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+"{\"id\": \"1047555\", \"name\": \"Annan v. Baker & a.\", \"name_abbreviation\": \"Annan v. Baker\", \"decision_date\": \"1870-01\", \"docket_number\": \"\", \"first_page\": 161, \"last_page\": \"173\", \"citations\": \"49 N.H. 161\", \"volume\": \"49\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T23:27:23.860017+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Annan v. Baker & a.\", \"head_matter\": \"Annan v. Baker & a.\\nWhere land was sold, for the non payment of the public taxes by the collector, on the fourth day of May, A. D. 1865, and. the collector gave his deed of the same to the purchaser, on the 4th day of May, A. D. 1866, held that one year for the redemption of the land sold had not expired, and that the deed was given prematurely.\\nThe court of chancery can only give relief, where it becomes necessary to amend or reform a description of and embraced in a deed.\\nWhere two definite connecting lines are given, running at right angles, or nearly so, and also the quantity of laud to be conveyed, such land can be locat- . ed with due certainty, by running equi-distant lines from the point of their intersection, so far, as to embrace the required, or given quantity of land.\\nA mere sale of land, by a collector, without a deed, gives the purchaser no col- or of title.\\nTbis case is trespass by John G. Annan against Daniel S. Baker & a.; for breaking and entering plaintiff\\u2019s close in Holderness, and cutting grass and carrying away hay, and converting same to defendants use, on the 13th day of July 1866.\\nPlaintiff claimed title to the land in question, by virtue of a sale of the same to him by one Plodge as collector of taxes for the town of Holderness, for the year 1864, for the taxes assessed that year in said town against Daniel S. Baker one of said defendants. The amount of tax assessed against said Daniel S. Baker for the year 1864 was, as follows: state, county, town and school tax, $41.18, school house tax, ninety-five cents.\\nThis tax was assessed upon a farm, a horse, five cattle and eight sheep ; and a part of the same had been paid, to wit enough to cover all the assessment upon said Baker\\u2019s poll, and upon all the stock, and leaving due only the assessment upon the farm. This balance, to pay which the land in question was sold, was as follows : \\u201c state, county, town and school tax, $30.98, school house, sixty-nine cents.\\nAt the annual town meeting in March, 1864, Annan, Smith, and Hodge were duly chosen and qualified as selectmen of Holderness for the ensuing year, who assessed the taxes in due season. At said town meeting, the town duly voted to raise the sum of $5000, as money tax, to defray town charges the current year. Also, \\u201cVoted, to raise thirty per cent in addition to what we now raise by law, in support of schools the ensuing year.\\u201d Under the last vote the selectmen ascertained the amount which the law required them to raise for schools, added thirty per cent, thereon, to that amount, and assessed their school tax, to cover that total sum.\\nThe collector\\u2019s appointment was made in writing to said Hodge, one of the selectmen and was signed by the other two selectmen. The appointment was dated April 13th, 1864. And the said Hodge\\u2019s bond as collector was not approved, filed or reeorded and he did not take the oath of office till April 30, 1864. But it appeared that said Annan made out this appointment for Hodge and dated it on the 13th and that he signed it on that day, but that it was not signed by Smith and delivered to Hodge by Annan till April 30, when said Hodge accepted the office, took the oath and filed his bond. The collector\\u2019s warrant and list of taxes were both signed by all three of the selectmen, and dated April 30. 1864, in which the taxes against said Baker were duly committed to said Hodge for collection.. No objection was made to the state tax. To authorize the raising of a county tax by the town of Holderness for that year (1864) plaintiff introduced the warrant of the county treasurer to the town of Holderness, ordering said town to raise the sum of \\u00a7722.31 as county tax. Plaintiff also introduced a copy of the procedings of the county convention held in June 1863, of which the following is a copy.\\nHaverhill, Dec. 1, 1863. \\u201c Report of the Grafton county delegation of Representatives, June ses&ion 1863. Agreeable to call Grafton county delegation met in south gallery of representatives hall immediately after adjournment of morning session June 12. Proceeded to choice of officers \\u2014 chose J. Buffum, of Monroe, President, A. Jenkins, Piermont, Secretary. Yoted to adjourn to call of the chair. At call met June 16th P. M. On motion of Parker of Lyman, voted a committee of three be appointed by the chair, to bring before the delegation, any business they may deem proper. Appointed committee Hoyt, of Holderness, Eastman of Littleton, Shaw of Lebanon. Yoted to adjourn to call. At call met June 18, A. M. In absence of clerk, chose Eastman of Littleton, clerk pro tem, Yoted to adjourn to call. At call met July 1, P. M. Cn call, heard report of committee. 1 herewith submit report of Committee. State of New Hampshire. Convention of Grafton county. The committee to whom was referred the amount of money to be raised for the county of Grafton have considered the same and ask leave to report. Your committee recommend twenty thousand dollars to be raised. George Hoyt, for the committee. Yoted to accept report of Committee. Yoted to adjourn \\u201c sine die.\\u201d\\nAlonzo Jenkins, Secretary.\\nThe state of New Hampshire. Grafton, ss. Supreme Judicial Court, clerk\\u2019s office, January 20, A. D. 1864. Received for record. Recorded and examined, Attest, G. A. Dole, Cleric.\\u201d\\nPlaintiff offered evidence as bearing upon the legality of the assment of the school house tax, the following. A book of records purporting to be the records of school district No. 14 in Holderness, in which was what purported to be the reeords of school meetings in said district for the years (among others) of 1863-4 & 5, with the testimony of witnesses, who stated that they had acted as clerk of said district in 1863-1864 & 1865, that said district embraced a part of Holderness village, and that this district had acted as a school district for fifteen years, and that Daniel S. Baker lived in this district and that the book of records produced were the records of said district. From said records it appeared that the copies of the war rants for the school meetings in March, 1863, and in 1864 were posted at the door of the school house in said district, but it appeared in evidence that said warrants were in fact posted on the door of said school house. The warrant for the meeting in March 1864, was dated March 22d, was posted up same day and called a meeting of said district to meet at said school house, on the 31st day of the same March, at which meeting said district voted, to raise the sum of thirty-five dollars to purchase mural maps, globes and apparatus for said district. It appeared that this vote was duly certified by the clerk of the district to the selectmen!, and that the selectmen made their assessment of the tax designated as \\u201c School House Tax,\\u201d by virtue of that vote, so certified to them. It did not appear from the records of said district that the warrant thus posted up March 22, 1864, for the school meeting, was under seal, but there was evidence tending to show that the original warrant was under seal, and the plaintiff had leave on motion, to amend the record, by showing that such amendment would be according to the fact. Plaintiff also moved for leave to amend the record of the county convention, in various particulars, and leave was granted to amend said record in any particulars, upon showing the court., that such amendments would be according to the tacts in the case.\\nIt appeared, that said Hodge, as collector, gave to said Baker a notice in writing of the amount of his taxes in May or June, 1864, after that, he called on said Baker, several times, for the taxes. Baker, finally, decliucd to pay them. There was evidence tending to show that said Baker had personal property, sufficient to pay the taxes, but that he did not expose the same, or offer to do so, to the collector so that he might levy and collect his taxes thereon. Hodge testified, that he met said Baker on the day before he advertised the land for sale, and told him that \\u201cunless he exposed the goods I should sell the land, but he did not expose any, but said he would not pay the tax.\\u201d There was no evidence that Hodge, in any other terms, notified Baker, or, demanded of him, to expose goods or chattels, out of which to collect the tax, and the court ruled that when payment of the tax was demanded, of the person against whom the tax had been assessed, and he neither paid it nor exposed goods and chattels for him to take, that he might then properly proceed and take the land. Hodge advertised the land for sale ; the following is a copy of the notice of sale :\\n\\u201c COLLECTOR\\u2019S SALE OE REAL ESTATE.\\nAll persons interested in the following tracts of land, in the town of Holdcrness, in the county of Grafton, are notified that the same are taxed in the tax-list committed to the subscriber, who, is collector of taxes for said toAvnfor the year 1864, as follow's : A certain tract of land owned by Samuel S., and George and Samuel H. Baker, known as the Samuel S. Baker homestead farm and now occupied by Samuel S., and David S. Baker, and taxed to the said Daniel S. Baker, for state, county, town and school taxes, thirty dollars and ninety-eight cents, and for school house tax, sixty-nine cents.\\nAlso,-.\\nAnd if no person shall appear to discharge said taxes on or before the fourth day of May next, at one o\\u2019clock, in the afternoon, I shall proceed to sell, at the Post Office in said town, at public auction so much of said real estate owned by such delinquents, respectively, as will be sufficient to discharge said taxes and all incidental charges against such persons. Joel Hodge, Collector.\\nHolderness, N. H., March 20, 1865.\\u201d\\nIn the notices ot the sale, that were posted up the word \\u201cthen\\u201d was written next before the words \\u201cproceed to sell.\\u201d And said notices, as posted up, may be referred to as part of this case. Leave to ameixd the record by inserting the wox'd \\u201cthen\\u201d before the word \\u2018 \\u2018proceed\\u201d was granted on motion of plaintiff. The land was sold oxxthe 4th day of May, 1865. Axxd said Hodge, as collector, gave a deed of the same to the purchaser, this plaintiff on the 4th day of May, 1866. The record of the return of the sale and the collector\\u2019s deed, and the wx-it in this case, may be referred to as parts of the case. Plaintiff moved for leave to amexxd the return of the sale and the record thereof, and also for leave to amend the collector\\u2019s deed (the same xxot having been recorded) and the grantee consentixxg.\\nIt appeared, by evidence addressed to the court, that the laxxd sold, was, in fact, seven axxd three-fourths acres by measure in the northwesterly corner of the Samuel S. Baker farm, so-called, beginning at the brook axxd on the southerly side of the bx\\u2019ook, thence going nox\\u2019tlxerly (on the highway) to the CaxT farm, thence extending easterly, of equal width all the way, far enough to make the required quantity. Axxd leave was granted to the plaintiff to have the account of the sale and the record thereof, amended and also the collector\\u2019s deed, if under the circumstaixces that may properly be amended, so as to correspond in the description of the land, with the land actually sold as described above.\\nThe return of the sale of the land, was as follows : \\u201cThe following is a true account of the-sale of the real estate of persons resident in the town of Holderness, for taxes assessed upon the same ixx said town for the year 1864, and which were sold pursuant to ixotice, at public auction at the Post Office ixx said town, oxi the fourth day of May, 1865. Sevexx and three-fourths acres of the Samuel S. Bilker homestead farm, so-called, bounded thus : On the west, by the highway leading from Holderness village to Andrew Baker\\u2019s farm; northerly, by land now owned by John B. Carr; easterly, and southerly, by the remaining part of said Baker farm \\u2014 axxd was sold to John G. Annaxx, he being the highest bidder, for thirty-six dollars and fifty-seven cents, to pay the taxes remaining unpaid, assessed on said Baker place, amounting to thirty-one dollars and sixty-seven cents, and incidental charges amouxxting to four dollars and ninety cexxts, being in the whole, thirty-six dollars and fifty-seven cents.\\nJoel Hodge, Collector.\\nGrafton, ss. May 4th, 1865. Then the said Joel Hodge appeared and made oath that the foregoing account by him signed is true, before me, John G. Annan, Justice of Peace.\\u201d\\nThe description of the land in the collector\\u2019s deed, was as follows :\\n\\u201cSeven and three-fourths acres of the Samuel S. Baker homestead farm, so-called, bounded thus : On the west, by the highway leading from Holderness village to Andrew Baker\\u2019s farm; northerly, by land now owned by John B. Carr; easterly and southerly, by the remaining part of said Baker\\u2019s farm.\\u201d \\u25a0\\nVerdict for plaintiff, which the defendant moves to set aside.\\nThe following objections to the plaintiff\\u2019s testimony were seasonably made by the defendant and al \\\\ proforma, overruled by the court, to which the defendant excepted, as he also did, to the ruling of the court, as stated in the case. And the questions of law are reserved.\\nDEFENDANT\\u2019S EXCEPTIONS IN ANNAN V. BAKERS.\\nThe collector did not file his bonds within six days after his appointment. Two of a board of selectmen cannot appoint the third collector. The vote to raise school money above that required by law is indefinite, uncertain and of no effect. It does not appear upon what sum or amount the thirty per cent, is to be reckoned and determined. The school district for which the tax was assessed was not sho wn to have any legal existence. It was not shown that the town, by vote or otherwise, had ever established such district, or that there was auy such district defined by metes and bounds by the town, as is required. The school meeting at which the money was voted, to raise which, the assessment was made, was an annual meeting, and was called and held after March 15. The record shows the notice for the meeting in 1863, was posted at the door, not on it. The warrant for the meeting was not under seal. Notice for the meeting in 1864 posted at, not on the door. If the meeting, at which the money was raised, can be regarded as a special meeting, it being to raise money, the notice was deficient in length of time, as there was only eight days, the law requiring ten. Money cannot be voted and raised to buy mural maps, nor globes, nor apparatus. The plaintiff did not show that he had any deed of the property. The paper he relied on as a deed, was void ; 1st, Because it was given before the law authorized it to be, and within a year from time of sale ; and, 2d, because it was uncertain and indefinite. The advertisement or notice of the sale was deficient, in this, that it gave no hour, and the return is deficient for the same reason. The collector had no right to sell the land. There was no lien on it. It appeared that the defendant had an abundance of personal property, and that no request of him was ever made by the collector to expose it, and that the defendant neither neglected or refused to expose personal property when requested. The clerk of the county convention which it is claimed voted the county tax, was not sworn. The proceedings of said convention, the last meeting of which was in July, were not reduced to writing or made up until more than sixty days had elapsed after the dissolution of said convention, and until December 1, 1863 thereafter; and no return of the proceedings of said convention was furnished the clerk of the court within sixty days, cither after the adjournment of the legislature or the dissolution of the convention. The personal property of the defendants against whom the assessment was made must first be taken, inasmuch as he had a sufficiency known to the collector, and which he neither neglected or refused to expose on request. The real estate was exempt and could not be proceeded against.\\nUpon the points considered by the court, Pike & Blodgett, for the defendants, contended:\\nI. The plaintiff\\u2019s deed was prematurely delivered, and is, therefore, absolutely void. The statute provides that the deed shall be given at the end of one year from the time of sale. Comp. Stat., ch. 49, sec. 17. This means after the expiration of a year. Bell\\u2019s Town Officer (4th ed.), 138. Gen. Stat., ch. 55, sec. 17. The owner is entitled to a full year in which to redeem, and this did not end until midnight on the fourth day of May, 1866. C. S. chap. 1, sec. 25 ; Rand v. Rand, 4 N. H. 267 ; Rlalce v. Orowninshield, 9 N. H. 304. The cases cited by the plaintiff, showing that for some purposes a day ends at sunset, have no bearing, because they relate only to commercial usuages. Day in our statutes, and generally, means civil day, and not natural, as claimed by plaintiff. \\u201c The common acceptation of the word day is a civil day, beginning and ending at midnight.\\u201d /Shaw v. Dodge, 5 N. H. 462. The defendants are entitled to a liberal construction of the statute. \\u201cA law which authorizes the redemption of lands sold for taxes, ought to receive a liberal and benign construction in favor of those whose estates would be otherwise divested, especially in those cases where the time allowed for the payment of the taxes is short, the indemnity given to the purchaser ample, and a penalty is imposed on the owner.\\u201d Dubois v. Hepburn, 10 Peters 1. The presumption of Jaw is, that the defendant, D. S. Baker, was ready to redeem on the day the deed was delivered, and was prevented from doing so by the wrongful delivery. If, therefore, there is any doubt as to the rule for computing time, or as to the construction of the term \\u201c at the end of a year,\\u201d defendants should have the benefit of it, because \\u201cthe neglect to redeem is in the nature of a forfeiture of the owner\\u2019s right, and, therefore, the court will so construe the statute as to prevent this effect, if the language is susceptible of a doubt.\\u201d Bands v. Lgon, 18 Conn. 30.\\nII. The deed is void for uncertainty. The general doctrine is, that when the description is so uncertain that the land cannot be identified, the deed will be void. ,\\nThe description in plaintiff\\u2019s deed, is as indefinite as in Bean v. Ihompson, 19 N. H. 290, or in Harvey v. Mitchell, 31 N. H. 575. If the plaintiff has any rights under the deed, he has that of selection. He can locate his land in any form he pleases. He can establish his east and south boundaries, without special regard to length or breadth, but with special reference to the quality and value of the land. The only limitation, east and south, is that his tract in those directions is to be bounded \\u201c by the remaining part of said Baker\\u2019s farm,\\u201d which may be a strip not more than a foot in width. Practically, the deed gives the plaintiff the right of election, which might in its exercise almost destroy the value of the defendant\\u2019s farm, or greatly incommode him in its use and occupation. Such right of election the law will not tolerate. Iiaven v. Oram, 1 N. H. 93; Harvey v. Mitchell, ante. There is no rule of law which will locate this land. The law will not do that for plaintiff which it prohibits him from doing. The court cannot presume, that the lines will be straight, or that the road runs due north and south. The land may so lie, that it cannot be located in any particular form. The plaintiff\\u2019s counsel admit, they do not know in what form it would be, and it is submitted, the court cannot say, with no knowledge of the situation of the Baker farm, or of the relative length of the lines north and south, east and west. The universal rule is, that in sales by officers under process of law, the land must be defined with certainty. In the language of the supreme court of New York, in Jaclcson v. DeLancy, 13 Johns. 551: \\u201c It is altogether inadmissible that the property of parties should be swept away in this loose, undefined manner. It would operate as a great oppression on the debtor, and lead to the most odious and fraudulent speculations. To tolerate such judicial sales, would be a mockery of justice.\\u201d \\u201cThe deed of the collector, taking effect only as the execution of a statute power, should be construed with strictness so as to enable the grantee to identify the land, and to enable the owner to redeem it.\\u201d Hill v. Mowry, 6 Gray, 552.\\nIII. If the deed is not void, the motion to amend it cannot prevail ; because,\\n(1.) The collector is not an officer of the court, and his proceedings do not go upon or become part of its records.\\n(2.) The amendment is asked in court of law, which has no jurisdiction.\\n(3.) It cannot be granted, in any court, upon a simple verbal motion.\\nIY. But the plaintiff says, there is no necessity for a deed, the title passing by the sale. This position is -wholly untenable. The sole authority to sell lands for taxes, results from statute provisions, \\u25a0with all of which, there must be strict compliance. The provision that there shall be a deed, is positive and imperative. The sale is not absolute, but conditional. If the owner does not redeem within the year, the purchaser may have a deed, and it is this which perfects his title. Until this happens, he has simply an indefinite, contingent and inchoate right, which comes to nothing, without a deed. The collector has no power to deliver possession, and the purchaser is not entitled to and cannot obtain it, until he receives a deed. In all sales of real estate, there must be a deed to pass the title; here was a sale; consequently, there must be a deed. See Comp. Stat., ch. 136.\\nLeverett & Blair, and Carpenter, for plaintiff.\\nUpon the same points contended : That the deed was delivered by collector at the time, required by law; \\u2018 \\u2018 The collector is to give the deed at the end of one year.\\u201d Comp. Stat., ch. 49 \\u00a7 17. The year clearly ended at the end of thq fourth, and before the commencement of the fifth, day of May. It is submitted, that the last moment of the fourth day of May wks the end of the year, the only point of time literally and exactly answering to the language of the statute. Any later time would not be \\u201c at,\\u201d but after, the end of the year. The year ended at the close of business hours on May 4. The defendant could not redeem after that time, or after sunset on that day. Aldrich v. Albee, 1 Green. 120 ; Shed v. Brett, 1 Pick. 401 ; Bacon\\u2019s Abr. Tender D. Wade\\u2019s Case, 5 Coke 114, Twickley v. Prentice, 4 Taunton 549 ; Con. Dig. Rent, D. 1.\\nIt will not be presumed, that the deed was made, and delivere d before dark on May 4th, but, rather after that time ut res valeat.\\nBut, we submit the time of the execution of the deed is wholly immaterial. The statute does not in terms, nor by implication/or-bid the giving of a deed before the end of the year, and it will not be contended, that a deed given a month after the. end of the year is invalid for that reason. The giving of the deed could not affect the land owner\\u2019s right to redeem. But, if that be not so, still the question here arises against the owner of the land, who if he made any effort, or intended to redeem, can readily show it. As against him, therefore, however, it might be, as against a stranger, the deed will be held not to be unseasonably given, unless he shows some intent or effort to redeem, or that he was prevented by the premature delivery of the deed.\\n(2.) The deed is not void for uncertainty. It calls for a square or rhombus, in the northwesterly corner of the homestead farm, containing seven and three-fourths acres of land. Walsh v. Ringer, 2 Hammond, Ohio, 327, is directly in point and decisive ; Lyford v. Thurston, 16 N. H. 409 ; Jackson v. Vickery, 1 Wendell 406.\\n(3.) No amendment of the deed is neeessary, for the reason, that the plaintiff\\u2019s title, as against the defendant, is now perfect without any deed. It need not have been put in evidence at all. The sole object of a deed is to be placed on the record, as a notice to subsequent purchasers. The title passes by the sale, subject to the rights to redeem within a year, and not by the deed.\", \"word_count\": \"6902\", \"char_count\": \"38260\", \"text\": \"Nesmith, J.\\nWe propose to examine but two or three of the questions involved in this case.\\nOur examination of the case, proceeds under the guidance of the well-established rule of law, that the party, who seeks the benefits of statute law, must adhere closely to its requirements, or must show a substantial compliance with its provisions. Therefore, the burden of proof, is upon him, who claims under a collector's deed to show his proceedings legal or regular. Harvey v. Mitchell, 31 N. H. 578. Cass v. Bellows, 31 N. H. 506. Waldron v. Tuttle, 3 N. H. 340. The defendant says the collector's deed, upon -which the plaintiff must rely for his title, was given prematurely, and, for this reason, must fail. The land in dispute, was sold on the 4th day of May, A. D. 1865, and the collector delivered his deed to the purchaser, being the plaintiff in this suit, on the 4th day of May, A. D. 1866. Ch. 49 of the Comp. Laws, sec. 17, provides, that the collector, if living, otherwise his administrator, shall, at the end of one year from the sale, execute, to the purchaser or his heirs, a deed of the land so sold, and not redeemed. The defendant contends that the deed in this case was executed before the year for redemption of the land sold had ended or expired, and that he was entitled to the whole entire civil day of May 4, 1866, in which he might have legally redeemed the land sold, and thereby prevented the delivery of any deed to the plaintiff; and that the deed could not, with any legal propriety, have been delivered prior to the 5th day of May, A. D., 1866. Under the common and well received construction of our law, bearing on the subject, we think the defendant is correct. Sec. 25 of chap. 1, of the Compiled Laws, prescribes, that when time is to be x-eckoned from any day, date, act done, or the time of any act done, either by force of law or by virtue of any contract, hereafter made, such day, date, or the day when such act is done, shall not be included in such computation. The day of sale of the land for taxes being excluded by the aforesaid statute rule, of course it follows by fair legal intendment, that the owner must have one full and entire year for the payment of his taxes, and the l'edemption of his land from and after the fourth day of May, A. D., 1865. The woixl after has been recently introduced into our General Statutes, instead of at. But the intent or meaning of the statute remains unchanged. It appeal's to us the constraction we give to the law on this subject, upon a just interpi'etation of the several statutes, admits of no other or different construction.\\nMr. Fox, in his Town Officer, printed in 1847, gave the following rule to collectoi's of taxes and others interested in the subject. Rule 16, p. 109: \\\"The owner may redeem any tract, or any interest therein, within one year next after the day of sale; that is, on or before the same day of the same month in the next year; and the collector, within ten days after the day of redemption expires, shall leave a list of all the lands so redeemed with the town clerk, who shall record the same.\\\" Then follows rule 17th: \\\" After the expiration of one year from the day of sale, the collector shall execute to the purchaser, or his heirs, a deed of so much of the land sold as is not redeemed according to law.\\\" The same rules of construction are adopted by Chief Justice Bell in his edition of the Town Officer, and are sustained by many judicial decisions in this state and others xxpon similar questions, involving the computation of time. Leavitt v. Simes, 3 N. H. 14; Rand v. Rand, 4 N. H. 267 ; Blake v. Crowninshield, 9 N. H. 304. So in Massachusetts : Bigelow v. Wilson, 1 Pick. 485; Wiggin v. Peters & al., 1 Met. 127.\\nThe latter case was debt on bond for the prison limits, under the condition that Peters, who was committed to jail, &c., should, at the expiration of ninety days from the day of his commitment, surrender himself at the jail-house, &c. Shaw, C. J., upon the facts stated in that case, says: The words of the bond are, at the expiration of ninety days from the day of his commitment. The words of the statute are the same in effect, though in different language. Ninety days is a term of time, excluding the day of commitment, and the bond is not forfeited, if he obtain his discharge at any time within that term. The case of his not obtaining his discharge cannot happen until the whole of that time has expired ; and, therefore, there can be no breach of this condition until the whole of that time has expired. In the case before us, excluding the day of commitment, the term of ninety days expired o.n the last moment of the last day of June ; and, therefore, the surrender having been made on the first day of July, it was within the time limited by the law, and the terms of the bond, and thus saved the forfeiture. Judge Shaw remarks that the general rule governing the aforesaid case, was settled in Bigelow v. Wilson, before quoted. The marginal note of the latter case, is in the following language : \\\"In computing the time allowed by the statute of 1815, being ch. 137, sec. 1, for redeeming an equity of redemption, sold on execution, which is within one year, next after the lime of executing by the officer to the purchaser the deed thereof. The day, on which the deed is executed, is to be excluded in the computation.\\\"\\nNo moment of time can be said to be after a given day, until that day has expired. For a day is to be considered as an indivisible point of time ; and there can be no distinction between a computation from an act done, and a computation from the day, in which the act was done. Bagley v. Bayley, 5 Gray, 510; Fuller v. Russell, 6 Gray 128. So the six months after an assignment, which was dated May 16, expired on the following 16th of November of the same, year. 2 Cush. 334.\\nUnder an agreement to convey lands, on the payment of a promissory note, in annual payments, the day of the date is to be excluded. If dated on the 3d of March, A. D., 1847, a payment, or tender of the first installment on March 3, A. D., 1848, is sufficient. 4 Cush. 460. So in New York it is settled, that when after the expiration of a given number of days from one act, another may be done ; the day of the first act must be excluded, and the second act cannot be done till the day after the expiration of the given number of days. Com. Bank v. Ives, 2 Hill, 355 ; Butts v. Edwards, 12 Denio. 164; Cornell v. Moulton, 3 Denio 16: vide, also, Green. Cruise Title 32, ch. 5, sec. 17, & note; Strong v. Birchard, 5 Conn. 361; Young v. Higgon, 6 Meeson & Welsby 53; Streets v. Selden, 2 Wal. 190.\\nWe may remark, generally, when statute law defines the times for the redemption of estates mortgaged, as when the equity of redemption has been sold and conveyed, or when lands have been sold for taxes, and the original owners of such estates are in danger of loss, through forfeiture for failure to redeem seasonably or otherwise, courts are inclined to construe the law liberally in favor of the original owner, and in opposition to the loss of the estate. In Dubois v. Hepburn, 10 Peters, U. S. Court 4, Baldwin, J., says : A law, authorizing the redemption of an estate sold for taxes, ought to receive a liberal and benign construction in favor of those whose estates will be otherwise divested, especially where the time of redemption is short, and the purchaser can obtain indemnity. It would, therefore, seem not to be necessary for the purposes of justice, or to effectuate the objects of the law, that the right to redeem should be narrowed down by a strict construction of the statute on this subject. And when there is any doubt as to the right or power of redemption, the original owner is to have the benefit thereof. 18 Conn. 30.\\nWhen personal property is distrained and sold for taxes, the law holds that the collector shall keep the property the whole four days after the seizure, and before the final sale, for the reason that the owner should have all the time allowed by the statute in such cases for the redemption of his property, and to save the sacrifice consequent to a sale; and such sales have been pronounced illegal where the full time has not been given by the collector prior to his sale. Mason v. Thomas, 36 N. H. 302 ; Souhegan Factory v. McConihe, 7 N. H. 309 ; Lefavor v. Bartlett, 42 N. H. 555. Our legal day is the civil day. Shaw v. Dodge, 5 N. H. 462.\\nWith these views, and under the force of the authorities before referred to, we come to the conclusion that the original owner did not have his legal time for the redemption of his land before the collector executed his deed to the plaintiff. And that, consequently, the deed was executed prematurely, and plaintiff's title for this reason must fail. At the end of the year, means after the expiration of the year, and not at any hour, minute, or instant before the end of the year.\\nThe plaintiff's counsel contends that the naked sale of the land for non-payment of taxes, could vest in the purchaser a full right of entry as against the original owner. But we understand the rule to be otherwise settled. That the title cannot be regarded as perfected, except by deed fortified by the previous regular proceedings \\u2014 so settled in the analagous case of an administrator's sale. Livingston v. Pendergast, 34 N. H. 544.\\nSupposing our views to be correct so far, we might reasonably close the further discussion of the exceptions made by the defendants to the plaintiff's recovery in this case; but we, however, propose to discuss briefly the plaintiff's motion to amend the record of the collector's return of the land sold, as well as the description of the land in plaintiff's deed. Plaintiff says these records are both defective, and asked for an amendment of both the sale and deed, at the trial before the jury, in order, as he says, that they should be made to correspond to the true intent of the parties, when the land was sold, and subsequently conveyed. Our courts have generally been inclined to listen favorably to motions for amendments, when found necessary, and when they can be made consistently with the established rules of practice, and with the true original purposes or intents of the interested parties. In this case, two objections present themselves to the plaintiff's proposition. If, as the plaintiff suggests, an important or material mistake exists in the description of his deed, such mistake cannot be reformed by the court, while sitting as a court of law. Application for relief of this nature must be made to the court under its chancery jurisdiction; where the evidence, bearing on this question, must be collected and presented to the court, under a suitable petition, stating the facts of the case, and where such evidence may be weighed and considered, and a decree be made according to its influence upon the minds and conscience of the court. If, through accident, a mistake actually existed here, such as might materially prejudice the plaintiff in obtaining his expected rights, then we might order this case to be continued so long as might be necessary, to give him an opportunity to have such mistake corrected in the usual and proper manner. Prescott v. Hawkins, 12 N. H. 19.\\nWe are, however, inclined to the opinion, that the deed before us may stand without amendment. This court is bound to carry out the intent of the parties, if it possibly can, by giving a fair and reasonable construction to the language and meaning of the parties, so that res valeat et non per eat. Now, looking at the description of the deed from the collector to the plaintiff, we find that the quantity of land conveyed is definite, viz., seven and three-fourths acres. Next, that it is part of Samuel S. Baker's homestead farm; hext, bounded west by the highway, leading from Holderness Village to Andrew Baker's farm; northerly, by land now owned by John B. Carr ; easterly and southerly, by the remaining part of said Baker's farm. To give all parts of the boundaries of said tract of land due effect, it becomes a certainty that the location of this land must be at the northwest corner of the said Samuel S. Baker's homestead farm. Because here, and nowhere else, must be the point of intersection of the aforesaid highway with John B. Carr's farm. Then the tract of land has for its western boundary the aforesaid highway, and the Carr farm for its northern boundary. Starting from the northwestern corner, or point of intersection, and running equi-distant lines on said highway and the Carr farm, so far as to embrace the given quantity of land, and the description of it is reasonably perfected. Id certum est quod reddi certum potest. The figure of, the land hereby conveyed must be determined by the course of its outside boundaries. The angle formed by the external lines maybe a right angle, more or less. It is perfectly immaterial what the precise shape of the land conveyed may assume. The description called for is made complete, when,, from the ends of the first two lines heretofore described, the' easterly and northerly lines, bordering on the said S. S. Baker's farm, are united, thus embracing the land intended to be conveyed in one compact body. In this 'way, we are enabled to identify the land sold, as being the same land conveyed, and there is no occasion to amend either record.\\nIn Hill v. Mowry, 6 Gray 552, Judge Shaw says : The deed of the collector, taking effect only as the execution of a statute power, should be construed with strictness, so as to enable the grantee to identify the land, aud the owner to redeem it; and if the description in a conveyance be so uncertain, that it cannot be known what estate was intended, the conveyance is void. Worthington v. Hyler, 4 Mass. 205; Tenney v. Beard, 5 N. H. 58; Haven v. Cram, 1 N. H. 93 ; Bean v. Thompson, 19 N. H. 290 ; Harvey v. Mitchell, 31 N. H. 575 ; Wash v. Renger, 2 Hammond, Ohio 327.\\nWe, therefore, reject, the proposed amendments, and stand upon the validity of the original sale ; and the deed, so far as the description ot it is concerned, we pronounce sufficient.\\nThe first exception of the defendant, being found valid and fatal to the plaintiff's right to recover under his title, the verdict must be, therefore, set aside and\\nA new trial granted.\"}"

