptions to these rulings were reserved and transferred by Keller, J.
Fisher, Parsons Moran (Mr. Moran orally), for the plaintiff.
Orr and Reno (Mr. Reno orally), for the defendant.
An order by the Trial Court that all issues must be retried in order to afford a fair trial will ordinarily be sustained if there was evidence upon which it could be made. West v. Railroad, 81 N.H. 522, 534. The reason for this rule is that in most cases this is a question of fact to be determined by the Trial Court. White v. Schrafft, 94 N.H. 467, 472.
It is also well settled that a retrial for the correction of errors should be limited to the part of the case which might have been affected if the issues as to which no error occurred can be separated therefrom. Morin v. Company, 78 N.H. 567, 570; Kilfoyle v. Malatesta, 101 N.H. 473, 475.
It is equally well established that if a party fails to transfer in the manner and within the time prescribed by Rule 57 of the Superior Court ( 99 N.H. 617) his exceptions taken during the trial of a case he shall be deemed to have waived them. Perreault v. Lyons, 98 N.H. 317; Latour v. Producers Dairy, 102 N.H. 5, 7.
In these circumstances it becomes a question of law for this court whether there should be a retrial of the count in assumpsit which was withdrawn from consideration by the jury in the previous trial and as to which ruling no exception was transferred to this court. West v. Railroad, supra, 533. This is also true of the issues in the action for deceit which were withdrawn from the jury, namely, whether the defendant was acting as agent for Machinery Finance Corporation and whether he wrongfully failed to account for the proceeds of the repossession sale. This is especially true in this case where it was this court which decided in the first instance that "justice will now best be served by a complete new trial." Lampesis v. Comolli, 101 N.H. 491, 493.
We are of the opinion that the count in assumpsit and the two issues in the count for deceit previously mentioned are not to be retried. These questions are clearly identifiable and separable from the rest of the case. Moulton v. Langley, 81 N.H. 138, 141. It is not necessary that they be retried in order to assure plaintiff a fair trial as he has already had a full and fair opportunity to prove his case on these matters at the first trial. See Piper v. Railroad, 75 N.H. 435, 446. Defendant's exception to the denial of that part of his motion relating thereto is sustained. Spead v. Tomlinson, 73 N.H. 46, 50; Moore v. Lebanon, 96 N.H. 20, 22.
The issue of the plaintiff's alleged damages for repossession of other equipment by other creditors is not in the same category. Plaintiff's count in deceit and the damages resulting therefrom is to be retried except as to the two issues disposed of above. The Trial Court has ruled that in the retrial the issue of damages "is to be re-tried subject to the Supreme Court opinion of April 24, 1958 [Lampesis v. Comolli, 101 N.H. 279] insofar as the same may prove to be applicable to the evidence offered and, if allowed, submitted to the jury." The Trial Court was clearly warranted in finding that this was necessary to assure a fair trial and this part of the order is sustained. West v. Railroad, 81 N.H. 522, 534; Derosier v. Company, 81 N.H. 451, 470.
Exceptions sustained in part and overruled in part.
WHEELER, J., did not sit; the others concurred.