Potter v. Moody , 79 N.H. 87 ( 1918 )

The defendant excepted because counsel for the plaintiff stated in argument that an exhibit introduced in evidence by the defendant, purporting to be a copy of a typewritten letter, was not a copy, but was the original; that you could tell by looking at it that it was not a carbon copy. It does not appear that the exhibit was introduced as a carbon copy, but simply as a copy of a typewritten letter. While the appearance of the exhibit might furnish evidence to prove that it was not a carbon copy, it could not be determined by its appearance that it was not a copy, because the typist may have written the original, and then written a copy from that, instead of making a carbon copy at the same time the original was written. Counsel asked the jury to draw an inference from the evidence that could not properly be drawn. Whether an inference can be drawn from the evidence is a question of law, and argument of counsel urging the jury to draw an inference not warranted by the evidence, furnishes no ground for setting aside the verdict. Mitchell v. Railroad, 68 N.H. 96, 117; Conn. River Power Co. v. Dickinson, 75 N.H. 353, 358; Turner v. Company,75 N.H. 521, 523. If the defendant had regarded the unwarranted inference made by the plaintiff's counsel prejudicial to her case, upon request, the court in the charge to the jury would undoubtedly have corrected the error. Cavanaugh v. Railroad, 76 N.H. 68; Gosselin v. Company, 78 N.H. 149, 151.

The second exception of the defendant cannot be sustained. The statement of counsel in relation to the postponement of the trial under certain rules, if incorrect, could be nothing more than an erroneous statement of law, which in the absence of evidence, it is presumed was corrected by instructions to the jury. Leavitt v. Company, 72 N.H. 290, 292; Seeton v. Dunbarton, 73 N.H. 134, 137; Curtis v. Railroad, 78 N.H. 116.

Exceptions overruled.

YOUNG, J., was absent: the others concurred.