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+"{\"id\": \"1050226\", \"name\": \"Emma Taylor v. Grand Trunk Railway Company\", \"name_abbreviation\": \"Taylor v. Grand Trunk Railway Co.\", \"decision_date\": \"1869-01\", \"docket_number\": \"\", \"first_page\": 304, \"last_page\": \"321\", \"citations\": \"48 N.H. 304\", \"volume\": \"48\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:28:17.806510+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Emma Taylor v. Grand Trunk Railway Company.\", \"head_matter\": \"Emma Taylor v. Grand Trunk Railway Company.\\nAfter the entry of a suit by a minor by her next friend, she died and her administrator was admitted as the party to prosecute the suit; it was held that the wife of such next friend was a competent witness for the plaintiff:\\nHeld also that it was too late to object to her competency after the direct examination in her deposition had been read, the counsel being aware of her situation at the commencement.\\nThe admission of tho representations of a sick person should be confined to such expressions as furnish evidence of the present condition of the patient, excluding carefully every thing in the mature of a narrative of what is past.\\nThe statement that a person was lamer in the morning than the day before is not matter of opinion but a statement of a fact, and not objectionable.\\nToe admissions of the father of the person alleged to be injured and bringing suit for it, made before her death, are not admissible against her administrator, unless it he shown that the father is the real party in interest for whose benefit the suit is prosecuted.\\nIf this he shown the admissions would he competent, although when they were made the father had no interest.\\nBut the mere fact that the estate of the daughter would descend to the father subject to the claims upon it, would not make him the party to the suit so as to render his admissions competent.\\nThe testimony of a physician that injuries from railroad accidents were more severe than from other causes though bearing the same external appearance, is admissible although his knowledge is derived from study alone.\\nOn the cross-examination of a witness offered by the railroad, and who had charge of the section where the alleged injury happened from a defective rail, it is proper to ask him if he was short of iron at the time.\\nCommon carriers of passengers are bound to the exercise of the utmost care aud diligence of very cautious persons, and are responsible for any, even the smallest, negligence.\\nThe standard of care and diligence required of a railroad in carrying passengers does not depend upon its pecuniary condition or the \\u00e1mount of its revenues, but it is bound to provide a track, rolling stock, and all other agencies suited to the nature and extent of the business it assumes to do.\\nA direction to the jury that a railroad must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business, is erroneous, and calculated to mislead the jury.\\nWhen an injury upon a railroad is caused by the gross negligence of the cor-| poration, the jury may, if they think proper, award exemplary damages. 1\\nCash to recover for injuries alleged to have been sustained by Emma Taylor, in Sept. 1866, while travelling on defendants\\u2019 road. In the writ, dated Oct. 3d, 1866, plaintiff was described as a minor suing by A. TV\\\". Pope, her next friend. At April Term, 1867, the death of plaintiff was suggested, and John Bailey, 2d, her administrator, was admitted to prosecute the action.\\nI. Plaintiff offered the deposition of Elizabeth A. Pope, taken after the death of Emma Taylor. Defendants liad appeared by counsel at the caption, and -had raised no objection to the competency of the witness. No objection was raised at the trial until the plaintiff had read to the jury, the direct examination of deponent, when defendants, at the reading of the first question on cross-examination, (\\\" Is not Albert TV. Pope, who prosecutes this suit, your husband?\\u201d Answer \\u2014 \\\"He is,\\u201d) objected to the competency of the deponent, because she was the wife of A. TV. Pope. The objection was overruled, subject to defendants\\u2019 exception.\\nII. The following testimony relative to Emma Taylor\\u2019s condition after the injuries were alleged to have been received, was admitted, subject to defendants\\u2019 exception. Deposition of Abby C. Jennison \\u2014 answer to interrogatory 5 : \\\"I was out and in the room often till about 12 o\\u2019clock. At that time she said she had not had any rest. She seemed to suffer and seemed weak and debilitated.\\u201d (This was on the night after the accident.) Answer to interrogatory 20 : \\\" She did not seem to be excited, frightened.\\u201d (This was within a few hours after the accident.) Deposition of Mrs. Unity P. Crane who slept with Emma Taylor, the night after the accident. Interrogatory 18 : \\\" How was her lameness in the morning as compared with the day before, from what you saw and observed in her motions, and your examination made?\\u201d Answer \\u2014 \\\" She was lamer in the morning.\\u201d\\nIII. It appeared that Emma Taylor died under twenty-one years of age, unmarried, and without issue. Defendants\\u2019 offered to prove declaration made after the accident, and before the death of Emma, by her father, who is still living. The evidence was excluded, subject to defendants\\u2019 exception.\\nIV. Dr. Harris testified in substance, subject to defendants\\u2019 objection, that injuries received in railroad accidents were more severe than injuries received from other causes, and bearing the same external appearance. Dr. Harris had previously testified that he was a practising physician, that he had not attended persons injured on railroads, and that his knowledge on the subject was derived from reading. The objection that Dr. H. was not an expert on the subject was not specifically taken. If it had been, the court would probably have ruled that he was an expert. Defendants\\u2019 had previously objected to testimony on the subject from another physician who had had j>ractical experience m attending on persons injured on railroads.\\nV. It was admitted that the accident was caused by the breaking of a rail. Subject to defendants\\u2019 exception, plaintiff was allowed, on cross-examination, to ask the foreman of the five mile section where the accident occurred, \\\"Were you short of iron at the time of the accident?\\u201d Answer to the above and other questions : \\\"I had iron to repair that place \\u2014a whole old rail, but a good one \\u2014 shouldn\\u2019t have put in a new one if I had had it \\u2014 think I hadn\\u2019t any new rails on hand at that time, not certain.\\u201d\\nVI. The jury were instructed as to defendants\\u2019 liability, in substance as follows : The burden of proof is on the plaintiff to show that the accident occurred under such circumstances that the defendants were liable for the consequences; defendants are not insurers, and are not liable if they have been in no fault, but they are liable for the smallest negligence; they must provide a good track, and if there be the least failure in this, they are answerable for any injury that may happen in consequence. Defendants are bound to use the highest degree of care which a reasonable man would use ; this does not mean the utmost degr.ee of care which the human mind is capable of imagining, or in other words that care enough must be taken to render the passengers perfectly safe ; such a rule would require so great an expenditure of money, and the employment of so many hands. Defendants must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business. The law does not require such particular precaution as it is apparent after the accident might have prevented the injury, but such as would be dictated by the utmost care and prudence of a very cautious person before the accident and without knowledge that it was about to occur. Defendants must use the highest degree of practicable care and diligence that is consistent with the mode of transportation adopted. They are not obliged to use every possible preventive that the highest scientific skill might have suggested. It is said that they must use the best precautions in known practical use to secure safety, the most approved modes of construction and machinery in known use in the business ; but this doctrine must be taken with the qualification, that they are not obliged to introduce improvements if the expense of introducing them is much greater in proportion, than the increase of safety thereby attained.\\nDefendants excepted in these words : \\u2014 \\\" To the charge of the court as to the liability of common carriers of passengers by railroad.\\u201d\\nVII. Evidence was introduced by plaintiff, tending to show that the track was \\\" very much curved \\u201d at the place of the accident; that the rail which broke was on the inside of the curve, next the Ammonoosuc river, and about fifteen or twenty feet from the river ; that this rail appeared very much worn and battered or broomed, from one to two feet from the end ; that it was a \\\" U \\u201d rail; that some two feet of the rail broke off, and that two passenger cars went off the track and part way done the bank, being almost bottom side up when they rested; that the train was going at the rate of not more than twenty miles an hour when the accident occurred. s\\nDefendants introduced evidence tending to show that the breakage was occasioned by a hidden defect in the rail, which they were not in fault fir not detecting ; but although several employees of the defendants, including the chief engineer of that portion of the road were on the spot immediately after the accident and saw the rail, (and the defendants sent an eminent physician from Montreal to look after the persons injured,) it did not appear that defendants preserved the rail, and the rail was not produced by them at the trial.\\nThe jury were instructed, that if they found that the accident was caused by the gross negligence, of defendants, they might, if they chose, give exemplary damages, but that they were not bound to do so. Part of the decision in Hopkins v. At. efi St. L. H. 12., 36 N. H., 9, beginning on the third line from the bottom of page 17th, and ending on the eleventh line from the top of page 19th, was read to the jury, (omitting authorities,) to be considered by them only as a statement of l-easons which had induced the court to allow juries to give exemplary damages in cases of gross negligence.\\nDefendants excepted \\\" to the charge of the court in regard to exemplary damages,\\u201d and also took the exception, \\\" that the question of exemplary damage ought not to have been submitted to the jury, upon the evidence in the case, and that it was error to do so.\\nThe jury were requested, in case they found for plaintiff and gave exemplary damages, to assess the actual and exemplary damages separately. The jury returned a verdict for plaintiff, and assessed the actual damages at five hundred dollars, and the exemplary damages at eight hundred and fifty-eight dollars and fifty cents. A verdict was then taken for plaintiff, damages $1358.50, with leave to plead a remittitur, if plaintiff should hereafter desire to do so.\\nDefendants move to set aside the verdict on account of the foregoing rulings, and also \\\" because the exemplary damages assessed by the jury, were excessive and beyond all measure.\\u201d\\nJVhidden & Haywood, Ray tfi- Ladd, for plaintiff.\\nFletcher and Bingham, for defendants.\", \"word_count\": \"9787\", \"char_count\": \"54888\", \"text\": \"Bellows, J.\\nThe first question is whether Mrs. Pope was a competent witness. On that point it appears that the suit was brought in October, 1866 by the minor Emma Taylor, who sued by her next, friend A. W. Pope, the husband of the witness Mrs. Pope; and that at the April Term, 1867, the death of Emma Taylor was suggested, and her administrator, John Bailey 2d, admitted to prosecute the action. The trial was at the August Term, 1868, and the deposition of Mrs. Pope was taken after the plaintiff's death.\\nThe objection was that the husband was originally a party and liable for the costs of the suit. If this were so originally, it is clear that he ceased to be a party at the April Term, 1867, when the administrator was admitted to prosecute the action. In principle it stands like the case of an administrator removed from the trust pending a trial to which he is a party, and the appointment of another person who is admitted to take his place as such party. Here, as was held in Wiggin v. Moulton, Administrator, erroneously reported as Wiggin v. Plummer, 31 N. H. 265, the former administrator ceases to be a party altogether, and unless otherwise interested was a competent witness under the old law. That being the case there was at no time any liability on the part of A. W. Pope for any thing more than the costs up to April Term, .1867, and as no judgment in chief can now be rendered against him, he caving ceased to be a party, we are not aware of any mode of enforcing against him a claim for any part of the cost; and such was the decision in Wiggin v. Moulton, before cited. It is quite obvious that no judgment for costs could be rendered until the trial is ended, and then judgment must be against the then party, and such was clearly the conclusion of the court in the case cited.\\nIf the prochein ami was liable for costs up to the time of the plaintiff's death, it might be equitable to require the administrator to furnish some equivalent security, and by the Revised Statutes, chap. 191, sec. 7, the court has power to order it, and so it is by the General Statutes.'\\nIn accordance with this view it has been held that a next friend will not be permitted to withdraw from a cause in order to become a witness without security for the costs up to that time being furnished. Witts v. Campbell, 12 Ver. 493.\\nUpon the point whether the next friend is liable for the costs there is some conflict in the authorities, but the preponderance we think is in favor of his being liable ; but however this may be we are of the opinion that in this case no claim for costs after the admission of the administrator of the plaintiff could be enforced against the prochein ami, and that consequently the wife was a competent witness.\\nBesides, it is by no means clear that the objection may not be regarded as waived. The examination in chief was read without objection, and it is obvious that the counsel for defendant knew the witness was the wife of the next friend, for the fact was drawn out by the cross-examination of one of them ; and the judge would have been well warranted in finding that the fact was known when the deposition was commenced to be read; and if so the objection would be considered as waived.\\nIn respect to the declarations of Emma Taylor testified to by Abby C. Jennison, the rule is well settled here that representations by a sick person of the nature, symptoms and effects of the malady under which he is laboring at the time are admissible. Howe v. Plainfield, 41 N. H. 135; Perkins v. Concord R. R. 223; 1 Greenl. Evi. sec. 102. Such evidence is admitted because these expressions are the natural language of suffering and pain which often could not be otherwise proved. This evidence, however, is not to be admitted beyond the necessity upon which the rule is founded, and therefore everything in the nature of a narrative of what is already past is to be carefully excluded, and the testimony confined to such expressions as furnish evidence of the present condition of the patient. Bacon v. Charlton, 7 Cush. 586, and Chapin v. Marlborough, 9 Gray 244.\\nTested by these rules the statement of Miss Taylor that she had not had any rest was not strictly admissible. It is true, as suggested by the plaintiff's counsel, that there is included in the expression the idea that she was then unable to sleep, and so far it would not be objectionable ; but it relates also to time that was past, and if admitted it would be difficult to tell where to stop. Still it does not seem to be\\\" at all material, and on that ground we should hesitate to set aside the verdict for that cause.\\nThe statement of Mrs. Crane that Miss Taylor was lamer in the morning than the day before was. not objectionable as matter of opinion. It was a statement of a fact open very largely to common observation. In a very great proportion of cases, indeed, it would be impossible to describe to a jury the extent of the lameness at the different times so as to be intelligible, and yet the difference might be perfectly obvious to the eye. See Whittier v. Franklin, 46 N. H. 23. In Eastman v. Amoskeag Co. 44 N. H. 143, 155, it was held that a witness might be allowed to state that the water in Merrimack river ran higher on the plaintiff's land the year in question than during previous years. See also Willis v. Quimby, 31 N. H. 485.\\nUpon the subject of the father's admissions it appears that they were made during the daughter's life, and when he had no interest in the suit which she had commenced by her next friend, A. W. Pope; and the competency of those admissions is urged upon the ground that the avails of this suit now prosecuted by the daughter's administrator, will go to the father as the sole representative of the daughter, and that the father thus became the party in interest.\\nAt the time the admissions proposed to be proved were made, the father occupied no position that would render his admissions competent. In Harney v. Donnelly, 12 Gray's Rep. 361, it was held that the declarations of the father in respect to injuries received by his minor son were not admissible in favor of the defendant in a suit after-wards brought by the soil by the father as his next friend. This was put upon the ground that there was no proof that up to the time of those declarations the father was the son's agent.\\nIf in this case the son was regarded as the real plaintiff it would seem to be inequitable that he should be affected by the declarations of his father at a time when he was in no way the agent or representative of the son. If, however, the father after such declarations became the sole party in'interest to a suit for injuries to the son, a very different case would be presented.\\nIn the case of negotiable paper transferred after it is dishonored, and sued by the endorsee, the declarations of the endorser made while he held the bill or note are admissible against the endorsee, upon the ground that they are the admissions of one under whom the endorsee derives his title. He will not, however, be affected by admissions of the endorser after the transfer, nor by his statements made before he became the holder of the bill or note.\\nIf the endorser retains an interest in the bill or note, as if he has pledged it for less than the amount due, then his declarations made after the transfer may be received to affect his own interest, but not to affect the interest of the endorsee. 1 Greenl. Evi. sec. 190, and notes and cases; Bond v. Fitzpatrick, 4 Gray, 89, 92; Sylvester v. Crapo, 15 Pick. 92.\\nIf a suit is brought by the holder of such bill or note, the defendant, we think, may prove the admissions of such holder, made before as well as after it came into his possession. At common law the defendant could not call the plaintiff to prove the fact so admitted, and it certainly is just that he should be allowed to prove the admissions, nor can we perceive any legal objection to it. On the contrary the general principle is that the admissions of a party against himself are competent, and we are not aware that this is limited to admissions made while he held the claim in question. Whether his admissions shall affect a third person is a very different question as we have already seen.\\nUpon the whole, if under the circumstances the father is to be considered the party in interest here, we are of the opinion that his admissions, though made before he acquired such interest, are competent to be proved by the defendant.\\nThe true rule is, we think, laid down in Plant v. McEwen, 4 Conn. 544, in these words : \\\"On general principles, the declarations and acts of the party of record, whether he had or had not an interest in the subject at the time of making or performing them, are admissible in evidence against himand see Starkie's Evi. 4th part, page 30.\\nThe question is, then, whether the father was to be regarded as the party in interest in this cause. If the disposition of the estate is to be governed by our statute of distributions, then it would seem that the whole estate of the daughter including the claim here in suit would go to the father. It does not appear, however, that the suit is prosecuted by him, nor does it appear that he has the sole interest in it, or that others would not have claims upon the amount recovered, as creditors of the deceased or by way of lien for costs and disbursements in this suit.\\nIn the case of Plant v. McEwen, 4 Conn. 544, before cited, which was a suit upon a probate bond given by the defendant as executor of his father, the plaintiff offered in evidence the acts of the defendant before the testator's death in order to establish a claim against the estate. The evidence was received at the trial, and on motion for a new trial it was held that although the evidence might be competent if it affected the interests of defendant alone, it was not admissible to affect the heirs of the testator, and a new trial was granted.\\nIn Carleton v. Patterson, 29 N. H. 580, which was a suit against an officer for the keeping of property attached by him on mesne process, it was decided that the Admissions of the creditor for whom the attachment was made were not competent without showing that he was the party in interest \\u2014 the party who really carried on the controv.ersy under a party who had no concern in it, and was merely a nominal party, or under one who was fully indemnified. It appeared also that the creditor had appeared specially to defend against the suit being sustained upon a writing between the plaintiff and defendant, on which the court instructed the jury that the suit could not be maintained. The court held the admission was rightly rejected. So in Barker v. Remick, 43 N. H. 235, 239, which was a suit against the sheriff for default of his deputy, it was held that this fact alone did not make the deputy a party, he not having taken upon him the defence.\\nUpon these authorities it does not appear that enough has been shown to give the father the character of a party in interest, or to make his declarations admissible against the administrator or the persons he may represent. Should he be shown to be the party in interest for whose benefit the suit is prosecuted, his admissions would be competent the same as if he were the party of record; for the law, with a view to evidence, regards the real parties. Starkie's Evi. 4ch part, page 31\\u201432, and Carleton v. Patterson, before cited; 1 Greenl, Evi. 180.\\nThe testimony of Dr. Harris, we think, was admissible, and comes within the principles laid down in Jones v. Tucker, 41 N. H. 546. His opinion was about a matter in relation to which inexperienced persons would be unlikely to form a correct judgment without such assistance; and one also, which so far partakes of the .nature of science as to require a course of study and observation to fittain a knowledge of it. The purpose of the testimony was to make it appear that injuries by railroad accidents were more severe than other injuries exhibiting the same external appearance; and to form an intelligent opinion upon the subject a person would need to learn by study or observation the char acter of the various injuries to which the human body is exposed ; and also the circumstances which would tend to aggravate the effects of such injuries, such as a shock to the nervous system caused by the application of great force. It would seem indeed to be quite obvious that there ought to be a course of careful study to enable a person to form a reliable opinion upon the subject. If injuries by railroad accidents are usually attended with great force and violence, such as to affect seriously the nervous system, it might well be that injuries occasioned by such accidents might be more serious than others of the same apparent severity. At all events it is manifest, we think, that the subject is one that needs the aid of scientific study and research in order to form a reliable opinion.\\nIt is often said that a gun shot wound is more serious than a sabre cut of apparently equal severity; but whether it be so or not the experienced surgeon is best fitted to decide, and the same may be said in respect to the matter now in question.\\nUpon the cross-examination of defendants' witness, the foreman of the section where the accident happened by the breaking of a defective rail, the plaintiff was permitted to ask him if he was short of iron at the time of the accident. If the answer showed that no suitable iron was provided to enable the witness to repair the track, and there was evidence tending to show that a new rail was needed, it would certainly be evidence for the jury to consider upon the point of negligence, and the degree of it. If' on the other hand the answer went to show that suitable iron had been provided, the defendants had no cause to complain ; and in either event there was no error.\\nThe great question in the case is upon the instructions to the jury in respect to the duty of the defendants ; the court having apparently an-'i swered that the carriers of passengers by railroad are bound to exercise the highest degree of care and diligence in the conduct of their business, and that they are responsible for the smallest negligence.\\nUpon a careful examination of the authorities we think this general view of the duties of such carriers, taken in the chai-ge, is correct. It is applicable indeed to the carriers of passengers by stage coaches, where the rate of speed is not much above six miles the hour, and it is very obvious that a higher degree of care and skill is demanded in the transportation of passengsrs by steam upon a railroad, where the speed is so much greater.\\nIn the English courts the proprietors of stage coaches are'held to a high degree of card and skill. In Aston v. Heaven et al., 2 Esp. Rep. 533, it was said, per Eyre, O. J., that the driver was answerable for the smallest negligence. In Christie v. Greggs, 2 Camp. 79, it was held that the undertaking of the carrier of passengers went no farther than this, that as far as human care and foresight could go, he would provide for their safe conveyance.\\nIn Crofts v. Waterhouse, 3 Bingh. 319, Best, C. J., lays it down that the coachman must have competent skill, and must use that skill with diligence, must knowNthe road, have steady hoi'ses, and a sufficient coach and harnesses; and ifVthere be the least failure in any one of these things the duty of the coach proprietor is not fulfilled and he is answerable for any injury or damage that may happen.\\nIn Sharp v. Gray, 9 Bing. 457, the case was that the axletree broke in consequence of a defect in the iron, and it was left to the jury to determine whether there had been the vigilance in examining the axletree which was required by the engagement to carry the plaintiff safely; although from the language of the judges it seems to have been understood that the carrier was bound absolutely to see that his coach was road-worthv.\\nIn Brenner v. Williams, 1 C. & P. 414, it was held by Best, C. J., that every coach proprietor warrants to the public that his stage coach is equal to the journey it undertakes, and that it is his duty to examine it previous to the commencement of every journey. See also Israel v. Clark et al, 4 Esp. 259, and 1 Starkie's Rep. 423.\\nThe doctrine of the American courts is still more strict and explicit; and the general current of the authorities is, that the carrier of passed-j gers is bound to the utmost care and diligence of very cautious persons, and is responsible for any, even the smallest, neglect; holding their undertaking to be to carry their passengers with safety as far as human care and foresight can go. This is distinctly laid down in Story on* Bail. sec. 601, 601 a, and also in 2 Grreenl. Evi. sec. 221, and in 2 Kent's Com. *601, *602, and Redfield on Rail., chap. 17.\\nThis, it will be perceived, accords substantially with the definition of the highest degree of care required of bailees of goods, namely, that care and diligence which very prudent persons take of their own concerns. Story on Bail., sec. 16, Jones on Bail., 166, where it is said that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels..\\nIt is true that doubts have often been expressed as to the utility of the theory which undertakes to define the degrees of negligence as slight, ordinary and gross, as in Steamboat New World v. King, 16 How. U. S. Rep. 474, and cases cited, where Curtis, J., expresses the opinion that the attempt thus to define the degrees of negligence had better be abandoned. So it is in Briggs v. Taylor, 28 Vt. Rep. 184.\\nBut however this may be, some light may be gained in respect to the duty of carriers of passengers by steam, by considering some of the rules which have governed the courts in relation to bailments.\\nYYhen the contract of bailment is mutually beneficial to both parties, as in the case of bailments for hire, pledges and the like, the bailee has been held for ordinary care; which is defined to be that care which e very person of common prudence and capable of governing a family, takes of his own concerns ; Jones on Bail., section 11, Story on Bail., section 11; while a bailee who alone receives a benefit, as in the case of the borrower, is bound to use extraordinary care.\\nIn the case of the bailee of goods the obligation of care and diligence rises in proportion to the demand for it, although it still is only ordinary diligence that is required; but it is obvious that what will constitute ordinary care will be affected by the nature, bulk and value of the goods bailed, for no one would expect the same care to he taken of a bale of cotton as of a bos of jewelry or other thing peculiarly liable to be stolen or injured.\\nThe case of common carriers of goods is an exception to the general rules applicable to bailments, and they are now regarded as insurers and liable for all losses except such as are caused by the act of God, or by the public enemies, and this is put upon the ground of public policy to guard against both negligence and collusion. Moses v. Boston & Maine Railroad, 24 N. H. 84.\\nUpon grounds of public policy also, the carrier of passengers is bound to exercise the highest degree of care and diligence. To his diligence and fidelity are entrusted the lives and safety of large numbers of human beings. He assumes the trust voluntarily, and for it receives a sufficient compensation ; and we think it very apparent that in no case of the bailment of goods is there so great and imperative a demand for the utmost skill and diligence as from the carrier of passengers ; especially is this true when the passengers are carried upon railroads by steam, for then in consequence of the greater speed the hazards to life and limb are largely increased.\\nIn The Philadelphia & Reading Railway Co. v. Derby, 14 How. U. S. Rep. 486, the court says : \\\" When carriers undertake to convey persons by the powerful but dangerous agency of steam,* public policy and safety require that they should be held to the greatest possible care and diligence, and whether the consideration be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance, or the negligence of careless agents; any negligence in such cases may w'ell deserve the epithet of gross ; \\\" and this statement is emphatically endorsed in the case of the Steamboat New World v. King, 16 How. U. S. Rep. 474, as resting not only on public policy but on sound principles of law.\\nIn Redfield on Rail., section 149, note 5, the author says : \\\"If the (degree of care and watchfulness is to be in proportion to the importance <o\\u00a3 the business and the degree of peril incurred, it is scarcely possible to express the extreme severity of care and diligence which should be required in the conduct of passenger trains upon railways.\\\"\\nSo in Hegeman v. Western R. R. Co., 3 Kernan Rep. 9, it is held that the same precautions required in running a stage coach at the rate of six miles the hour would not be the test for a railroad car running thirty or forty miles the hour, and a similar view is adopted in 1 Smith's Leading Cases, 5th Am. Ed. 328 ; note to Coggs v. Bernard.\\nThe measure of the care and diligence required of carriers of passengers, as laid down in Story on Bailments, Greenleaf's Evidence, Kent's Commentaries, and Redfield on Railways, as before cited, is fully sustained by the American cases.\\nIn Stokes v. Saltonstall, 13 Peters' U. S. Rep. 181, the instructions to the jury were that it was incumbent on the defendant to prove that in managing the coach the driver acted with reasonable skill, and with the utmost prudence and caution, and that if the injury was occasioned by the least negligence or want of skill or prudence on his part, the defendant was liable; and on error these. instructions were held to be correct, the court saying that the undertaking is that as far as human care and foresight can go the carrier will transport the passengers safely.\\nIn Massachusetts it is held that carriers of passengers are bound to use the utmost care and diligence to prevent the injury which human foresight can guard against; Ingalls v. Bills, 9 Met. 1, where it is said that the carrier is responsible for defects that might have been discovered upon the most careful and thorough examination. In McElroy and wife v. Nashua & Lowell R. R., 4 Cush. 400, it was held that the defendants were bound to the utmost exact care and diligence, not only in the management of the trains and cars but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of the passengers. In Maine the carrier is held for such care as is used by very cautious persons. Edwards v. Lord, 49 Maine Rep. 279.\\nIn Connecticut the carrier is held for the highest degree of care of a reasonable man. Hall v. Conn. River Steamboat Co., 13 Conn. 320; Derwent and wife v. Loomer, 21 Conn. 253; Fuller v. Naugatuck R. R., 21 Conn. 557, 576. In Hadley and wife v. Cross, 34 Vt. Rep. 586, the doctrine of Ingalls v. Bills was applied to a livery-stable keeper letting a defective carriage, namely, that he was liable if the defect could have been. discovered upon the most careful and thorough examination. So in New York in Hegeman v. Western R. R., 16 Barb. 353, it is held that the carrier is bound to conduct his business with all the care which human prudence and skill could suggest; and the defendants were held liable for injuries caused by a defect in a car made by a competent manufacturer, which defect was not discoverable upon a thorough examination after the car was finished, but might have been before, by bending the axle in which the defect was, and thus holding the carriers liable for the neglect of the manufacturer, and this decision was affirmed in 3 Neman 9. In Caldwell v. Murphy, 1 Duer 241, the charge of the judge that the law exacted of the carriers of passengers extraordinary care and diligence, and that they were liable for an injury unless it happened from pure accident, was held to be entirely correct and that extreme care was required. In Camden & Amboy R. R. v. Burke, 13 Wend. 626, the court recognize the rule that the carrier is bound for the utmost care of very cautious persons.\\nIn Railroad Co. v. Aspell, 23 Penn. 147, it was held that a railroad was bound to exercise the strictest vigilance, and must carry their passengers safely if human care and foresight can do it, and they are liable for any defect in the road, the cars, or the engines, or any other species of negligence whatever of which they or their agents may be guilty. So is N. J. Railroad Co. v. Kennard, 21 Penn. 203.\\nIn Galena & Chicago R. R. v. Yarwood, 15 Ill. Rep. 468, it is said that the current of authorities both in England and America is uniform in holding these carriers to the utmost prudence and caution; holding them liable for the slightest negligence, and that the diligence of cautious persons is not enough.\\nIn Galena & Chicago R. R. v. Fay, 16 Ill. Rep. 558, it is held that the highest degree of care, vigilance and skill are required, and that the carrier is responsible for the least neglect known to the law, short of insurance. In Frink v. Potter, 17 Ill. 406, it was held that carriers of passengers are liable for slight neglect, and that the law imposes upon them the duty of carrying their passengers safely, so far as is reasonably practicable, and that they would be liable for injury by the breaking of an axle by reason of frost, if by extraordinary care and attention the danger might have been avoided. Similar views are also maintained in Frink v. Coe, 4 Greene, Iowa Rep. 555, and in Fairchild v. California Stage Co., 13 Cal. Rep. 599.\\nIn Kenney v. Neil, 1 McLean 540, it was held that a passenger carrier was not liable for casualities which human sagacity could not foresee, and against which the utmost prudence cannot guard ; that the driver is bound to exercise the utmost care and must be skilful, and that the employer is responsible for the least degree of imprudence and want of care in the driver; and much the same is Marcy v. Tallmage, 2 McLean 157, holding that the carrier is bound to carry his passengers safely as far as human skill can accomplish that object, and is chargeable for the least-negligence or want of skill or prudence.\\nIn our own State it is said, per Eastman, J., that railroads as carriers of passengers are liable for all damages that may arise to them from even the smallest negligence on their part-, or that of their servants. Cornwall v. The Sullivan R. R., 28 N. H. 169. A similar statement is made in Clark v. Barrington, 41 N. H. 51.\\n\\u2022The authorities cited fully sustain the general view taken by the judge in his instructions to the jury, and the question is whether in the illustrations given there was any thing calculated to mislead them. The objection most urged is the statement that defendants must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business.\\nThis is substantially the language of Judge Redfield in 2 Railways, 3d ed. page 187, and is apparently based upon the idea that the rule' calling for the utmost degree of care, vigilance and precaution must be understood not to require such a degree of vigilance as will be wholly inconsistent with the mode of conveyance adopted, and render it impracticable. This is the doctrine of Tuller v. Talbot, 23 Ill. 357, where it is also said that this rule does not require the utmost degree of care which the human mind is capable of inventing, as such a rule would involve the expenditure of money, and the employment of hands so as to render it perfectly safe, and would prevent all persons of ordinary prudence from engaging in that kind of business. But the rule does require that the highest degree of practicable care and diligence should be used that is consistent with the mode of transportation adopted.\\nTo the general views thus expressed we perceive no objection. Indeed, it is quite manifest, we think, that in fixing upon a measure of the obligation of common can-iers by railway to the travelling public, it is proper to consider how far it is reasonably practicable for them to go in view of the expenditures that might be required; and, looking at the subject as a whole, we think it could never have been intended to fix upon a measure of care that would render it practically impossible to continue this mode of transportation.\\nAt the same time the standard of care and diligence for a particular railroad cannot be made to depend upon its pecuniary condition, or the amount of its earnings ; but having undertaken to carry passengers- in that mode, its duty is to provide a track, rolling stock and all other agencies suited to the nature and extent of the business it proposes to do ; and the measure of its care and diligence is not to fluctuate with the changes in its revenues. A direction to the jury, therefore, that' should make the degree of care required turn upon the pecuniary means i of this particular road would be erroneous.\\nThe part of the charge particularity objected to is the direction that \\\" defendants must use such degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business.\\\"\\nThis might, and probably would, be understood to require of the defendants all practicable care to the extent of their means, which would make the ability of the corporation the measure of the care and diligence required, and that obviously is not the true test \\u2014 and judging from other parts of the instructions it was not so intended \\u2014 still the terms used are so explicit that there is reason to fear that the jury may have been misled and induced to require as a standard a higher degree of care and diligence than the law - actually demands. It would be quite likely to be so, if it appeared that the corporation was receiving a large income from this business beyond the expenses. If, on the other hand, it appeared that the receipts did not equal the running expenses, the jury might feel at liberty to exact a lower degree of care and diligence.\\nIn respect to common highways it has been decided in this State that the standard by which their sufficiency is to be tested is not to be expanded or contracted by the wealth or poverty of the town. Winship v. Enfield, 42 N. H. 197, 208, and we think the same rule is applicable to the proprietors of railroads. They are bound to keep them in suitable repair, and to operate them with suitable care and diligence, considering the character and extent of the use to which they are applied.\\nAs before remarked, the passage under consideration is in terms much like the passage in 2 Redfield on Rail., 187 ; but upon a close examination of his statement it will not be found that the author intended to announce the doctrine that the degree of diligence was to be measured by the revenues of the particular railroad, but that in fixing a general standard of care and diligence there should not be so much required as to render this mode of conveyance impracticable.\\nThe objection to the passage in question now before us, is the danger that the jury may have understood that the defendants were bound to use all practicable care and skill to the extent of their means ; and as we do not know that their means were not understood to be ample, we cannot be sure that the jury were not misled.\\nThe jury in this case have found that there was gross negligence, and it might, perhaps, be urged that this finding shows that no harm was done by the instructions in question. We think, however, that in determining what was gross negligence, the jury would naturally and properly be influenced by the degree of care and diligence which they supposed the law required; and if that standard was carried too high they might also come to a wrong conclusion as to what was gross negligence. We, therefore, are constrained to hold that in respect to the particular direction under consideration, the charge was erroneous.\\nIt is urged also that there was error in the direction that defendants were bound to the utmost care and prudence of a very eautious person; but we think there was no error in this. It is not only in accordance with the doctrine of the elementary books, but is sustained, as we have seen, by the general current of adjudged cases.\\nIt is true that the terms used do not furnish an exact measure of the care required, but that difficulty is inherent in the nature of the subject. It has, however, this advantage that it conforms substantially to the ordinary definition of the highest degree of care required of bailees of goods, and has therefore the sanction of long use.\\nIn respect to exemplary damages, we consider the law to be well settled in New Hampshire in accordance with the instructions given to the jury, namely, that if they found that the accident was caused by the gross negligence of the defendants, they might, if they chose, give exemplary damages.\\nThe same question was fully considered in Hopkins v. Atlantic & St. L. Railroad, 36 N. H. 9, and the conclusion reached that exemplary damages might be awarded in a case like this. This decision was in 1857, and after a careful examination of the authorities on the point, we are fully satisfied with it.\\nIn Whipple v. Walpole, 10 N. H. 130, the same question was considered, and the court held that if there was gross negligence the jury might award exemplary damages.\\nIn Knight v. Foster, 39 N. H. 576, which was an action for slander, \\\\>it was held that where actual malice is shown the jury may. award exemplary damages, what the defendant ought to pay and the plaintiff ought to receive; and in Symonds v. Carter, 32 N. H. 466, it was held that in an action for slander, increased damages may be awarded for the increased malice and malignity of heart attending the uttering of the words ; and this is a recognition of the doctrine that the jury are not confined to the idea of mere compensation for the injury, but may award damages by way of punishment and example.\\nIn Perkins v. Towle, 43 N. H. 220, it was held that in trespass guare clausum fregit, exemplary damages may be recovered when there arc such circumstances of aggravation, of insult, and of malice, as would wai'rant such recovery in other cases.\\nUpon this review of the adjudged cases in our own State, we might be amply justified in saying that the question was no longer an open one here ; but as the point has been made at the bar, we have examined the decisions elsewhere and are satisfied that there is a great preponderance of authorities in favor of the doctrine adopted in this State.\\nThis doctrine is denied by an eminent jurist, Professor Greenleaf, in bis work on Evidence, vol. 2, sec. 203, in an elaborate note, in which be reviews the authorities, and urges with great force and ability that upon principle, damages should be a just compensation for the injury actually sustained, and neither more nor less; and that to allow a jury to award damages by way of example, and as a punishment for a wrong committed, beyond a just compensation for the injury done to the plaintiff, would be a departure from the true principles upon which damages are awarded, that is not countenanced by the authorities when fairly considered.\\nThe position is that for the legal wrong done to the plaintiff the defendant is bound to make full compensation ; but for the moral wrong, whether it rises to the character of an offence punishable by law or not, he is answerable to society alone; that it is especially unjust to allow the plaintiff to recover damages beyond a fair compensation for the injury by way of punishment for an offence for which the defendant is liable to be punished byr a public prosecution, inasmuch as in that way lie is liable to be punished twice for the same offence.\\nThe views of Professor Greenleaf are also expressed in an. article in the Law Reporter of April, 1847. Theie is also an able article on the same side in 3 Am. Jurist, 287, by Hon. Thomas Metcalf, which seems to have taken the lead in opposition to the doctrine in question. Qn the other hand the subject is very fully discussed and the authorities reviewed by Mr. Sedgwick in his work on Damages, 4th ed. chap. 18, page 454. In chapter 1, page 38, he lays it down that when fraud, malice, gross negligence or oppression mingles with the controversy, the law, instead of adhering to the system or the language of compensation, adopts a wholly different rule. It permits the jury to give what are called punitory, vindictive or exemplary damages ; in other words blends together the interests of society and of the aggrieved individual, and gives damages not only to recompense the sufferer but to punish the offender. See also Mr. Sedgwick's article on the same subject in Law Reporter of June, 1847, in reply to Professor Greenleaf. The general doctrine of Mr. Sedgwick is supported by a great weight of authority. Chancellor Kent in 1 Com. 9th ed., 627, says that it appears to him that the conclusions in Mr. Sedgwick's treatise are well warranted by the decisions, and that the attempt to exclude all consideration of the malice and wickedness and wantonness of the tort, in estimating a proper compensation to the victim is impracticable, visionary, and repugnant to the just feelings of social sympathy.\\nMr. Parsons, in his work on Contracts, 2d vol., page 449, expresses an opinion that the courts of this country generally permit a jury in certain cases to give damages which exceed the measure of legal compensation, and are justified by the principle that one found guilty of so great an offence should be made an example of in order to deter others from the like wrong doing.\\nIn the United States courts the doctrine of Mr. Sedgwick is recognized. In Day v. Wentworth, 13 How. 363, Grier, J., in delivering the opinion of the court, said: \\\" It is a well established principle of the common law that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his of-fence rather than the measure of compensation to the plaintiff. We are aware,\\\" he says, \\\"that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument.\\\" As suggested byPe.rley, C. J., in Hopkins v. The At. & St. L. R. R., the allowance of exemplary damages at the suit of a private individual finds countenance in that legislative policy which by giving pecuniary penalties to private prosecutors of certain offences seeks to enlist their aid in enforcing many salutary penal statutes.\\nThat doctrine which allows a jury to award exemplary damages to the sufferer by wrongful acts which the public is strongly interested to punish, stands upon the same footing, so far, at least, as the damages are merely punitory ; and it is quite obvious, we think, that this furnishes the most efficient, if not the only, means of correcting many very serious social.abuses ; and among these, that gross negligence which puts at unnecessary hazard the life and limbs of large numbers of passengers must take a high rank. It is not, therefore, to be regretted that the law has established an exception to the ordinary rule in respect to damages, and armed the sufferer in such cases with the powers to administer a corrective which cannot or will not otherwise be efficiently applied at all.\\nThe doctrine is not the result of direct legislation as is the case with qui tam actions, but we think it has become too firmly established to be shaken without legislative action.\\nIt has been contended that however it may be in cases of fraud, malice and oppression, exemplary damages cannot be awarded for gross negligence merely. It will be observed, however, that it is otherwise settled in this State in the cases of Whipple v. Walpole, and Hopkins v. Atlantic & St. L. R. R., before cited. It is also the doctrine of Sedgwick as before stated. In some cases it has been held that the negligence must be of such a character as to evince a wanton disregard of human.life and safety, equivalent to malice, as in Pickett v. Crook, 20 Wis. 358; Wardrole v. Cal. Stage Co. 7 Cal. 118.\\nIt has been held also that when the public wrong is punishable criminally, exemplary damages ought not to be awarded, upon the ground that if it were otherwise the wrong-doer would be twice punished for the same offence; and this is the doctrine in Massachusetts, Austin v. Wilson, 4 Cush. 273; and in Indiana, Wassauren v. Rickert, 18 Ind. 350; Humphries v. Johnson, 20 Ind. 190. On the other hand, it is held in New York in Cook v. Ellis, 6 Hill, 466, that in trespass for assault and battery the defendant shall not be permitted to prove in mitigation of damages that he has already been convicted and fined for the same offence, and has paid the fine, though it is supposed to be the correct practice to continue the criminal proceeding to await the decision of the civil suit, and then impose a fine in view of it, which is said to be the English practice ; to which authorities are cited. So in Fry v. Bennett, 4 Duer's Rep. 247, which was a suit for a libel in the JSTew York Herald, it was held that plaintiff might recover exemplary damages, although defendant was liable to indictment; and such is the doctrine of Cole v. Tucker, 6 Texas 266. In Corwin v. Walton, 18 Mo. 71, it was held that exemplary damages might be recovered, although defendant had been convicted and fined for the same assault and battery, but that this fact might be considered in mitigation of damages, and also that the court in fixing the amount of the fine might properly consider a recovery in a civil suit. So in Ohio it is held that exemplary damages may be awarded, although defendant may have been prosecuted criminally. Roberts v. Mason, 10 Ohio, (N. S.) 277. See also Sedgwick on Dam. 4th ed. 535, and cases, where the weight of authority is supposed to be against such a limitation. It is not necessary, however, to determine this question as it does not arise on this case. '\\nIt is contended by the defendants that there was no evidence tending to prove gross negligence; there was evidence, however, tending to prove that the accident was caused by the breaking of a rail about two feet from the end where the track was vt -r much curved and about fifteen or twenty feet from Amonoosuck riv and that two passenger cars were thrown part way down the bank; that the rail which broke was inside the curve ; that it was an old rail and appeared very much worn and battered and broomed up from one to two feet from the end ; that it was a U rail, the old style, and that the T rail is the new style ; and that the train was going not over twenty miles the hour. It further appeared that the broken rail was not preserved or produced at the trial, although the defendants offered evidence to show that the breakage was caused by a hidden defect in the rail, which they were not in fault for not detecting.\\nWe are of the opinion, upon the whole, that there was evidence to go to the jury upon the point of gross negligence. It tended to show that the accident was caused by a defective rail, and that this one, at a place somewhat dangerous, was old and very much worn and battered and broomed; and whether there was gross carelessness in permitting that rail to remain under the circumstances was peculiarly for the jury to decide. Upon this point, therefore, we think there was no error; but for error in the instructions there must be\\nA nexo trial.\"}"

