Pearson v. Dover Beef Co. , 69 N.H. 584 ( 1899 )

The plaintiff's testimony in relation to his arrest was competent. Apparently, the defendants had no justifiable excuse for following the plaintiff into Maine, where he happened to go for the day, and causing his arrest there just as he was about to start for home. This state afforded them ample provisions for collecting their claim, among which was one for causing his arrest if he concealed his property to avoid its attachment. P. S., c. 221, s. 8. The evidence tended to show that the defendants were unwilling to submit their claim to the usual course of litigation, but felt the need of resorting to means of oppression to compel a settlement, — that they were conscious of some infirmity in their claim which was liable to defeat it in a fair trial relating to its merits.

The testimony given by Pierce concerning the arrest disclosed his bias and zeal in behalf of the defendants, and was competent upon the question of his credibility as a witness.

Presumably, no judgment has been rendered in the Portland suit; at all events, none is alleged in the pleadings in this action. Neither party was at liberty to introduce evidence of the result of a trial of the issues in the suit, preparatory for a judgment. King v. Chase, 15 N.H. 9, 13, 14; Hayward v. Bath, 38 N.H. 179, 185. A portion of the plaintiffs cross-examination of Pierce was objectionable on this ground. Immediately following a question and answer showing that the case had been tried, this question was asked the witness: "And the case was decided against you, wasn't it?" Besides calling for incompetent testimony, the question is objectionable, under the circumstances, in being declarative in form as well as interrogative. The witness was asked to confirm a declaration positively asserted. If the answer had been in the negative, the jury might have been in doubt whether the questioner or the witness told the truth. The question having been ruled out, it was followed by another calling for the same incompetent testimony, and; this also having been ruled out, the witness was asked, "Have you collected your pay?" and answered, "No, sir." The natural effect of these three questions and the answer to the last one was to inform the jury that the trial of the Portland suit resulted adversely to the defendants. Although the word "collected" in the last question bias not limited by the phrase, "as a result of that suit," it was evidently used in that sense; and the question with the answer conveyed the idea which the counsel had just previously expressed by the declaration that "the case was decided against" the defendants. The incompetent testimony was, by the counsel's persistence, gotten before the jury in spite of the court's ruling, and its effect was necessarily prejudicial to the defendants and rendered the trial unfair. For this reason the verdict must be set aside. Bullard v. Railroad, 64 N.H. 27; Demars v. Glen Mfg. Co., 67 N.H. 404, 407.

Exception sustained.

PARSONS, J., did not sit: the others concurred.