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+"{\"id\": \"1051037\", \"name\": \"In the Matter of Irvin D. Gordon and Priscilla M. Gordon\", \"name_abbreviation\": \"In re Gordon\", \"decision_date\": \"2002-05-10\", \"docket_number\": \"No. 2001-047\", \"first_page\": 693, \"last_page\": \"700\", \"citations\": \"147 N.H. 693\", \"volume\": \"147\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:11:26.300828+00:00\", \"provenance\": \"CAP\", \"judges\": \"Brock, C. J., and Dalianis and Duggan, JJ., concurred.\", \"parties\": \"In the Matter of Irvin D. Gordon and Priscilla M. Gordon\", \"head_matter\": \"Rockingham\\nNo. 2001-047\\nIn the Matter of Irvin D. Gordon and Priscilla M. Gordon\\nArgued: February 13, 2002\\nOpinion Issued: May 10, 2002\\nSheehan Phinney Bass + Green, P.A., of Manchester {James E. Higgins on the brief and orally), for the plaintiff.\\nWiggin & Nourie, PA, of Manchester {L. Jonathan Boss and Doreen F. Connor on the brief, and Ms. Connor orally), for the defendant.\", \"word_count\": \"2644\", \"char_count\": \"16314\", \"text\": \"NADEAU, J.\\nThe plaintiff, Irvin D. Gordon (Husband), appeals certain findings and rulings recommended by the Marital Master {Pamela D. Kelly, Esq.) and approved by the Superior Court {Galway, J.) in his divorce decree. The master found the following facts: Husband and the defendant, Priscilla M. Gordon (Wife), were married in 1986. They have one child together and Wife has two children from a prior marriage. Both parties sought a divorce on grounds of irreconcilable differences.\\nWe will uphold the trial court's findings and rulings unless they lack evidential support or are legally erroneous. See In the Matter of Fowler and Foioler, 145 N.H. 516, 519 (2000). \\\"The trial court has broad discretion in determining and ordering the distribution of property and the payment of alimony in fashioning a final divorce decree.\\\" Id. We will not overturn the trial court's ruling unless its exercise of that discretion is unsustainable. See id.; State v. Lambert, 147 N.H. 295, 296 (2001) (setting forth unsustainable exercise of discretion standard).\\nHusband, an attorney, raises a number of issues on appeal. First, he contends that the master erred in valuing his \\\"ceased member\\\" interest in his law firm. The master found that as a member of his law firm, he would be entitled to receive a \\\"ceased member\\\" interest upon his death or resignation from the firm, in an amount determined under a computation prescribed in the firm's membership agreement. Each party introduced expert testimony as to the value of the ceased member interest. Husband's expert calculated the fair market value of that interest by determining the present value of the three annual payments he expected Husband would receive after his retirement in 2013. He did so by starting with Husband's share of the firm's current valuation, projecting that value forward to 2013, and then discounting back to present value three payments, each one third of the projected future value of Husband's interest in the firm, that he expected him to receive in 2014, 2015 and 2016. The expert also deducted the present value of taxes he expected would be due upon receipt of those payments. He arrived at a value of $25,438.\\nWife's expert, on the other hand, valued Husband's interest as if he were to retire today. He determined a present value of either $184,977 or $166,339, depending upon whether the calculation was made using the firm's tax return or financial statements, respectively. The master accepted the Wife's expert's valuation method. Husband argues that the master erred in valuing his ceased member interest as if he had already retired or died. He notes his uncontradicted testimony that he is in good health and does not intend to leave the firm until 2013. He then contends that \\\"both New Hampshire law . and accepted economic principles\\\" require that his ceased member interest be discounted to reflect the time value of money.\\nHusband correctly notes that courts generally use fair market value in determining an appropriate division of property in divorce proceedings. See Rattee v. Rattee, 146 N.H. 44, 50 (2001). \\\"Fair market value is the price a willing buyer and a willing seller would probably arrive at through fair negotiations, taking into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining.\\\" Id. (quotation omitted). Husband's expert's valuation method posited a sale to a third party today of his right to receive his ceased member interest in the future. His expert therefore employed a discount factor that reflected the \\\"layers of return\\\" a third-party investor would require to compensate for the risks he was undertaking, such as the risk involved in investing in the equity of a company.\\nWife's expert, on the other hand, reasoned that there is no need to look for a hypothetical willing buyer when Husband's firm is required to \\\"buy\\\" his ceased member interest, at the price determined under the membership agreement, whenever he chooses to withdraw from the firm. Moreover, Husband's expert agreed that he cannot sell his interest in the firm to anyone other than the firm. Both experts testified that he could retire now if he chose to do so, and the master found that he is \\\"entitled to be paid his ceased member's share earlier than his retirement age if he leaves the firm prior to that date.\\\" Although the master found that the membership agreement \\\"provid[ed] substantial disincentives to withdraw and practice law in competition with [the firm],\\\" testimony indicated that it was speculative at best whether and how such disincentives would or could be applied to Husband.\\nWe have adopted the -view that \\\"the trial court has wide discretion in determining the date on which a value should be placed on marital assets.\\\" Hillebrand v. Hillebrand, 130 N.H. 520, 523-24 (1988). We conclude that the trial court sustainably exercised its discretion in valuing Husband's ceased member interest in an amount he could realize today, even though he may choose not to do so. \\\"The fact that an actual sale of [Husband's] interest in the company was not contemplated at the time of the final hearing is irrelevant to the concept of fair market value.\\\" Rattee, 146 N.H. at 51. The court could have found such a valuation more reasonable than one based upon a hypothetical sale that Husband's own expert admitted could not take place. The court also could have found it more equitable to adopt Wife's higher valuation, which Husband has the present ability to realize at his sole election, rather than one severely discounted to reflect future uncertainties and their attendant risks, which, again, are predicated upon Husband's sole election not to retire at the present time.\\nHusband next contends that the master erred by including in the division of his retirement accounts amounts attributable to contributions made prior to the marriage and after the libel for divorce. He argues his retirement accounts, specifically an IRA and a 401(k) account, should have been divided in accordance with the rule developed in Hodgins v. Hodgins, 126 N.H. 711 (1985), and reiterated in subsequent cases, that \\\"only those pension benefits which are attributable to the retiree's employment during the marriage are subject to distribution.\\\" Rothbart v. Rothbart, 141 N.H. 71, 75 (1996) (quotation omitted).\\nWife argues that RSA 458:16-a (Supp. 2001) governs distribution of the retirement accounts. We agree.\\nRSA458:16-a, I, provides:\\nProperty shall include all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties. Intangible property includes, but is not limited to, employment benefits, vested and non-vested pension or other retirement benefits, or savings plans. To the extent permitted by federal law, property shall include military retirement and veterans' disability benefits.\\nSection II then provides, in part, that upon a decree of dissolution of marriage, \\\"the court may order an equitable division of property between the parties.\\\" RSA 458:16-a, II. \\\"When read in conjunction, paragraphs I and II show the legislature's intention that marital property includes any property acquired up to the date of a decree of legal separation or divorce.\\\" Holliday v. Holliday, 139 N.H. 213, 215 (1994). The retirement accounts at issue were acquired prior to the date of divorce. Accordingly, we find no error.\\nHusband next argues that the master erred in excluding Wife's interest in a family trust from the marital estate. The master found that Wife had an interest in a family trust established by her mother, who is now deceased. The master found that her \\\"remainder interest in any assets of this trust is conditioned on her surviving her father, and the trust funds not having been expended for his needs during his lifetime.\\\" The master concluded that her interest in the trust was speculative and did not include it in the marital estate.\\nHusband argues that Wife's interest in the trust should have been included in the marital estate in accordance with Flaherty v. Flaherty, 138 N.H. 337, 340 (1994). We need not address this argument because the master made an alternative ruling, which Husband has not challenged, awarding Wife's interest in her mother's trust \\\"solely to her as a matter of equitable division in this divorce.\\\" Indeed, we note that Husband's own requested findings of fact and rulings of law sought to award Wife \\\"her interest in the Trust from the marital estate, free and clear of any claim of [Husband].\\\"\\nHusband also argues that the master erred in awarding a fund given to Wife by her mother, allegedly for the purpose of paying for the children's higher education, solely to her, while at the same time requiring him alone to pay for their son's college education. Husband argues:\\nIn short, it was error for the master, having accepted Wife's testimony that the A.G. Edwards account funds were to be applied for the \\\"children's\\\" education, to then rule that the funds were to be awarded solely to Wife without any obligation to apply any portion of them for the children's education, while simultaneously shifting responsibility for the parties' son's college education exclusively to the appellant.\\nWe disagree. First, the master did not accept Wife's testimony that the funds \\\"were impressed with an oral trust\\\" for the education of her children from her former marriage. The master found \\\"no circumstantial guarantees of trustworthiness\\\" in her testimony about the oral trust and declined to exclude the funds from the marital estate. The master nevertheless concluded:\\nUnder the circumstances, the fact that the funds represent a gift from a family member in anticipation of death and they have been treated by the parties as separate property compels the master to conclude that they ought to be awarded exclusively to Wife, thus creating an unequal but equitable property division under the provisions of RSA 458:16-a(II)(n).\\nMoreover, we note that Husband himself requested a ruling that the fund be awarded to Wife free and clear of any claim by him. He also testified that he was willing to accept responsibility for his son's higher education. Accordingly, we find no error.\\nHusband next contends that the master erred when, in dividing the parties' property and awarding alimony and child support, she assumed that Wife was entitled to be maintained at the standard of living enjoyed during the marriage irrespective of his available income and standard of living. He argues that no New Hampshire case or statute stands for the proposition that a spouse is entitled to support in order to continue in the standard of living to which she became accustomed during the marriage. Rather, he argues, the \\\"style of living\\\" during the marriage is a circumstance to be taken into account in determining whether the reasonable needs of the party seeking alimony can be met in the absence of alimony. See RSA 458:19,1(a). He also asserts that given the duplication of expenses necessitated by the division of one household into two, it is impossible for both parties to enjoy, post-divorce, the standard of living to which they became accustomed during the marriage.\\nWe first note that the master invoked the marital standard of living only in connection with the award of alimony. We therefore reject Husband's contention that the error he alleges also tainted the division of property and the child support award. We acknowledge that the master stated, quoting Fowler, 145 N.H. at 521, that she \\\"considered that the parties enjoyed a comfortable lifestyle and that Wife is entitled to financial assistance from Husband in order to 'enjoy the standard of living to which she was long accustomed in her marriage.' \\\" We do not, however, interpret this statement as expressing a belief by the master that Husband would have been required, under any circumstances, to maintain Wife at the standard of living enjoyed during the marriage. Rather, the master's recommended order as a whole reveals that the master considered a number of factors, including Wife's need for alimony while pursuing her education, and Husband's current ability to pay alimony. In particular, the court noted that she earns just over $800 a month while his monthly income is approximately $13,000. We detect neither legal error nor an unsustainable exercise of discretion in the master's award of alimony in the amount of $2,000 per month for the first two years after the divorce and $1,000 per month for the following three years.\\nFinally, Husband argues that the master erred in awarding child support by: (1) failing to determine the amount presumptively payable under the child support guidelines set forth in RSA chapter 458-C; and (2) after finding that an adjustment in child support was warranted, failing to make an adequate adjustment.\\nOur child support statute, RSA chapter 458-C, \\\"clearly mandates that the superior court either apply the guidelines to determine the parties' respective support obligations, or make a specific finding on the record that application of the guidelines would be unjust or inappropriate.\\\" Giles v. Giles, 136 N.H. 540, 544 (1992); see also RSA 458-C:4, II. The decree of divorce contains no findings regarding child support, but rather refers to an accompanying uniform support order. The uniform support order, in turn, is a standardized form that provides three choices regarding compliance with the child support guidelines: (1) the award does comply; (2) it cannot be determined whether the award complies because the obligor defaulted and therefore a reasonable estimate of the obligor's income was used; and (3) an adjustment from the guidelines amount was warranted by special circumstances, which are to be explained in the space provided. The third choice was selected and \\\"shared custody\\\" was provided as an explanation.\\nWe hold that this terse explanation, unaccompanied by additional findings, does not satisfy the requirement for a \\\"specific finding on the record that application of the guidelines would be unjust or inappropriate.\\\" Giles, 136 N.H. at 544. We therefore vacate the child support order and remand to the trial court for specific findings explaining whether it finds application of the guidelines unjust or inappropriate, and, if so, explaining any adjustment it makes to the application of the guidelines. See RSA 458-C:5 (Supp. 2001).\\nHusband argues that the trial court also erred in failing to calculate the amount presumptively payable under the child support guidelines. He cites federal regulations governing coverage of state child support enforcement programs under title IV-D of the Social Security Act, which provide in part: \\\"Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines.\\\" 45 C.F.R. \\u00a7 302.56(g) (2001); see also 45 C.F.R. \\u00a7 301.3 (2001). We note, however, that our state statutes do not explicitly require trial courts to calculate the guidelines award before determining that an adjustment would be appropriate. See RSA 458-0:4, II; :5. We nevertheless conclude, irrespective of federal requirements, that a specific finding as to the amount of child support that would be generated under the guidelines will facilitate our review of a finding that application of the guidelines would be unjust or inappropriate. We therefore instruct the court on remand to make a specific finding as to the amount of child support presumptively payable under the guidelines. See RSA 458-C:4, II.\\nBecause we remand the child support issue for further findings, we need not address Husband's remaining arguments on that issue.\\nAffirmed in part; vacated in part; remanded.\\nBrock, C. J., and Dalianis and Duggan, JJ., concurred.\"}"

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+"{\"id\": \"105125\", \"name\": \"Appeal of Fred Fuller Oil Co., Inc. (New Hampshire Department of Labor)\", \"name_abbreviation\": \"Appeal of Fred Fuller Oil Co.\", \"decision_date\": \"2000-01-31\", \"docket_number\": \"No. 96-667\", \"first_page\": 607, \"last_page\": \"612\", \"citations\": \"144 N.H. 607\", \"volume\": \"144\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:23:27.412573+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Appeal of Fred Fuller Oil Co., Inc. (New Hampshire Department of Labor)\", \"head_matter\": \"Department of Labor\\nNo. 96-667\\nAppeal of Fred Fuller Oil Co., Inc. (New Hampshire Department of Labor)\\nJanuary 31, 2000\\nLeeming & Leeming, of Concord (Simon C. Leeming on the brief and orally), for the petitioner.\\nSoule, Leslie, Kidder, Zelin, Sayward & Loughman, of Salem (Diane M. Gorrow on the brief and orally), for the respondent.\", \"word_count\": \"2179\", \"char_count\": \"13387\", \"text\": \"HORTON, J.\\nThe petitioner, Fred Fuller Oil Company, Inc., (Fuller Oil) appeals the decision of the New Hampshire Department of Labor (DOL) ruling that it violated the Whistleblowers' Protection Act (Act), RSA 275-E-.2 (1999), when it discharged the respondent, Barry S. Leonard, Sr. The DOL ruled that Fuller Oil illegally fired Leonard for reporting what he reasonably believed was a violation of the law. See RSA 275-E:2, 1(a). We vacate and remand.\\nFrom November 1992 until his discharge on January 12, 1996, Leonard was employed by Fuller Oil as a fuel-oil delivery driver. Throughout December 1995 and early January 1996, Leonard worked in excess of sixty hours per week due to harsh weather conditions, which had increased the demand for fuel oil. On January 10, 1996, the Federal Highway Administration of the United States Department of Transportation declared a regional emergency pertaining to the transportation of heating fuels in New Hampshire, thereby suspending certain maximum driving-time limitations for fuel-oil delivery drivers. See 49 C.F.R. \\u00a7 390.23 (1998). Also on that date, Fuller Oil posted a notice at Leonard's place of employment indicating that the company needed volunteer fuel-oil delivery drivers on Sunday, January 14, 1996. The notice did not mention the state of emergency.\\nOn January 12, 1996, a supervisor informed Leonard that all employees would be required to work on January 14 and that any questions should be directed to the president, Fred Fuller. Later that afternoon, Leonard contacted Fuller to inform him that he could not work on that day. At the DOL hearing, Leonard testified:\\n. I told [Fuller] I need a day off, I was tired. My wife was coming down with another MS attack where her eyes get blurry and she was getting really stressed out from all the hours I was working and I need to spend some time with her and I had also planned a snowmobile trip for that Sunday afternoon.\\nLeonard further testified that after he stated that he would not work on Sunday, Fuller told him that if he refused to work on Sunday, he should return the truck and he would be fired. Shortly thereafter, Leonard dropped off his truck and did not return to work.\\nOn March 7, 1996, Leonard filed a whistleblowers' complaint with the DOL, see RSA 275-E.-4, I (1999), alleging that Fuller Oil wrongfully discharged him for reporting its violation of laws and regulations limiting the number of hours commercial drivers may work. See RSA 275-E:2, 1(a).\\nAfter hearing, the DOL issued a decision including findings that Fuller Oil had: (1) violated statutory and regulatory provisions regarding ill or fatigued commercial drivers and the mandatory \\\"day of rest\\\" for commercial drivers; and (2) discharged Leonard for his refusal to deliver oil on January 14. The DOL ruled that Fuller Oil had violated RSA 275-E:2 by discharging Leonard for reporting what he believed to be Fuller Oil's violations of law. The DOL reinstated Leonard's employment with Fuller Oil retroactive to January 12, 1996, and ordered the payment of all past wages and fringe benefits and restoration of seniority rights.\\nOn appeal, Fuller Oil argues that the DOL erred in: (1) finding that Fuller Oil required Leonard to \\\"execute a directive which . . . violates any law or rule,\\\" RSA 275-E:3 (1999); (2) ruling that Leonard was terminated for \\\"reporting\\\" a violation when the purported report did not include a reference to a \\\"violation of any law or rule,\\\" RSA 275-E:2, 1(a); (3) ruling that Fuller Oil violated the Act when Leonard had not satisfied the factual predicates necessary to invoke its protections, see RSA 275-E:2, II, :4, I; and (4) denying rehearing pursuant to RSA 541:3 (1997). Fuller Oil also argues that the decision of the DOL was clearly unreasonable, unlawful, and unjust.\\nWe will not set aside an order of the DOL except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that such order is unjust or unreasonable. See RSA 541:13 (1997). The agency's findings of fact are deemed prima facie lawful and reasonable. See id. \\\"This presumption may be overcome only by a showing that there was no evidence from which the [agency] could conclude as it did.\\\" Appeal of Briand, 138 N.H. 555, 558, 644 A.2d 47, 49 (1994).\\nWe begin our analysis with the observation that, as it relates to this case, the Act protects two distinct activities on the part of employees. RSA 275-E:2, 1(a) (section two) prohibits an employer from terminating an employee who reports what the employee reasonably believes is illegal activity. RSA 275-E:3 (section three) prohibits an employer from terminating an employee who refuses to follow an illegal directive.\\nLeonard brought his complaint against Fuller Oil under section two, alleging that he was fired for reporting Fuller Oil's violation of statutes and regulations limiting the number of hours a commercial driver may work. The DOL hearing officer who heard the case expressly decided the case under section two, concluding that Leonard \\\"was illegally discharged as a result of his reporting of what he reasonably believed was a violation of the law.\\\" The hearing officer's primary findings, however, related to section three: \\\"[T]he claimant. . . was actively discharged for his failure to make fuel oil deliveries in violation of RSA 275:33 [(1999) (the 'day of rest' statute)] and [49 C.F.R. \\u00a7 392.3 (1998) (the federal 'ill or fatigued operator' regulation)].\\\"\\nLeonard conceded at oral argument that he brought his complaint below exclusively under section two and that he had raised issues relating to the illegality of Fuller Oil's actions only to establish his \\\"reasonable cause to believe\\\" that the actions he reported were, indeed, violations of the law. RSA 275-E:2, 1(a). In light of this concession and the fact that Leonard did not complain of a section three violation below, we need not address Fuller Oil's first argument.\\nFuller Oil's second argument is that Leonard's complaint to Fred Fuller did not constitute a \\\"report\\\" under section two, which provides, in pertinent part:\\nI. No employer shall discharge, threaten, or otherwise discriminate against any employee regarding such employee's compensation, terms, conditions, location, or privileges of employment because:\\n(a) The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States .\\nRSA 275-E:2, I.\\nFuller Oil contends that Leonard's subjective complaints to Fuller, without reference to any \\\"violation of any law or rule,\\\" do not constitute a \\\"report\\\" under section two. According to Fuller Oil, although citation to a particular statute or regulation is not necessary, an employer must be put on notice that the employee is blowing the whistle by objective reference to violation of a law. Leonard, on the other hand, maintains that an employee is not required to refer to a violation of the law, but rather satisfies the requirements of a report if he or she raises a concern that implicates a law. Thus, Leonard argues that his statement to Fuller, \\\"I need[ed] a day off, I was tired,\\\" is sufficient to constitute a report under RSA 275-E:2, 1(a).\\nThe Act does not defin\\u00e9 what constitutes a \\\"report,\\\" nor have we previously been called upon to decide its parameters. The statute does not expressly require a reporting employee to cite to the alleged violation, and a survey of jurisdictions employing whistleblower protection statutes similar to our own reveals no requirement that an employee's report include such a reference to a violation of law. See, e.g., Marques v. Fitzgerald, 99 F.3d 1, 6 (1st Cir. 1996) (jury could find that employee's safety complaints, which did not include reference to a violation, constituted a report under Rhode Island's whistleblower protection statute). Indeed, to impose such a requirement would exclude an unsophisticated employee from the protections of the Act simply because he or she failed to invoke a specific law that the employer has allegedly violated. We conclude that the better approach is to presume that an employer is familiar with the laws and regulations governing its business and to consider a report to have been made if a reasonable employer would have understood from an employee's complaint that the employee was reciting a violation of law.\\nHaving clarified the standard for \\\"reporting\\\" under section two, we now turn to the question of whether the hearing officer properly determined that Fuller Oil violated section two and conclude that he did not. Although explicitly concluding that Fuller Oil violated section two of the Act, the hearing officer made findings which support only a section three violation. He found that Fuller Oil discharged Leonard for \\\"failure to make fuel oil deliveries,\\\" but made no factual findings supporting his conclusion that Fuller Oil discharged Leonard for reporting what Leonard believed to be Fuller Oil's violation of the law. Specifically, the hearing officer made no finding that Leonard reported violations to Fuller Oil. Nor did he make findings to support a determination that Leonard's termination resulted from his report. See RSA 275-E:2,1 (requiring that the discharge be \\\"because: . . . [t]he employee . . . reports . a violation\\\"); accord, Marques, 99 F.3d at 4 (construing Rhode Island statute to require that \\\"an employee must demonstrate that there was a causal connection between the report and the termination\\\"); Bard v. Bath Iron Works Corp., 590 A.2d 152, 154 (Me. 1991) (noting that a prima facie case of retaliation in violation of Maine statute requires causal link between the employee's reporting and the termination).\\nBecause the hearing officer failed to make findings that Leonard reported what he reasonably believed to be violations and that Filler Oil discharged Leonard as a result of Leonard's reporting, we vacate the DOL's decision and remand for such further proceedings as the DOL should deem necessary.\\nFuller Oil next argues that the hearing officer erred in concluding that Fuller Oil violated section two when Leonard had not satisfied the factual predicates of a claim under that section. RSA 275-E:2, II provides that an employee is not entitled to the protections of section two \\\"unless the employee first br[ings] the alleged violation to the attention of a person having supervisory authority with the employer, and then allow[s] the employer a reasonable opportunity to correct that violation.\\\"\\nAs explained in Appeal of Bio Energy, 135 N.H. 517, 607 A.2d 606 (1992), the Act contemplates a series of events: notice to the employer of a violation; followed by an opportunity for the employer to remedy the violation; and, ultimately, if necessary, report of the violation to a higher authority. Id. at 519-21, 607 A.2d at 608-09. In that case, we concluded that in order \\\"to promote the dual purposes-of the Act \\u2014 to encourage employees to come forward and report violations without fear of losing their jobs and to ensure that as many alleged violations as possible are resolved informally within the workplace,\\\" the employee is protected at the time he or she \\\"begins the process of complying with the Act, as specified in RSA 275-E:2, II.\\\" Id. at 521, 607 A.2d at 609.\\nIn the case before us, Leonard complained to Fred Fuller, the president of the company, unquestionably a \\\"person having supervisory authority with the employer,\\\" as required by RSA 275-E:2, II. He thus began the process of complying with the Act, thereby availing himself of its protections. See id. The fact that he was terminated immediately before being able to complete the process, does not justify the withholding of the Act's protections here any more than it did in Appeal of Bio Energy. We therefore conclude that Leonard satisfied the requirements of RSA 275-E:2, II.\\nFuller Oil also argues that Leonard did not satisfy the requirements of RSA 275-E:4, I, which provides that an employee seeking a DOL hearing under either section two or section three must \\\"first ma[ke] a reasonable effort to maintain or restore such employee's rights through any grievance procedure or similar process available at such employee's place of employment.\\\" Fuller Oil contends that although the hearing officer found that \\\"the employer had no written grievance procedure,\\\" such finding is not dispositive of the issue of whether there existed \\\"any grievance procedure or similar process\\\" in light of testimony regarding. Fuller's \\\"open door policy.\\\"\\nBecause we remand on other grounds, we need not determine whether the hearing officer's findings on this issue are sufficient. Upon remand, the hearing officer may make further findings and rulings with respect to whether Leonard satisfied his obligations under RSA 275-E.-4, I.\\nIn light of our disposition of this case, we need not address the parties' further arguments.\\nVacated and remanded.\\nAll concurred.\"}"

nh/105289.json

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+"{\"id\": \"105289\", \"name\": \"Appeal of Amalgamated Transit Union, Local 717 (New Hampshire Public Employee Labor Relations Board)\", \"name_abbreviation\": \"Appeal of Amalgamated Transit Union, Local 717\", \"decision_date\": \"1999-11-23\", \"docket_number\": \"No. 98-038\", \"first_page\": 325, \"last_page\": \"330\", \"citations\": \"144 N.H. 325\", \"volume\": \"144\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:23:27.412573+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Appeal of Amalgamated Transit Union, Local 717 (New Hampshire Public Employee Labor Relations Board)\", \"head_matter\": \"Public Employee Labor Relations Board\\nNo. 98-038\\nAppeal of Amalgamated Transit Union, Local 717 (New Hampshire Public Employee Labor Relations Board)\\nNovember 23, 1999\\nCraig, Wenners & Craig, P.A., of Manchester ('Vincent A. Wenners, Jr. and Stephanie Stergiou Ferro on the brief, and Mr. Wenners orally), for the petitioner.\\nDevine, Millimet & Branch, P.A., of Manchester (Diane Murphy Quinlan and John E. Friberg, Jr. on the brief, and Mark T. Broth orally), for the respondent, Manchester Transit Authority.\", \"word_count\": \"1928\", \"char_count\": \"12375\", \"text\": \"JOHNSON, J.\\nThe petitioner, Amalgamated Transit Union, Local 717 (union), appeals a decision of the public employee labor relations board (PELRB), in which the PELRB refused to implement an arbitrator's award ordering the respondent, the Manchester Transit Authority (MTA), to reinstate two union employees to their positions after testing positive for drug use by vacating the arbitrator's award. We affirm and remand.\\nThe MTA is a public employer of driver-operators, mechanics, maintenance personnel, and other employees. The union is the duly certified bargaining unit for MTA employees. The MTA and the union entered into a collective bargaining agreement (CBA) that included a grievance process concluding with final and binding arbitration.\\nThe arbitrator found the following facts. In addition to providing general passenger service on established bus routes, the MTA provides bus services under a contract with the Manchester School District for students in the Manchester public schools. MTA buses used for school purposes carry signs indicating that the buses are within a drug-free zone. See RSA 193-B:1, :2 (Supp. 1998).\\nTed Urban was employed in the summer of 1992 as a mechanic at the MTA garage. His duties included bus repair and maintenance, retrieval of broken buses, and plowing snow with a large dump truck at the garage lot. Urban tested positive for marijuana in a random drug test. He was suspended on June 26, 1995, and was advised that, under federal regulations issued under the Omnibus Transportation Employee Testing Act of 1991, he would be randomly tested six times in the next year and that he would be terminated if he tested positive a second time. On April 3, 1996, Urban again tested positive. He was suspended on April 11, 1996, when the employer learned he tested positive, and on May 22, 1996, was terminated by the MTA.\\nDave Conway was hired by the MTA in September 1985 and worked as a bus driver. Except for one minor, non-drug-related incident in 1987, Conway had a clean disciplinary record with the MTA. Conway's name was randomly selected by computer, and he was taken while driving his route on May 26, 1996, and tested for drug use. On June 6, 1996, the MTA suspended him because his test results were positive for canniboids, and ultimately terminated Conway on June 19, 1996. Conway acknowledged that he smoked a marijuana cigarette the weekend before he was tested.\\nThe arbitrator also found that in 1990, the MTA \\\"adopted a policy stating that use of drugs in the workplace was prohibited and that employees who violated the policy were subject to discipline up to termination.\\\" Not until June 26, 1996, however, did the MTA adopt a formal \\\"zero tolerance\\\" drug policy requiring discharge on the first incident of an employee testing positive for drugs.\\nIn February and March of 1997, an arbitrator heard the grievances filed in the Urban and Conway discharges. In both cases, the issues involved whether each employee was discharged for just cause. The arbitrator found that \\\"[n]either grievant was tested because of alleged impairment in his job performance, and there is no evidence that either grievant was at any time impaired because of drug use.\\\"\\nThe arbitrator reversed the disciplinary terminations in both cases for several reasons. First, the MTA's \\\"zero tolerance\\\" drug policy, adopted on June 26, 1996, was not in effect when either Urban or Conway was discharged. Second, with respect to the Conway matter, termination after testing positive once was inconsistent with the CBA provision that declared \\\"when discipline is to be given, it shall be given in a fair and progressive manner for repeated offenses.\\\" Third, the Manchester School District merely prohibits \\\"[a]ny one, including bus drivers and monitors, caught under the influence (even once)\\\" from interacting with students. Fourth, the arbitrator found that neither employee was under the influence while on the job. Fifth, federal transportation regulations \\\"do not prescribe the level of discipline to be imposed when an employee tests positive for drugs on one occasion without any evidence of impairment.\\\" Finally, the arbitrator found that the MTA failed to discipline the employees within the time period prescribed in the CBA.\\nWe need not decide whether the MTA's actions in disciplining these employees contravened the express language of the limitations period outlined in the CBA because, even if it did, we hold that strong public policy would prevent enforcement of that CBA provision.\\nThe arbitrator found that there was \\\"no evidence that either grievant was at any time impaired because of drug use,\\\" and ordered the MTA to reinstate the employees to their former positions. The MTA filed an unfair labor practice (ULP) complaint with the PELRB based on the arbitrator's award reinstating the two employees, and the union cross-complained that the MTA committed an ULP by rejecting the arbitrator's decision. The PELRB found the union committed an ULP because the arbitrator's award was contrary to public policy, vacated the arbitrator's award, and dismissed the union's ULP claim. The PELRB found that \\\"in 1990, the [MTA] had adopted a policy prohibiting the use of drugs in the workplace and stating that violators were subject to discipline up to termination.\\\"\\n\\\"[A]dministrative agencies are granted only limited and special subject matter jurisdiction____\\\" 4 R. WlEBUSCH, NEW Hampshire Practice, Civil Practice and Procedure \\u00a7 1.03, at 3 (2d ed. 1997). Because administrative agencies act in a quasi-judicial capacity, see Gould v. Director, N.H. Div. of Motor Vehicles, 138 N.H. 343, 347, 639 A.2d 254, 257-58 (1994), agencies inherently have limited jurisdiction to apply strong and dominant public policy as expressed in controlling statutes, regulations, common law, and other applicable authority, to address matters necessary to resolve questions arising within the scope of their jurisdiction. Just as this court \\\"will not enforce a contract or contract term that contravenes public policy,\\\" Harper v. Healthsource New Hampshire, 140 N.H. 770, 775, 674 A.2d 962, 965 (1996), agencies may, within the confines outlined above, do the same. Here, the PELRB recognized a well-established public policy in overruling the arbitrator.\\nRelying on the dominant public policy against employees in safety-sensitive positions testing positive for drugs discussed in Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 848 (1st Cir. 1997), the PELRB ruled that the arbitrator's award could not be enforced because it violates clearly defined public policy. On appeal, the union argues that the arbitrator's award should be enforced because termination is inconsistent with the progressive discipline system established in the CBA, and with the arbitrator's finding that neither employee was impaired while working. After extensive discussion and review of applicable federal statutes, the First Circuit identified a dominant public policy against allowing employees who test positive for drug usage to perform safety-sensitive positions. See Exxon Corp., 118 F.3d at 846-48. We agree with the First Circuit's determination.\\nHaving found that a dominant public policy prohibits reinstatement to a safety-sensitive position, we next determine whether the arbitrator's award violates that policy. The union's argument parallels the argument made by the defendant union in Exxon Corp. In Exxon Corp., a truck driver who tested positive for cocaine usage was dismissed under an established CBA provision allowing discharge for that offense. Id. at 843-44. In both the instant case and Exxon Corp., the union argued that the employee should not be disciplined absent evidence of job-related impairment. Although the employee was terminated in Exxon Corp. because there was a specific CBA provision allowing for termination, we agree with the First Circuit's rationale and reject the union's position in the instant case that the employees should be reinstated absent evidence of job-related impairment. As the First Circuit stated:\\nAccording to the Union, the positive result of [the employee's] random drug test \\\"merely\\\" indicates the presence of cocaine in his bloodstream; it does not necessarily signify that [the employee] was under the influence . . . either at the time of the test or at the time he [was performing his work].\\nThe Union casts this argument so narrowly that it misses the mark. Relying upon the job-relatedness as the sole determina tive factor in permitting employers to discharge employees who test positive for drug use would force employers to wait for some other consequential indication that drugs are affecting work performance. Typically, this other indication will be an accident. The notorious mishap involving the Exxon Valdez, which produced vast environmental devastation, highlights the core problem associated with this \\\"wait-and-see\\\" approach. If we have learned anything from such catastrophes, it is that employers must act affirmatively to avoid drug-related accidents rather than wait passively for such accidents to happen.\\nId. at 849 (citations omitted). In the context of this case, implementation of the arbitrator's award would place two public transit employees \\u2014 one a driver and the other a mechanic \\u2014 back in safety-sensitive positions after testing positive for drugs. The union's argument that the MTA should reinstate the employees because there was no evidence of job-related impairment is incredible. Strong public policy may override the terms of a CBA, cf. Paperworkers v. Misco, Inc., 484 U.S. 29, 42-43 (1987), and such a policy prevents reinstatement of these two employees to their positions without a further determination that the employees have ceased drug usage. Cf. Exxon Corp., 118 F.3d at 849. The safety of students and other passengers who rely on MTA transportation on a daily basis cannot be held hostage to the employees' assertion of no job-related impairment. Implementation of the arbitrator's award would allow public transit employees testing positive for drugs to remain in their safety-sensitive positions until the employee was actually impaired on the job, foreseeably evidenced by an accident resulting in a catastrophic loss of life. Although strong public policy prohibits reinstatement without evidence of successful treatment for their drug usage, we agree with the arbitrator that neither the CBA nor dominant public policy prescribes any particular remedy for testing positive for drugs.\\nAbsent a clearly defined zero-tolerance drug policy, such as the 1996 \\\"zero-tolerance\\\" drug policy adopted after the discharges, no dominant public policy compels termination after a positive drug test. Cf. Exxon Corp., 118 F.3d at 849. Although we agree with the PELRB's determination that the arbitrator's decision violated strong public policy by ordering reinstatement and would constitute an ULP if enforced, that same policy preventing reinstatement does not automatically require termination. We do not hold that termination is inappropriate; we hold only that automatic termination is inappropriate simply because the arbitrator's award violates strong public policy. Our review of the record does not reveal that the PELRB considered the appropriate remedy in light of the CBA. The CBA is not before us, and the parties do not argue whether the remedy should be determined by the arbitrator or the PELRB. Thus, we express no opinion on the appropriate remedy, or who should determine it. Accordingly, we remand for a determination of an appropriate remedy. See RSA 273-A.-6 (Supp. 1998).\\nWe have reviewed the record with respect to the union's remaining arguments and find them to be without merit and warranting no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).\\nAffirmed and remanded.\\nAll concurred.\"}"

nh/11250227.json

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+"{\"id\": \"11250227\", \"name\": \"State v. Hurd\", \"name_abbreviation\": \"State v. Hurd\", \"decision_date\": \"1871-06\", \"docket_number\": \"\", \"first_page\": 176, \"last_page\": \"177\", \"citations\": \"51 N.H. 176\", \"volume\": \"51\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:40:38.637244+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Hurd.\", \"head_matter\": \"State v. Hurd.\\nUnder Gen. Stats., ch. 262, sec. 1, which imposes a penalty upon any per- ' son who \\u201c shall wilfully and maliciously burn any dwelling-house,\\u201d an indictment is good which charges the defendant with feloniously, wil-fully, and maliciously burning his own dwelling-house.\\nIkdictment, for wilfully and maliciously burning the dwelling-house of the defendant. Motion in arrest of judgment.\\nWoodward Wellington, for the defendant.\\nColby, solicitor, for the State.\", \"word_count\": \"534\", \"char_count\": \"3118\", \"text\": \"Doe, J.\\nSection 1 of ch. 262, Gen. Stats., provides that \\\" If any person shall wilfully and maliciously burn any dwelling-house,\\\" he shall be punished. The title of the chapter is \\\"Arson and Burning Property.\\\" The index or table of contents placed at the head of the chapter, and repeated in the margin at the side of the several sections, gives \\\"arson, how punished,\\\" as a brief statement or head-note of section 1; and the defendant contends that this index shows that the crime intended in section 1 is arson in its common law'sense, and consequently that the dwelling-house must be the dwelling-house of some other person than the defendant.\\n\\\" Murder,\\\" in chapter 264, is the technical term of the common law, and it carries into the statute- the common law definition of the term. But in section 1 of chapter 262, the word \\\" arson \\\" is not used, nor any equivalent; and the index at the head of the chapter cannot be wholly relied upon as an accurate designation of the subject-matter of legislation, although some aid might perhaps be derived from it in the interpretation of an ambiguous section. The index or heading of section 2 of chapter 261 is \\\" Burglary with intent to commit other crime ; \\\" and the section itself is, \\\" If any person shall, in the nighttime, break and enter any dwelling-house, office, bank, shop, store, or Avareliouse, or any vessel,\\\" &c. \\\"When the term \\\"burglary\\\" is used in the heading of a statute in a sense so much broader than its common law signification, it cannot be presumed, from the mere use of the word \\\" arson \\\" in the heading of the next chapter, that common law arson is intended to be expressed.\\nA man may maliciously beat his own horse,\\u2014State v. Avery, 44 N. H. 392,\\u2014and he may maliciously burn his own dwelling. If he burns it for the purpose of destroying the home and lives of his wife and children, when they happen without his knowledge to be absent, the burning may be malicious: and there may be malice in other cases. The legislature might well have intended to provide for such cases, and to remedy a defect of the common law, which has been cured by statute in England. The omission of the terms \\\" arson\\\" and \\\" of the property of another,\\\" in the body of the statute, may well be taken as an intentional remedy of that defect, making section 1 to include not \\u2022merely common law arson, but something more. In a condensed .enumeration of the contents of the chapter,the word \\\"arson\\\" might well enough be used as an abbreviated expression to answer the practical purpose of conveying a general, though not a complete and precise, idea of the subject-matter of section 1.\\nMotion denied.\"}"

nh/1192857.json

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+"{\"id\": \"1192857\", \"name\": \"John Furbush v. J. Joseph McKittrick\", \"name_abbreviation\": \"Furbush v. McKittrick\", \"decision_date\": \"2003-04-29\", \"docket_number\": \"No. 2002-188\", \"first_page\": 426, \"last_page\": \"433\", \"citations\": \"149 N.H. 426\", \"volume\": \"149\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:29:43.110587+00:00\", \"provenance\": \"CAP\", \"judges\": \"Broderick, Nadeau and Duggan, JJ., concurred.\", \"parties\": \"John Furbush v. J. Joseph McKittrick\", \"head_matter\": \"Strafford\\nNo. 2002-188\\nJohn Furbush v. J. Joseph McKittrick\\nArgued: March 12, 2003\\nOpinion Issued: April 29, 2003\\nLaw Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H. Johnson on the brief and orally), and McKean, Mattison & Latid P.A., of Gilford (Edgar D. McKean, III on the brief), for the plaintiff.\\nNelson, Kinder, Mosseau & Saturley, P.C., of Manchester (William\\\\ C. Saturley and Catherine A Blanchard on the brief, and John Kissinger orally), for the defendant.\", \"word_count\": \"2566\", \"char_count\": \"15894\", \"text\": \"Dalianis, J.\\nThe plaintiff, John Furbush, appeals following a jury verdict in favor of the defendant, J. Joseph McKittrick. On appeal, the plaintiff argues that the Superior Court (Mohl, J.) erred by granting the defendant's motion for summary judgment on count IV of his malpractice claim and denying the plaintiff's motion for summary judgment on count III. The defendant cross-appeals, arguing that the trial court erroneously excluded certain evidence during trial. Because we affirm, we need not reach the merits of the defendant's appeal.\\nOn December 15, 1989, the plaintiff, a New Hampshire resident, was injured while working as a welder for National Engineering Services at a job site in Connecticut. He began collecting workers' compensation benefits under the laws of New Hampshire, and was represented by Attorney John Lyons with regard to those benefits. Lyons did not represent the plaintiff regarding any possible third-party claims, but recommended that the plaintiff consult Connecticut counsel about such a claim and provided the name of a Connecticut law firm. The plaintiff contacted the firm in January 1990 and was sent a fee agreement but did not pursue the matter with the firm any further. Lyons withdrew from representing the plaintiff.\\nIn June 1990, the plaintiff hired the defendant to represent him. The parties dispute the scope of the defendant's representation. According to the defendant, his representation of the plaintiff initially involved only the workers' compensation claim. The defendant claims that the first time the plaintiff inquired about a possible third-party claim was in or around November 1992. However, according to the plaintiff, he hired the defendant to represent him with regard to all claims associated with his injury, and asked the defendant on many occasions about the possibility of pursuing a third-party claim in Connecticut.\\nOn November 17,1992, the defendant sent the plaintiff a letter in which he explained that the Connecticut statute of limitations for negligence claims was two years, and stated:\\nMost claims against the owner of a site upon which a Workers'] Compensation injury occurred are simple negligence claims. In this case, such a claim would be barred, as it was not brought before January 15, 1991. In order to pursue a claim for a deliberate tort, or a product liability tort, we must have specific information regarding the job site and/or the actions of the owner of the site itself.\\n. [I]f you have any additional information, such as I have outlined above, it is critical that you get it to me within the next week or ten (10) days in order that we may have time to draft the appropriate documents and get them served upon a third party. However, if you cannot handle this matter at this time, you will still be fully protected under your Worker[s'] Compensation claim.\\nThe defendant continued to represent the plaintiff until April 1996, soon after the plaintiff settled his workers' compensation case that was pending before the New Hampshire Department of Labor. Thereafter, the plaintiff consulted another attorney regarding his Social Security disability benefits. In October 1996, this attorney alerted the plaintiff to possible malpractice committed by the defendant.\\nIn February 1998, the plaintiff brought a legal malpractice claim consisting of five counts, three of which were dismissed and are not at issue here. In count IV, the plaintiff alleged that the defendant was negligent in failing to advise the plaintiff to file a third-party claim prior to the expiration of the Connecticut statute of limitations. In count III, the plaintiff alleged that the defendant negligently failed to conduct a choice of forum analysis to determine which State's law, New Hampshire or Connecticut, would provide him more workers' compensation benefits.\\nThe defendant filed a motion for summary judgment on count IV, arguing that the New Hampshire statute of limitations barred the claim because it was not filed within three years of the alleged malpractice. The defendant did not contest the timeliness of count III of the plaintiffs claim. The plaintiff filed a motion for summary judgment on count III, arguing that the trial court should rule, as a matter of law, that the defendant's conduct constituted malpractice. The trial court granted the defendant's motion to dismiss count IV and denied the plaintiffs motion for summary judgment on count III. The jury subsequently returned a verdict in favor of the defendant on count III. This appeal followed.\\nOn appeal, the plaintiff argues that the trial court erred in both summary judgment rulings. In reviewing a trial court's summary judgment ruling, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Sintros v. Hamon, 148 N.H. 478, 480 (2002). \\\"Summary judgment may be granted only where no genuine issue of material fact is present, and the moving party is entitled to judgment as a matter of law.\\\" Winnacunnet Coop. Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 524 (2002) (quotation omitted). We review the trial court's application of the law to the facts de novo. Coyle v. Battles, 147 N.H. 98, 100 (2001).\\nWe initially address the plaintiffs arguments regarding the trial court's grant of summary judgment in favor of the defendant on count IV. The plaintiff first argues that the trial court erred by granting the defendant's motion without holding an evidentiary hearing. This argument is without merit. According to RSA 491:8-a, a motion for summary judgment may be rendered upon \\\"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed.\\\" RSA 491:8-a, III (1997). The trial court is not required by statute to hold a hearing prior to ruling on a summary judgment motion. See id. Rather, under Superior Court Rule 58, the party seeking a hearing on an objection to a motion must request one within ten days after the filing of the motion. See SUPER. Ct. R. 58. The trial court then has discretion to grant or deny the request. State v. Roy, 138 N.H. 97, 98 (1993). If the opposing party fails to request a hearing, however, the court may act on the motion on the basis of the pleadings and record before it. SUPER. CT. R. 58. Here, the plaintiff never requested that the trial court hold a hearing, and thus the court was free to act on the defendant's motion.\\nThe plaintiff next argues that the trial court erred by granting the defendant's motion for summary judgment because an exception applied to toll the statute of limitations until at least April 1996. The statute of limitations for a malpractice action is three years. See RSA 508:4 (1997). It is undisputed that the plaintiff's malpractice suit was filed more than three years after the plaintiff suffered the loss of his potential third-party claim. Thus, the plaintiff has the burden of proving that an exception applies to toll the statute of limitations such that his malpractice claim would be timely filed. See Glines v. Bruk, 140 N.H. 180, 181 (1995); see also Evans v. Rudy-Luther Toyota, Inc., 39 F. Supp. 2d 1177, 1184 (D. Minn. 1999).\\nThe first exception raised by the plaintiff is the discovery rule. The discovery rule, now codified in RSA 508:4, I, see Conrad v. Hazen, 140 N.H. 249, 251 (1995), states that\\nwhen the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.\\nRSA 508:4,1.\\nThe plaintiff argues that he could not have discovered that he suffered any financial injury from the loss of his potential third-party claim until 1996 when his new attorney advised him of the defendant's potential malpractice. The trial court held, however, that the discovery rule did not toll the statute of limitations until 1996 because the defendant's November 1992 letter \\\"specifically informed the plaintiff\\\" of the loss of his potential third-party negligence claim and the defendant's potential malpractice. We agree. In his letter, the defendant explained the Connecticut statute of limitations for negligence claims, and stated, \\\"In this case, such a claim would be barred, as it was not brought before January 15, 1991.\\\" The letter informs the plaintiff of both the injury \\u2014 the loss of his third-party claim \\u2014 and the causal relationship between the injury and the failure to file the claim in a timely manner.\\nWe are not persuaded by the plaintiffs argument that the defendant's letter falsely indicated that he suffered no harm from the inability to file the third-party claim. The plaintiff points to the portion of the letter where the defendant states that the plaintiff \\\"will still be fully protected under your Workers'] Compensation claim,\\\" and argues that he reasonably thought that he would be fully compensated as to all claims under the workers' compensation claim because he did not appreciate the difference between the workers' compensation and third-party claims. The portion of the letter upon which the plaintiff relies does not state that the plaintiff was not harmed by the loss of his third-party claim, but rather simply explains that the inability to file the third-party claim in no way endangered his workers' compensation claim.\\nMoreover, the record shows that the plaintiff was aware of the difference between a workers' compensation and third-party claim. While his workers' compensation claim was pending, the plaintiff contacted Connecticut counsel in order to pursue a third-party claim and, on at least one occasion, asked the defendant about the potential for filing such a claim. The plaintiff's actions demonstrate that he understood the possible benefit of filing a third-party claim in addition to his workers' compensation claim, and, therefore, could appreciate that he suffered some harm from the inability to do so. While the plaintiff may not have understood the full extent of the harm that would result from the loss of his potential third-party claim, the discovery rule is not intended to toll the statute of limitations until the full extent of the plaintiff's injury has manifested itself. See Rowe v. John Deere, 130 N.H. 18, 23 (1987). Rather, that the plaintiff could reasonably discern that he suffered some harm caused by the defendant's conduct is sufficient to render the discovery rule inapplicable. See id.\\nFor similar reasons, the plaintiffs argument regarding his second offered exception, the fraudulent concealment rule, also fails. \\\"[T]he fraudulent concealment rule states that when facts essential to the cause of action are fraudulently concealed, the statute of limitations is tolled until the plaintiff has discovered such facts or could have done so in the exercise of reasonable diligence.\\\" Bricker v. Putnam, 128 N.H. 162, 165 (1986). Again the plaintiff points to the defendant's November 1992 letter and argues that the defendant concealed the harm to the plaintiff by telling him that he was \\\"fully protected\\\" under his workers' compensation claim.\\nThe defendant did not conceal any essential facts in his letter. The defendant explained that the third-party claim could no longer be filed because it was barred by the Connecticut statute of limitations. As we stated above, this was sufficient to put the plaintiff on notice that the defendant may have committed malpractice. The language that the plaintiff cites did not conceal the injury, but merely reflected the fact that the plaintiffs workers' compensation claim was not in jeopardy.\\nThe plaintiff finally raises the \\\"continuing representation\\\" rule, which he argues should be applied to toll the statute of limitations until the defendant ceased representing him in April 1996. See Coyle, 147 N.H. at 101. We need not address this argument, however, because it was not raised before the trial court and thus was not preserved for appeal. See Panciocco v. Lawyers Title Ins. Corp., 147 N.H. 610, 616 (2002).\\nFinally, we address the plaintiffs argument regarding the trial court's denial of his motion for summary judgment on count III, which concerned the defendant's failure to perform a choice of forum analysis. The trial court ruled that summary judgment was inappropriate because genuine issues of material fact were present. See Winnacunnet Coop. Sch. Dist, 148 N.H. at 524. The plaintiff argues that in any personal injury action, an attorney has the duty to perform a choice of forum analysis. Thus, the plaintiff argues that the defendant's malpractice in failing to perform the analysis was so \\\"gross and obvious\\\" that the defendant was negligent as a matter of law, rendering summary judgment appropriate.\\nIn a legal malpractice case, a plaintiff must prove: (1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach. Wong v. Ekberg, 148 N.H. 369, 373 (2002). Though the existence of the defendant's duty to the plaintiff is a question of law, see Sisson v. Jankowski, 148 N.H. 503, 505 (2002), it is for the fact-finder to determine whether, under the circumstances of the case, the defendant breached his duty to exercise reasonable professional care and that the defendant's breach caused the plaintiffs harm, see Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010 (1985); cf. Wong, 148 N.H. at 373-74 (expert testimony generally required to assist the jury in determining whether the defendant breached the standard of care). While summary judgment may be appropriate if \\\"the evidence [of negligence] is so conclusive that reasonable persons can reach but one conclusion \\\" 5 R. Mallen & J. Smith, Legal Malpractice \\u00a7 33.11, at 90 (5th ed. 2000), such instances \\\"are exceedingly rare, and the present case does not represent one of them,\\\" J. Edmund & Co. v. Rosen, 591 N.E.2d 179, 181 (Mass. 1992) (quotation omitted).\\nIn opposition to the plaintiffs motion, the defendant offered the deposition testimony of an expert, Attorney Edward Stewart, Jr., who stated that the defendant's conduct did not fall below the standard of reasonable professional care. He testified that under the scope of the defendant's employment and the circumstances of the case, the defendant's pursuit of only a New Hampshire workers' compensation claim was within the bounds of appropriate professional conduct. He opined that \\\"an ordinary attorney in New Hampshire exercising due care would just continue to pursue the claim in New Hampshire where it was initially filed.\\\" The plaintiff concedes that this testimony disputes his expert's opinion on the defendant's alleged breach of his duty. Considering the evidence in the light most favorable to the defendant, see Sintros, 148 N.H. at 480, we conclude that a genuine issue of material fact existed as to the defendant's alleged breach of his duty, and, accordingly, we affirm the trial court's denial of the plaintiffs motion.\\nAffirmed.\\nBroderick, Nadeau and Duggan, JJ., concurred.\"}"

nh/1192933.json

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+"{\"id\": \"1192933\", \"name\": \"Preferred National Insurance Company v. Docusearch, Inc. & a.\", \"name_abbreviation\": \"Preferred National Insurance v. Docusearch, Inc.\", \"decision_date\": \"2003-08-19\", \"docket_number\": \"No. 2002-729\", \"first_page\": 759, \"last_page\": \"767\", \"citations\": \"149 N.H. 759\", \"volume\": \"149\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:29:43.110587+00:00\", \"provenance\": \"CAP\", \"judges\": \"Brock, C.J., and Broderick, Nadeau and Duggan, JJ., concurred.\", \"parties\": \"Preferred National Insurance Company v. Docusearch, Inc. & a.\", \"head_matter\": \"Hillsborough-southern judicial district\\nNo. 2002-729\\nPreferred National Insurance Company v. Docusearch, Inc. & a.\\nArgued: June 12, 2003\\nOpinion Issued: August 19, 2003\\nDevine, Millimet & Branch, P.A., of Manchester (Andrew D. Dunn and James R. Fox on the brief, and Mr. Fox orally), for the petitioner.\\nGottesman & Hollis, P.A., of Nashua (David M. Gottesman and Anna Barbara Hantz on the brief, and Mr. Gottesman orally), for the respondents.\", \"word_count\": \"2924\", \"char_count\": \"18338\", \"text\": \"Dalianis, J.\\nIn this declaratory judgment action, the respondents, Docusearch, Inc. (Docusearch) and Helen Remsburg, appeal an order of the Superior Court (Hampsey, J.) granting summary judgment in favor of the petitioner, Preferred National Insurance Company (Preferred). We affirm in part, reverse in part and remand.\\nPreferred sought a declaratory judgment that it is under no obligation to defend or indemnify Docusearch in a lawsuit filed by Remsburg, Administratrix of the Estate of Amy Lynn Boyer, in the United States District Court for the District of New Hampshire, Helen Remsburg, Administratrix v. Docusearch, Inc., No. C-00-211-B, because the damages alleged by Remsburg arose out of an act excluded by the insurance policy. The claims made by Remsburg and the facts underlying the complaint are detailed in Remsburg v. Docusearch, 149 N.H. 148,151-53 (2003), and need only briefly be summarized here. Liam Youens contacted Docusearch and requested the date of birth, social security number and place of employment for Amy Lynn Boyer. Docusearch failed to provide Boyer's date of birth, but provided Youens with her social security number and place of employment. On October 15, 1999, Youens drove to Boyer's workplace and fatally shot her as she left work. Youens then shot and killed himself.\\nThe disputed insurance policy issued by Preferred to Docusearch provides commercial general liability coverage for bodily injury and property damage (Coverage A), as well as personal and advertising injury damage (Coverage B). Coverage A provides that the insurer will pay \\\"those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies.\\\" \\\"Bodily injury\\\" is defined as \\\"bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.\\\" Coverage B provides that the insurer will pay \\\"those sums that the insured becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies.\\\" \\\"Personal and advertising injury\\\" means \\\"injury, including consequential 'bodily injury', arising out of one or more of the following offenses: . e. Oral or written publication of material that violates a person's right to privacy.\\\"\\nThe policy also includes a \\\"Detective or Patrol Agency Endorsement\\\" (detective endorsement), which modifies the commercial general liability coverage and provides \\\"coverage for sums which you become legally obligated to pay because of any Negligent Act, Error or Omission committed during the Policy Period in the conduct of . operations,\\\" subject to \\\"those Exclusions already found in the Coverage Form.\\\"\\nThe parties' dispute centers primarily upon the interpretation of an \\\"Assault & Battery Endorsement\\\" attached to the policy, which provides:\\n[T]he policy to which this endorsement is attached, is amended and modified as follows:\\nActions and proceedings to recover damages for bodily injuries or property damage arising from the following are excluded from coverage, and the Company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages:\\n1. Assault and Battery or any act or omission in connection with the prevention or suppression of such acts;\\nRegardless of degree of culpability or intent and without regard to:\\nA. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents, or servants; or by any person lawfully or otherwise on, at or near premises owned or occupied by the insured; or by any other person____\\nPreferred filed a motion for summary judgment arguing that the assault and battery endorsement excluded coverage because the claimed damages arose out of Youens' assault and battery. The trial court granted the motion, finding that the respondents \\\"failed to rebut, with evidence sufficient to raise a genuine issue of material fact, Preferred's showing that the exclusive source of the underlying plaintiff's injuries (and therefore [the] claims) was the murder of Amy Boyer and its attendant excluded acts.\\\" On appeal, the respondents argue that the trial court erred in: (1) concluding that the assault and battery endorsement excluded coverage' for bodily injury claims where the harm alleged was caused by the insured's negligence in disclosing information; and (2) applying the assault and battery endorsement to exclude claims brought under either Coverage B or the detective endorsement.\\nIn its brief, Preferred argues that the trial court erred by applying New Hampshire law, rather than Florida law, to interpret the policy. Preferred has not cross-appealed the trial court's ruling that New Hampshire law applies, however, and thus has waived its choice of law argument. See Federal Bake Shop v. Farmington Cas. Co., 144 N.H. 40, 43 (1999). Accordingly, we address the respondents' arguments under New Hampshire law.\\nIn reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. See Del Norte, Inc. v. Provencher, 142 N.H. 535, 537 (1997). \\\"If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.\\\" Id. (quotation and brackets omitted). Pursuant to RSA 491:22-a (1997), \\\"the burden of proving lack of insurance coverage is on the insurer.\\\" Maville v. Peerless Ins. Co., 141 N.H. 317, 320 (1996) (quotation omitted).\\nThe interpretation of the language of an insurance policy is a question of law for this court to decide. High Country Assocs. v. N.H. Ins. Co., 139 N.H. 39, 41 (1994). We take the plain and ordinary meaning of the policy's words in context, and we construe the terms of the policy as would a reasonable person in the position of the insured based upon more than a casual reading of the policy as a whole. Id. An insurer's obligation to defend its insured is determined by whether the cause of action against the insured alleges sufficient facts in the pleadings to bring it within the express terms of the policy. Martin v. Me. Mut. Fire Ins. Co., 145 N.H. 498, 500 (2000). An insurance company is free to limit its liability through clear and unambiguous policy language. Ross v. Home Ins. Co., 146 N.H. 468, 471 (2001).\\nThe respondents argue that Preferred has a duty to defend and indemnify Docusearch against Remsburg's negligence claim. The claim alleges that Docusearch negligently disseminated information by providing Boyer's social security number and place of employment to Youens, who allegedly used the information in connection with his murder of Boyer. The claim alleges \\\"damages including but not limited to the fear, anxiety and mental and physical pain suffered by Amy Lynn Boyer as she lay dying, the reasonable expenses occasioned to the estate by her death, the loss of the probable duration of her life but for her death.\\\"\\nThe respondents argue that the assault and battery endorsement does not apply to the negligence claim because the damages alleged arose from the insured's negligence, not from an assault and battery. Preferred counters that the exclusion applies because the negligence claim alleges damages comprised solely of bodily injuries arising from Youens' assault and battery.\\nWe disagree with the respondents' contention that Preferred's obligations under the policy are determined solely by the actions of the insured. Damages are an essential part of a negligence claim. Ross, 146 N.H. at 472. Thus, where the damages arise entirely out of an act that would not be covered under an insurance policy, the negligence claim is not one that would be covered under the policy. Id. We applied this principle in Ross where we held that the insured was not covered by his insurance policy for claims of negligent hiring and supervision because the underlying damages arose out of a rape which was not covered under the policy. Id. Other courts have applied a similar rule in interpreting exclusionary clauses similar to the one at issue here. See, e.g., Stiglich v. Tracks, D.C., Inc., 721 F. Supp. 1386, 1388 (D.C. 1989) (no coverage for negligence claim because proof of excluded act necessary to make the claim); Perrine Food Retailers v. Odyssey LTD., 721 So. 2d 402, 404 (Fla. Dist. Ct. App. 1998) (no coverage for negligence claim where exclusion precluded coverage for all claims arising out of an assault and battery); Ross v. City of Minneapolis, 408 N.W.2d 910, 913-14 (Minn. Ct. App. 1987) (negligence claim causally connected to assault and battery unambiguously excluded by assault and battery exclusion); Hunt v. Capitol Indem. Corp., 26 S.W.3d 341, 343-44 (Mo. Ct. App. 2000) (exclusionary language specifically stating that coverage does not apply to bodily injuries arising out of assault or battery includes negligence actions that arise out of the excluded act).\\nThe respondents argue that our reasoning in Ross does not apply to the present case because the policy at issue in Ross was a professional liability policy rather than a general liability policy. While we agree with the respondents' contention that different policy types serve different purposes, we do not share the respondents' interpretation of Ross. Our analysis in Ross concerned whether the policy covered the act which caused the damages, not whether the policy was of a particular type. See Ross, 146 N.H. at 472.\\nMoreover, in Ross, we cited Winnacunnet v. National Union, 84 F.3d 32, 38 (1st Cir. 1996), which held that an insurer had no duty to provide coverage under an errors and omissions policy because the complaint against the insured alleged only damages that arose out of an uncovered act. In Winnacunnet, the complaint against the insured sought damages for the insured's negligent hiring and supervision of an employee. Id. at 33-34. The plaintiffs claimed that the insured's negligence resulted in \\\"inappropriate relationships and dangerous effects,\\\" and alleged a variety of damages. Id. at 34. The court found, however, that all the claimed damages were the result of the murder of the employee's husband. Id. at 37. Because the policy at issue excluded coverage for \\\"any claim arising out of . assault or battery\\\" as well as \\\"any claim arising out of bodily injury to, or . death of any person,\\\" id. at 34, the court concluded that the complaint alleged damages arising entirely out of an act \\u2014 the murder \\u2014 that was excluded under the policy and denied coverage. Id. at 37.\\nSimilarly, here, the negligence claim alleges damages arising entirely from Youens' assault and battery against Boyer. The respondents have failed to allege any damage from the alleged negligence other than Boyer's bodily injuries inflicted by Youens. Remsburg could not prevail on the negligence claim -without proving damages from Boyer's murder. Cf. Ross, 146 N.H. at 472; Winnacunnet, 84 F.3d at 36. Thus, because the damages arose out of the assault and battery which is excluded by the assault and battery endorsement, the respondents' negligence claim is excluded as well. See Ross, 146 N.H. at 472.\\nWe find support for our conclusion in the broad language of the policy itself. The assault and battery endorsement expressly excludes claims for damages arising from assault and battery by the insured or any other person. Courts interpreting comparably broad exclusionary clauses have typically denied coverage in cases similar to the one which we face here. Compare Liquor Liab. JUA v. Heritage Ins. Co., 644 N.E.2d 964, 967 n.4 (Mass. 1995) (citing cases denying coverage under similarly worded exclusionary clauses), with Bd. of Educ. v. Nat. Union Fire Ins., 709 A.2d 910, 914 (Pa. Super. Ct. 1998) (finding coverage where exclusions \\\"do not by their terms apply to the conduct of a non-insured\\\").\\nThe respondents argue that the assault and battery endorsement, if read to exclude coverage for the insured's negligence in this case, removes coverage for the principal activity of the insured's operations for which the premium was paid. We disagree. Excluding claims for damages arising from assault and battery does not entirely remove coverage for the risks against which Docusearch insured itself. Rather, the exclusion merely singles out a particular risk. Moreover, while we agree with the respondents that the policy's detective endorsement is intended to insure Docusearch against liability arising out of mistakes inherent in the practice of its profession, see Watkins Glen Cent. v. Nat. Union Fire, 732 N.Y.S.2d 70, 72 (App. Div. 2001), we disagree that Preferred is not permitted to limit this coverage to certain types of risks with clear and unambiguous language, see Ross, 146 N.H. at 471. Given the variety of harms risked by the dissemination of information, we cannot conclude, as the respondents urge, that excluding a certain type of bodily injury from coverage \\\"would wholly vitiate coverage and frustrate the reasonable expectations of the insured.\\\" Watkins Glen Cent., 732 N.Y.S.2d at 71.\\nNor do we agree that section 493.6110, Florida Statutes (2002), which requires a private investigator to carry comprehensive general liability for \\\"death, bodily injury, property damage, and personal injury\\\" to be licensed in Florida, necessitates a finding of coverage here. Section 493.6110 does not require that an insurer provide a particular type of coverage, but rather places a duty upon private investigators to make sure they have obtained comprehensive liability coverage consistent with the statute in order to be licensed. See Southern Adj. v. American Bankers Ins., 723 So. 2d 285, 286 (Fla. Dist. Ct. App. 1998). Regardless of whether the coverage obtained by Docusearch complies with the statute, nothing in the statute required Preferred to provide coverage for damages for bodily injuries arising from assault and battery. See id.\\nThe respondents next argue that the assault and battery endorsement applies only to Coverage A, and does not preclude coverage under either the \\\"consequential 'bodily injury'\\\" coverage of Coverage B or the detective endorsement.- They argue that because the assault and battery endorsement refers to \\\"bodily injury and property damage,\\\" but does not refer to \\\"personal and advertising injury,\\\" the exclusion does not apply to Coverage B. They further argue that because the detective endorsement is modified only by the exclusions contained within the coverage form, the assault and battery endorsement does not apply to that coverage. The respondents analogize this case to Silverball Amusement v. Utah Home Fire Ins., 842 F. Supp. 1151 (W.D. Ark. 1994), in which the court stated that \\\"[i]f there is an exclusion in one section but not in another, the court cannot rewrite the contract to place exclusions in both sections.\\\" Id. at 1159. A fair reading of the policy as a whole, however, does not support the respondents' arguments.\\nThe assault and battery endorsement is not attached to a particular section of the policy and is not restricted to a certain type of coverage within the coverage form. Rather, the endorsement states, \\\"the policy to which this endorsement is attached, is amended and modified as follows.\\\" Unlike an exclusion limited to a particular section within the policy, an endorsement attached to a policy must be read together with the entire policy. See 4 E. HOLMES, APPLEMAN ON INSURANCE 2d \\u00a7 20.1, at 153 (1998). The endorsement excludes coverage for any action to recover damages for bodily injuries arising from assault and battery. Thus, the assault and battery endorsement excludes coverage under Coverage B for actions to recover damages for bodily injury in the same way that it does under Coverage A. Likewise, the assault and battery endorsement applies to the detective endorsement. The detective endorsement is modified by the exclusions found in the coverage form, which includes the attached assault and battery endorsement.\\nThe respondents finally argue that Preferred must provide coverage under Coverage B for the invasion of privacy claim and the claim under the Consumer Protection Act, see RSA ch. 358-A (1995 & Supp. 2002). These claims allege other damages in addition to the damages arising from Boyer's bodily injuries caused by the assault and battery. The trial court did not specifically address these other damages but instead found that all the damages alleged in Remsburg's complaint were the result of the excluded assault and battery. We agree with the respondents that this was error.\\nAn action for intrusion upon seclusion does not require a claimant to prove any harm beyond the intrusion itself. See RESTATEMENT (SECOND) OF TORTS \\u00a7 652H comment a at 402 (1977) (\\\"[0]ne who suffers an intrusion upon his solitude or seclusion . may recover damages for the deprivation of his seclusion.\\\")- The invasion of privacy counts in the complaint included a claim for damages for the intrusion into Boyer's seclusion itself in addition to the claimed damages for her bodily injuries. Further, the Consumer Protection Act does not require a showing of actual damages for the claimant to be awarded the statutory minimum and attorney's fees. RSA 358-A:10, I (1995); see Carter v. Lachance, 146 N.H. 11, 14 (2001). Thus, while expressing no opinion as to whether Preferred has any obligations in relation to these claims, we reverse the trial court's application of the assault and battery endorsement to the extent that Remsburg has alleged damages unrelated to Boyer's bodily injuries.\\nAccordingly, we remand to the trial court for further proceedings consistent with this opinion.\\nAffirmed in part; reversed in part; and remanded.\\nBrock, C.J., and Broderick, Nadeau and Duggan, JJ., concurred.\"}"

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+"{\"id\": \"12460338\", \"name\": \"William Weaver & a. v. Randall Stewart & a.\", \"name_abbreviation\": \"Weaver v. Stewart\", \"decision_date\": \"2016-10-27\", \"docket_number\": \"No. 2015-0335\", \"first_page\": 420, \"last_page\": \"431\", \"citations\": \"169 N.H. 420\", \"volume\": \"169\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:50:34.200741+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.\", \"parties\": \"William Weaver & a. v. Randall Stewart & a.\", \"head_matter\": \"Rockingham\\nNo. 2015-0335\\nWilliam Weaver & a. v. Randall Stewart & a.\\nArgued: May 3, 2016\\nOpinion Issued: October 27, 2016\\nMcDowell & Osburn, P.A., of Manchester (,Joseph F. McDowell III, Mark Morrissette, and Heather V. Menezes on the brief, and Mr. Morrissette orally), for the plaintiffs.\\nCullenCollimore, PLLC, of Nashua (Brian J.S. Cullen and Shelagh C.N. Michaud on the brief, and Mr. Cullen orally), for defendants Town of Pelham, Derek Gioia, and Joseph Roark.\\nBoyle, Shaughnessy & Campo, P.C., of Manchester (Michael P. Johnson and Quinn E. Kelley on the brief, and Mr. Johnson orally), for defendant Woody\\u2019s Auto Repair & Towing, Inc.\", \"word_count\": \"4301\", \"char_count\": \"26755\", \"text\": \"Bassett, J.\\nThe plaintiffs, William Weaver, individually and as administrator of the estate of his wife, Marceline Weaver, and James Sousa, appeal decisions of the superior court granting summary judgment in favor of the defendants, the Town of Pelham (Town), Pelham Police Chief Joseph Roark, Pelham Police Officer Derek Gioia (collectively, the Pelham defendants), and Woody's Auto Repair & Towing, Inc. (Woody's).\\nThis case arises from an automobile accident allegedly caused by Randall Stewart, the owner and driver of a vehicle that collided with the plaintiffs. Stewart is not participating in this appeal. The Trial Court (McHugh, J.) concluded that, although the Pelham defendants are not immune from suit under RSA chapter 507-B (2010) or under the common law, they are entitled to summary judgment because of the lack of evidence that they proximately caused the motor vehicle collision that resulted in the plaintiffs' injuries. We affirm the court's finding that there was insufficient evidence that the Pelham defendants proximately caused the accident. Accordingly, we need not address the Pelham defendants' cross-appeal on immunity.\\nThe Trial Court (Anderson, J.) granted summary judgment in favor of Woody's, concluding that: (1) because Stewart's vehicle had been towed the night before the collision pursuant to RSA 262:32 (2014), rather than impounded pursuant to RSA 262:40 (2014), Woody's was not required to obtain authorization from the police or a court prior to releasing the vehicle the next day to its owner; (2) Woody's cannot be liable for negligent entrustment of a motor vehicle because of the lack of evidence that a Woody's employee knew, or should have known, that the owner was impaired when he picked up his vehicle; and (3) given the absence of evidence demonstrating that Woody's breached a duty owed to the plaintiffs, it is not liable for negligence. We affirm.\\nI. Background\\nThe relevant facts follow. At approximately 11:30 p.m. on June 25, 2010, Gioia responded to a call reporting that a person was driving a vehicle erratically. He pulled the vehicle over and identified the driver as Stewart. Gioia noticed an odor of alcohol, observed that Stewart had glassy eyes, and administered field sobriety tests that Stewart failed. Gioia arrested Stewart for driving under the influence and called Woody's, requesting that Woody's tow Stewart's vehicle. At the scene, Gioia conducted an inventory search of the vehicle, noting that the vehicle contained \\\"Cds,\\\" \\\"[mjiscellaneous pieces of clothing,\\\" and \\\"1 can of beer.\\\"\\nGioia took Stewart to the Pelham police station for booking. Stewart refused to take a breathalyzer test. Gioia then confiscated Stewart's license and provided him with a copy of the Administrative License Suspension form that would serve as his temporary license, see RSA 265-A:30 (2014). Gioia charged Stewart with, among other things, driving while under the influence. At approximately 1:30 a.m., Gioia transported Stewart to a home in Windham. According to Gioia, at that time, Stewart appeared to be \\\"somewhat impaired.\\\"\\nAt 6:49 a.m., and again at 7:23 a.m., Stewart telephoned the Pelham Police Department and spoke briefly with Gioia. In response to Stewart's questions, Gioia told him that his vehicle was at Woody's and that he could retrieve it after Woody's opened for business at 9:00 a.m. In his deposition Gioia testified that, during the 6:49 a.m. telephone call, Stewart \\\"sounded better\\\" than he did the night before. Gioia testified that he understood everything Stewart said, and it \\\"sounded like\\\" Stewart understood everything that Gioia said to him. Gioia also testified that Stewart sounded the same during both of the early morning telephone calls. According to Gioia, these telephone conversations \\\"sounded like a normal course of conversation [that he] would have with any citizen that called in.\\\"\\nAt some point after 8:30 a.m. and before 10:00 a.m. Stewart arrived at Woody's, paid the towing and storage charges, and retrieved his vehicle. Brendan Wood, who owned Woody's, testified in his deposition that Stewart did not appear to be impaired when he picked up the vehicle. At approximately 11:19 a.m., Stewart telephoned the police station and left an incoherent voicemail message for Gioia.\\nAt approximately noon, Stewart drove his vehicle into oncoming traffic in Hampstead, striking the plaintiffs who were riding on motorcycles. The plaintiffs were severely injured, and Weaver's wife died. According to police officers at the accident scene, Stewart exhibited signs of impairment, and failed a field sobriety test. Following the collision, Hampstead police conducted a search of Stewart's vehicle and found a Xanax prescription \\\"tag\\\" in the \\\"back seat area.\\\" According to Edward J. Barbieri, Ph.D., a forensic toxicologist retained by Stewart, multiple drugs, including Xanax, were detected in blood samples taken from Stewart after the accident.\\nIn September 2012, the plaintiffs sued the Pelham defendants and Woody's. In their action against the Pelham defendants, the plaintiffs asserted several negligence claims, including negligent entrustment of a motor vehicle. In February 2014, after the parties had an opportunity to conduct discovery, the Pelham defendants moved for summary judgment arguing that: (1) they were immune from liability under RSA chapter 507-B because the plaintiffs' claims did not arise out of the Pelham defendants' \\\"ownership, occupation, maintenance or operation\\\" of motor vehicles or premises; (2) they were entitled to official immunity under the common law; and (3) the plaintiffs offered no evidence that any act or omission by the Pelham defendants proximately caused the accident. (Quotation omitted.)\\nThe plaintiffs objected, asserting that the Pelham defendants mischaracterized their negligence claims \\\"as solely a failure to hold Mr. Stewart in custody after his . . . June 25, 2010 arrest in an effort to create immunity where none exists\\\" and that, rather, \\\"[t]his case is about the negligent entrustment of a motor-vehicle [sic] seized and controlled by the Pelham PD to an intoxicated Mr. Stewart on the morning of June 26, 2010.\\\" The plaintiffs argued that RSA 507-B:2 allows negligent entrustment actions, and that the Pelham defendants were not entitled to either statutory or common law immunity.\\nThe trial court concluded that, because the plaintiffs chose to respond to the motion by arguing in support of only the negligent entrustment claim, the remaining claims against the Pelham defendants \\u2014 for failing to detain Stewart and the claim against the police chief for improperly training Gioia \\u2014 should be dismissed. The plaintiffs do not challenge the trial court's decision to dismiss the other claims against the Pelham defendants. We limit our analysis on appeal accordingly.\\nThe trial court rejected the Pelham defendants' argument that they were entitled to immunity under RSA chapter 507-B or to official immunity under the common law. Nonetheless, the court concluded that the Pelham defendants were entitled to summary judgment because of the lack of evidence that they proximately caused the motor vehicle accident that resulted in the plaintiffs' injuries. The plaintiffs unsuccessfully sought reconsideration.\\nIn regard to the suit against Woody's, the plaintiffs asserted negligence claims and that Woody's violated RSA 262:40. Woody's moved for summary judgment, arguing that: (1) because Stewart's vehicle was towed rather than impounded under RSA 262:40, Woody's was not required to obtain authorization from the police or a court prior to releasing the vehicle; (2) given the undisputed material facts, it could not be found liable under the theory of negligent entrustment; and (3) Woody's owed no duty of care to the plaintiffs that would support a theory of negligence. The trial court granted the motion.\\nThe court found that Woody's did not violate RSA 262:40, concluding that the undisputed facts established that the vehicle was towed pursuant to RSA 262:32, rather than impounded pursuant to RSA 262:40. The trial court also rejected the plaintiffs' argument that RSA 262:40 is a \\\"safety statute\\\" designed to impose a duty of care upon an entity such as Woody's. (Quotation omitted.)\\nIn addition, the trial court concluded that Woody's was not liable for negligent entrustment because, among other reasons, \\\"no reasonable jury could conclude\\\" that Wood had reason to believe that Stewart was impaired when he picked up his vehicle. As to the plaintiffs' negligence claim, the court concluded that, even assuming that Woody's owed the plaintiffs a duty, there was insufficient evidence establishing that the duty was breached because there was no evidence that Wood knew, or should have known, that Stewart was impaired. The plaintiffs unsuccessfully sought reconsideration of the trial court's rulings. This appeal followed.\\nII. Appellate Arguments\\nA Standard of Review\\n\\\"The mission of the summary judgment procedure is to pierce the pleadings and assess the proof in order to determine if there is a genuine issue of material fact requiring a formal trial of the action.\\\" Community Oil Co. v. Welch, 105 N.H. 320, 321 (1964) (quotation and citation omitted). A party opposing a motion for summary judgment must \\\"set forth specific facts showing a genuine issue for trial,\\\" and not simply assert \\\"general allegations or denials.\\\" Hill-Grant Living Trust v. Kearsarge Lighting Precinct, 159 N.H. 529, 535 (2009) (quotation omitted).\\n\\\"In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.\\\" Pike v. Deutsche Bank Nat'l Trust Co., 168 N.H. 40, 42 (2015). \\\"If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.\\\" Id. \\\"We review the trial court's application of the law to the facts de novo.\\\" Id.\\nB. Pelham Defendants\\nThe plaintiffs argue that the trial court erred when it granted summary judgment in favor of the Pelham defendants on the claim of negligent entrustment. Negligent entrustment is based upon the principle that \\\"the owner of a motor vehicle may be held liable for an injury to a third person resulting from the operation of a vehicle which he has entrusted to one whose incompetency to operate it . is know[n] or should have been known to him.\\\" Chalmers v. Harris Motors, 104 N.H. 111, 114-15 (1962). \\\"[A] defendant could be unfit because of age, bad habits, dangerous propensities, carelessness, recklessness, or habitual driving while under the influence of alcohol.\\\" Burley v. Kenneth Hudson, Inc., 122 N.H. 560, 563 (1982). \\\"To succeed on a negligent entrustment claim, the plaintiff must prove not only the driver's incompetence, but also the owner's knowledge of that incompetence.\\\" Burley, 122 N.H. at 563. Because the Pelham defen dants do not argue otherwise, we assume, without deciding, that negligent entrustment extends to non-owners of a vehicle.\\nThe plaintiffs argue that \\\"material issues of fact were in dispute regarding whether Officer Gioia knew or should have known that Mr. Stewart was intoxicated before the June 26, 2010 accident\\\" and thereby \\\"facilitated Mr. Stewart's driving by failing to contact Woody's and prevent the release of [his vehicle].\\\" (Bolding omitted.) In support of their argument, the plaintiffs rely upon: (1) Stewart's deposition testimony \\\"that he was visibly intoxicated throughout the time of his arrest until the June 26, 2010 accident\\\"; (2) Barbieri's opinion \\\"that, based on the levels of multiple drugs in Mr. Stewart's blood taken on June 26, 2010, Mr. Stewart would have exhibited impairment signs on the morning of June 26, 2010\\\"; and (3) the voicemail message that Stewart left for Gioia on the day of the collision \\\"that evidenced his continued impairment.\\\"\\nWe have reviewed the record and conclude that, taking the evidence in the light most favorable to the plaintiffs, it does not give rise to a genuine issue of material fact on the dispositive issue of whether Gioia knew, or should have known, that, at the time Stewart arrived at Woody's to pick up his vehicle, he was impaired and, therefore, unfit to drive. Although Stewart speculated in his deposition testimony that it \\\"would have been obvious\\\" that he exhibited signs of impairment when he was at Woody's, he repeatedly stated that he had virtually no memory of the time between his arrest on the night of June 25 and the collision.\\nMoreover, Gioia was not at Woody's when Stewart picked up his vehicle; his last interactions with Stewart were the two brief telephone conversations at 6:49 a.m. and 7:23 a.m. on June 26 which, according to Gioia's uncontradicted deposition testimony, were \\\"normal\\\" conversations. In his toxicology report, Barbieri opines that \\\"within a reasonable degree of scientific certainty . . . Stewart was impaired by [Xanax] at the t ime of the motor vehicle accident\\\" and \\\"was showing signs of [central nervous system] impairment during the first [arrest] and his contact with . . . Gioia.\\\" (Emphases added.) But, he does not address Stewart's condition at the specific time at issue \\u2014 when he picked up his vehicle at Woody's.\\nBecause the plaintiffs rely solely upon conjecture as to Stewart's condition when he spoke on the telephone with Gioia at 6:49 a.m. and 7:23 a.m., and when he picked up his vehicle at Woody's, they have failed to set forth specific facts showing a genuine issue for trial. See Hill-Grant Living Trust, 159 N.H. at 535; see also State v. Pessetto, 160 N.H. 813, 818 (2010) (explaining that \\\"speculation . is not evidence\\\").\\nThe plaintiffs further argue that, based upon the voicemail message that Stewart left for Gioia at 11:19 a.m., Gioia \\\"was in a position to know of Mr. Stewart's intoxication on the morning of June 26.\\\" However, because Stewart had retrieved his car from Woody's well before he left his voicemail message, that message is irrelevant to the plaintiffs' negligent entrustment claim. Accordingly, we hold that the Pelham defendants are entitled to judgment as a matter of law, and we affirm the trial court's grant of summary judgment.\\nC. Woody's\\n1. RSA 262:32 and RSA 262A0\\nThe plaintiffs argue that the trial court erred when it granted summary judgment in favor of Woody's on the ground that, because the vehicle was towed pursuant to RSA 262:32 rather than impounded pursuant to RSA 262:40, Woody's was not required to obtain authorization from either the Pelham Police Department or a court before releasing the vehicle to Stewart. The plaintiffs assert that, because Gioia arrested Stewart for driving while under the influence the night before the collision and had his vehicle towed to Woody's, the vehicle was \\\"used in connection with a criminal offense, and a peace officer . . . ordered the removal and impoundment of such vehicle.\\\" RSA 262:40. Thus, the plaintiffs assert that Woody's violated RSA 262:40 when it released Stewart's vehicle to him without prior authorization. In response, Woody's argues that the trial court correctly concluded that Stewart's vehicle was towed pursuant to RSA 262:32 rather than impounded. We agree with Woody's.\\nBecause resolving this issue requires us to engage in statutory interpretation, our review is de novo. See Dichiara v. Sanborn Reg'l Sch. Dist., 165 N.H. 694, 696 (2013). We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, when possible, we ascribe the plain and ordinary meanings to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Strike Four v. Nissan N. Am., 164 N.H. 729, 735 (2013). We interpret statutory provisions in the context of the overall statutory scheme. Id.\\nPursuant to RSA chapter 262, \\\"[a]n authorized official may take a vehicle into his or her custody and may cause the same to be taken away and stored at some suitable place\\\" only as provided in the statute. RSA 262:31 (2014). An \\\"[ajuthorized official\\\" is \\\"any police employee of the division of state police, highway enforcement officer or other authorized employee of the department of safety, or peace officer.\\\" RSA 259:4-a (2014) (quotation omitted).\\nRSA 262:32 sets forth seven circumstances under which an authorized official \\\"may cause the removal and storage of a vehicle.\\\" As pertinent here, an authorized official may do so if he or she \\\"has reasonable grounds to believe\\\" that \\\"[t]he owner or custodian of the vehicle is under arrest or otherwise incapacitated, and the vehicle will be a menace to traffic if permitted to remain.\\\" RSA 262:32, VI. If a vehicle is removed pursuant to RSA 262:32, \\\"all reasonable charges incurred as a result of such removal and storage shall be a lien against the vehicle which shall be paid by the owner . . . claiming such vehicle,\\\" RSA 262:33, I (2014), and \\\"the owner . . . shall be entitled to recover said vehicle and release of the above lien by payment of all reasonable towing and storage charges,\\\" RSA 262:33, II (2014).\\nBy contrast, RSA 262:40 provides that:\\nWhenever a vehicle is reasonably believed to have been used in connection with a criminal offense, and a peace officer has ordered the removal and impoundment of such vehicle, the custodian of said vehicle shall release it upon authorization of the removing agency or a court of competent jurisdiction.\\nViewing this statutory scheme as a whole, we conclude that the plain language in RSA 262:32, VI authorizes police officers to remove a vehicle after the owner is arrested if \\\"the vehicle will be a menace to traffic,\\\" whereas the language in RSA 262:40 is reasonably interpreted to authorize police officers to remove and impound a vehicle because it may be evidence of a crime. Because under RSA 262:82, VI, a vehicle is removed simply to eliminate the hazard it otherwise poses to traffic, the owner of the vehicle may recover it upon payment of the towing and storage fees. However, because a vehicle is removed under RSA 262:40 in order to retain it for evidentiary purposes, the vehicle may not be released until authorized by law enforcement or a court.\\nAs Gioia testified during his deposition, he arrested Stewart and then asked Woody's to tow Stewart's vehicle because it was a \\\"nuisance\\\" on the road, and so that \\\"vehicle traffic could flow smoothly on that roadway.\\\" He also testified that there was no reason to preserve the vehicle for any evidentiary purpose and that the police had \\\"no use\\\" for the vehicle after they left the scene of the arrest. The Pelham police chief similarly testified that Stewart's vehicle was towed to Woody's because Stewart had been arrested, the vehicle was \\\"on a roadway in a dangerous place,\\\" and, therefore, to avoid an accident, the vehicle needed to be removed from the road. There is no evidence that any law enforcement officer instructed Woody's to hold the vehicle until the police or a court authorized its release.\\nWe conclude that the undisputed facts establish that Stewart's vehicle was towed pursuant to RSA 262:32. No officer \\\"ordered the removal and impoundment of' Stewart's vehicle. RSA 262:40. The vehicle was not placed in the custody of a law enforcement official or a court, or retained for any evidentiary purpose. Rather, the evidence demonstrates that Gioia \\\"cause[d] the removal and storage\\\" of Stewart's vehicle because he had \\\"reasonable grounds to believe that\\\" Stewart was \\\"under arrest or otherwise incapacitated, and the vehicle w[ould] be a menace to traffic if permitted to remain\\\" in the roadway. RSA 262:32, VI. Because Stewart's vehicle was towed and stored pursuant to RSA 262:32 and not impounded under RSA 262:40, Woody's did not need to obtain authorization from the Pelham Police Department or a court before releasing it to Stewart.\\n2. Negligent Entrustment and Negligence\\nThe plaintiffs also argue that the trial court erred when it granted summary judgment in favor of Woody's on their claim that Woody's was liable for negligent entrustment. The plaintiffs assert that Woody's had \\\"custody and control\\\" over the vehicle and released it to a \\\"visibly intoxicated\\\" Stewart. The plaintiffs contend that a negligent entrustment claim can apply to anyone with control over a vehicle who \\\"knowingly lets an unfit person, such [as] an intoxicated person, . . . operate that vehicle.\\\" Woody's counters that \\\"New Hampshire has not extended a negligent entrustment action against any party that is not the owner of a vehicle.\\\" It also argues that there is no evidence that, at the time that Stewart picked up his vehicle, a Woody's employee knew, or should have known, that Stewart was impaired. Because we agree that there was no evidence that Wood, the only Woody's employee to interact with Stewart, knew, or should have known, of Stewart's alleged impairment when he picked up his vehicle, we need not decide whether a negligent entrustment claim extends to non-owners of a vehicle.\\nIn order to survive a motion for summary judgment, \\\"a plaintiff must provide either evidence of the driver's appearance or conduct at the time of the entrustment, or evidence that the owner was otherwise aware of the driver's incompetence at that time.\\\" Weber v. Budget Truck Rental, LLC, 254 P.3d 196, 199 (Wash. Ct. App. 2011). \\\"Because the standard of liability revolves around appearance, any direct or circumstantial evidence must address actual rather than assumed appearance.\\\" Id. (quotation and brackets omitted).\\nNeither Stewart's deposition testimony nor Barbieri's toxicology report gives rise to a genuine issue of material fact as to whether Wood knew, or should have known, that Stewart was unfit to operate his vehicle when he retrieved it from Woody's between 8:30 a.m. and 10:00 a.m. Although Stewart speculated in his deposition testimony that it \\\"would have been obvious\\\" that he exhibited signs of impairment when he was at Woody's, and that when he took too much Xanax he would slur his speech, \\\"black[ ] out,\\\" and display \\\"[b]ad coordination,\\\" this testimony does not create a disputed fact as to whether Wood observed signs of impairment such that he knew, or should have known, that Stewart was intoxicated. Further, as discussed above, although Barbieri concludes in his toxicology report that Stewart was impaired when he was arrested on the night of June 25 and at the time of the accident the following day, he does not render an opinion as to whether Stewart was impaired at the time he picked up his vehicle from Woody's.\\nWe agree with the trial court:\\nWhat remains problematic for Plaintiffs is that this case is fundamentally about Mr. Stewart's behavior when he retrieved his vehicle, and, more directly, Mr. Wood's perceptions of Mr. Stewart at that time. Mr. Stewart admittedly has no memory of that particular encounter. Doctor Barbieri . . . speaks only in generalities and makes no mention of Mr. Stewart's behavior at Woody's. This evidence addresses the assumed appearance of Mr. Stewart, not his actual appearance . Put another way, it would be inappropriate for the jury to make the inferential leap from this evidence that Mr. Wood actually observed that Mr. Stewart was visibly intoxicated.\\n(Citations omitted.)\\nWood testified in his deposition that Stewart did not appear to be impaired when he picked up his vehicle. He explained that Stewart \\\"wasn't falling down\\\" and did not smell of alcohol, have glassy eyes, slurred speech, or seem unsteady on his feet. Wood stated that he was able to understand what Stewart said to him, that Stewart seemed to comprehend what Wood said to him, and that he would not have released the vehicle had Stewart exhibited any signs of impairment. We note that when Stewart's vehicle was searched following the collision the police found, for the first time, a Xanax prescription \\\"tag\\\" in the back seat, thus suggesting that the drugs were taken after Stewart picked up the vehicle at Woody's. See Bourgeois v. Vanderbilt, 639 F. Supp. 2d 958, 966 (W.D. Ark. 2009) (granting summary judgment in favor of a casino on plaintiffs negligent entrustment claim because there was no \\\"testimony or other evidence to indicate that [the casino] knew or should have known that [the defendant] was intoxicated\\\" when he retrieved his vehicle from valet parking), aff'd on other grounds, 417 F. App'x 605 (8th Cir. 2011); see also Weber, 254 P.3d at 199 (rejecting, as insufficient to create a question of fact for trial, expert's testimony that, given the amount of methamphetamine in the driver's system at the time of his arrest, it was probable that he exhibited \\\"characteristic effects\\\" of methamphetamine intoxication when he rented the vehicle (quotation omitted)). Thus, we conclude that the trial court did not err when it granted summary judgment to Woody's on the plaintiffs' negligent entrustment claim.\\nWe likewise reject the plaintiffs' argument that the trial court erred in entering summary judgment in favor of Woody's on their negligence claim. The plaintiffs contend that based upon its towing contract with the Pelham Police Department, Woody's had a duty not to release \\\"a vehicle to an intoxicated person\\\" because \\\"injury to innocent third parties was foreseeable,\\\" and because Woody's \\\"voluntarily assumed a duty not to release vehicles to intoxicated individuals.\\\" However, because there is no evidence that Wood knew, or should have known, that Stewart was impaired when he retrieved his vehicle, we need not decide whether Woody's had a duty to not release a vehicle to an impaired person. Accordingly, there is no evidence that Woody's breached this purported duty. Therefore, the trial court did not err when it granted summary judgment to Woody's on the plaintiffs' negligence claim.\\nAffirmed.\\nDalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.\"}"

nh/12460373.json

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+"{\"id\": \"12460373\", \"name\": \"Petition of Eric Willeke and Regina Willeke\", \"name_abbreviation\": \"In re Willeke\", \"decision_date\": \"2017-05-12\", \"docket_number\": \"No. 2016-0079\", \"first_page\": 802, \"last_page\": \"808\", \"citations\": \"169 N.H. 802\", \"volume\": \"169\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:50:34.200741+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.\", \"parties\": \"Petition of Eric Willeke and Regina Willeke\", \"head_matter\": \"8th Circuit Court-Keene Family Division\\nNo. 2016-0079\\nPetition of Eric Willeke and Regina Willeke\\nSubmitted: February 16, 2017\\nOpinion Issued: May 12, 2017\\nLaw Offices of Joseph S. Hoppock, PLLC, of Keene (Joseph S. Hoppock on the brief), for the petitioners.\\nSamantha Pele, self-represented party, filed no brief.\\nTyler Wyman, self-represented party, filed no brief.\", \"word_count\": \"2046\", \"char_count\": \"13071\", \"text\": \"Hicks, J.\\nThe petitioners, Eric and Regina Willeke, appeal an order of the Circuit Court (Forrest, J.) dismissing their petition for visitation with their now five-year-old great-grandchild for lack of standing. We affirm.\\nThe relevant facts follow. Regina Willeke is the maternal great-grandmother of the child. Eric Willeke is the child's maternal step-great-grandfather. The Willekes' petition alleges that the child lived with the petitioners for most of her life. They were her guardians until November 12, 2015, and they sought great-grandparent visitation rights on September 22, 2015. Tyler Wyman, the child's father, responded to the petition, arguing that New Hampshire law does not confer upon great-grandparents standing to seek visitation. The trial court construed the answer as a motion to dismiss, to which the petitioners objected. In their objection, the petitioners argued that they have a common-law right to seek visitation with the child and, alternatively, that RSA 461-A:13 (Supp. 2016) should be interpreted as conferring upon great-grandparents standing to petition for visitation.\\nThe trial court granted the motion to dismiss, concluding \\\"that the words of [RSA 461-A:13] are not ambiguous and are intended to afford rights to grandparents only.\\\" The trial court did not address the petitioners' common-law claim.\\nOn appeal, the petitioners do not argue that the trial court erred in interpreting RSA 461-A:3. Instead, they argue only that they have common-law standing, independent of RSA 461-A:13, to request that the trial court exercise its parens patriae power to grant them visitation with the child. In the petitioners' view, the common-law right to seek visitation survived the 1991 amendment of RSA 458:17, VI (1983 & Supp. 1991) (amended 2003) (repealed 2005) and the enactment of RSA 458:17-d (1992) (amended 1993, 2004) (repealed 2005), which were succeeded by RSA 461-A:6, V (Supp. 2016) and RSA 461-A:13 respectively, see Laws 2005, 273:1, :20. Thus, the petitioners conclude that the trial court's failure to \\\"consider the availability\\\" of its parens patriae power to order great-grandparent visitation was error. They also argue that the principles of Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), adopted by this court in In the Matter of Rupa & Rupa, 161 N.H. 311, 317-18 (2010), \\\"[a]re [n]ot [ojffended\\\" by the court's exercise of that parens patriae power. (Bolding omitted.) Because we conclude that RSA 458:17, VI, as amended in 1991, and RSA 458:17-d and their statutory successors extinguished courts' common law parens patriae power to order visitation, we need not determine whether the exercise of that power to order great-grandparent visitation would offend the principles of Troxel.\\n\\\"Usually, in ruling upon a motion to dismiss, the trial court is required to determine whether the allegations contained in the petitioners' pleadings are sufficient to state a basis upon which relief may be granted.\\\" Petition of Lundquist, 168 N.H. 629, 631 (2016) (quotation omitted). \\\"To make this determination, the court would accept all facts pleaded by the petitioners to be true and construe all reasonable inferences in the light most favorable to the petitioners.\\\" Id. (quotation omitted). \\\"When, however, the motion to dismiss does not contest the sufficiency of the petitioners' legal claim, but instead challenges their standing to sue, the trial court must look beyond the allegations and determine, based upon the facts, whether the petitioners have sufficiently demonstrated a right to claim relief.\\\" Id. (quotation omitted). \\\"Because the underlying facts are not in dispute, we review the trial court's decision de novo.\\\" Id. (quotation omitted).\\nDetermining whether RSA 458:17, VI, as amended in 1991, RSA 458:17-d, and their successors, RSA 461-A:6, V and RSA 461-A:13, abrogated the common-law right to petition for visitation requires that we engage in statutory interpretation. \\\"Statutory interpretation is a question of law, which we review de novo.\\\" Id. (quotation omitted). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id.\\nPrior to 1989, RSA 458:17, VI (1983) (amended 1991, 2003) (repealed 2005) empowered courts to order grandparent visitation only in divorce proceedings. See Roberts v. Ward, 126 N.H 388, 390-91 (1985). Under the common law, however, courts could use their \\\"parens patriae power to permit grandparental visitation when it [was] in the best interests of the child, in situations where RSA 458:17, VI [was] not applicable.\\\" Id. at 392. In deciding that courts could grant grandparent visitation outside divorce proceedings, we explained that:\\nIt would be shortsighted indeed, for this court not to recognize the realities and complexities of modern family life, by holding today that a child has no rights, over the objection of a parent, to maintain a close extra-parental relationship which has formed in the absence of a nuclear family.\\nId. Thus, Roberts recognized a common-law right of grandparents and others with whom a child had formed a close extra-parental relationship to petition for visitation \\u2014 outside divorce proceedings \\u2014 in the absence of a nuclear family. Id.\\nIn 1989, the legislature enacted RSA 458:17-d, which provided, in relevant part, that:\\nGrandparents, whether adoptive or natural, may petition the court for reasonable rights of visitation with the minor child as provided in paragraph III. The provisions of this section shall not apply in cases where access by the grandparent or grandparents to the minor child has been restricted for any reason prior to or contemporaneous with the divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family.\\nRSA 458:17-d, I; Laws 1989, 814:2. When the legislature passed RSA 458:17-d in 1989, it simultaneously amended RSA 458:17, VI to reflect that courts could grant visitation to grandparents pursuant to RSA 458:17-d. Laws 1989, 314:1-2. Later, in 1991, RSA 458:17, VI was amended to read, in relevant part:\\nIf the court determines that it is in the best interest and welfare of the children, it shall in its decree grant reasonable visitation privileges to a party who is a stepparent of the children or to the grandparents of the children pursuant to RSA 458:17-d.\\nLaws 1991, 93:1.\\nIn 2005, the legislature repealed a large portion of RSA chapter 458 and replaced it with RSA chapter 461-A, entitled \\\"PARENTAL RIGHTS AND RESPONSIBILITIES.\\\" See RSA ch. 458 (2004 & Supp. 2016); RSA ch. 461-A (Supp. 2016); Laws 2005, ch. 273. RSA chapter 461-A controls \\\"cases concerning parental rights and responsibilities,\\\" RSA 461-A:3 (Supp. 2016), and is not limited to divorce cases, see RSA 461-A:13 (\\\"The petition for visitation shall be entered in the court which has jurisdiction over the divorce, legal separation, or a proceeding brought under this chapter.\\\"). The sentence of RSA 458:17, VI, as amended in 1991, that authorized stepparent and grandparent visitation was incorporated into RSA 461-A:6, V. Compare RSA 458:17, VI, with RSA 461-A:6, V. RSA 461-A:13 replaced RSA 458:17-d, and the two statutes are substantially similar. Compare RSA 458:17-d, with RSA 461-A:13.\\nGenerally, \\\"[w]e will not construe a statute . as abrogating the common law unless the statute clearly expresses such an intention.\\\" Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 454 (2015) (quotation omitted). However, when a statute revises the entire subject of a common law cause of action and is clearly designed as a substitute, the common law is abrogated, although no express terms to that effect are used. See Powell v. Catholic Med. Ctr., 145 N.H. 7, 11 (2000). This rule rests upon the principle that:\\n[W]hen the legislature frames a new statute upon [a] subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded.\\nId. (quotation and ellipsis omitted). We conclude that RSA 458:17, VI, as amended in 1991, and RSA 458:17-d abrogated the common-law right to petition for visitation because the statutes revised the entire subject of visitation and were designed as a substitute.\\nThe legislature's intent to revise the entire subject of visitation is evident because RSA 458:17, VI, as amended in 1991, and RSA 458:17-d conferred standing upon stepparents and grandparents to seek visitation in the same circumstances that the common law, together with the earlier version of RSA 458:17, VI, conferred standing upon those with whom a child had formed a close extra-parental relationship. RSA 458:17-d specifically permitted grandparents standing to seek visitation in \\\"the absence of a nuclear family.\\\" RSA 458:17-d, I; see O'Brien v. O'Brien, 141 N.H. 435, 436-37 (1996) (construing RSA 458:17-d to authorize grandparent visitation only when one of the following conditions has come to pass: \\\"divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family\\\" (quotation omitted)). The common law conferred standing upon those with whom a child had formed a close extra-parental relationship in substantially similar circumstances. Roberts, 126 N.H. at 390-92 (discussing court's parens patriae power to grant visitation in certain circumstances outside of divorce proceedings, and explaining that RSA 458:17, VI controlled visitation in divorce proceedings). In fact, the legislature incorporated the very language used in Roberts-, \\\"the absence of a nuclear family.\\\" RSA 458:17-d, I; RSA 461-A:13, I; see Roberts, 126 N.H. at 392.\\nThe fact that RSA 458:17, VI, as amended in 1991, and RSA 458:17-d did not simply codify Roberts, but rather significantly altered the standard we articulated in Roberts, demonstrates that the statutes were designed as a substitute for the common law. The statutes altered the common law in four respects. First, the legislature circumscribed the class of people who could petition for visitation. When it amended RSA 458:17, VI in 1991, the legislature permitted only grandparents and stepparents to seek visitation. Laws 1991, 93:1. By contrast, the common law conferred standing to seek visitation upon anyone with whom a child had formed a close extra-parental relationship. Roberts, 126 N.H. at 392. Second, RSA 458:17-d changed the manner in which courts decide whether to grant grandparent visitation. The statute required courts to consider the factors that, in Roberts, we only suggested, but did not require, that they consider. See RSA 458:17-d, II (listing factors suggested in Roberts); Roberts, 126 N.H. at 394. It also added two factors that courts must consider. See RSA 458:17-d, II (requiring courts to also address a guardian ad litem's recommendation and whether visitation would interfere with parent's authority over child or with parent-child relationship); Roberts, 126 N.H. at 394. Third, RSA 458:17-d added the significant caveat that no visitation would be permitted if the grandparent's access to the child had been \\\"restricted for any reason\\\" prior to the triggering condition. RSA 458:17-d, I. Finally, the statute dictated where the petition should be filed and allocated the costs of the petition. RSA 458:17-d, III, VII.\\nAccordingly, we now hold that the common-law right to petition for visitation was superseded by the enactment of RSA 458:17, VI, as amended in 1991, and RSA 458:17-d because the legislature revised the entire subject of visitation, and the statutes were clearly designed as substitutes for the common law. The legislature preserved that statutory scheme when it enacted RSA 461-A:6, V and RSA 461-A:13. Therefore, we conclude that the trial court did not err when it did not consider its parens patriae power as a basis to order great-grandparent visitation. Thus, we affirm the trial court's dismissal of the great-grandparents' petition for visitation for lack of standing.\\nFinally, any issues raised in the notice of appeal, but not briefed, are deemed waived. See Town of Barrington v. Townsend, 164 N.H. 241, 251 (2012).\\nAffirmed.\\nDalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.\"}"

nh/1294860.json

@@ -0,0 +1 @@
+"{\"id\": \"1294860\", \"name\": \"Burnham & Company v. Richard Kleinhans, Jr.\", \"name_abbreviation\": \"Burnham & Co. v. Kleinhans\", \"decision_date\": \"1974-07-19\", \"docket_number\": \"No. 6813\", \"first_page\": 472, \"last_page\": \"474\", \"citations\": \"114 N.H. 472\", \"volume\": \"114\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:48:46.073990+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Burnham & Company v. Richard Kleinhans, Jr.\", \"head_matter\": \"Rockingham\\nNo. 6813\\nBurnham & Company v. Richard Kleinhans, Jr.\\nJuly 19, 1974\\nArthur J. Reinhart and Charles M. Eldredge (Mr. Eldredge orally) for the plaintiff.\\nMaurice J. Murphy, Jr. and Richard M. Kleinhans, Jr., pro se (Mr. Kleinhans orally), for the defendant.\", \"word_count\": \"646\", \"char_count\": \"4001\", \"text\": \"Grimes, J.\\nDismissal of an action on the case and of bill in equity for unjust enrichment raises issues of burden of proof and of whether a foreign partnership, on the basis of business conducted by phone and mail, is doing such business as to require registration with the secretary of state before maintaining suit in this State. Plaintiff's suits were dismissed solely on the jurisdictional issue under RSA S05 A:4 and an exception was reserved and transferred by Perkins, J.\\nPlaintiff alleges it is a limited partnership, a stockbroker, a member of the New York Stock Exchange, and that it has a place of business in New York City. Plaintiff further alleges that defendant has maintained an account with plaintiff whereby defendant occasionally ordered the purchase and sale of securities. As of the end of 1970, defendant's account with plaintiff, according to its records, showed a debit of approximately $1,700. A subsequent sale of approximately $5,000 worth of securities gave defendant roughly a $3,300 credit. Plaintiff alleges that in February 1971, in balancing these transactions, it accidently overpaid defendant more than $2,000, which defendant has now refused to repay.\\nThe parties agree that plaintiff maintains no agents or place of business in New Flampshire. It appears the partnership conducted its services solely through the mails and by phone. The motion to dismiss alleges merely that the plaintiff was a foreign partnership which had not been registered with the secretary of state. The motion appears to have been granted on the basis of the plaintiff's failure to show compliance with RSA ch. 305-A (Supp. 1973). The issues on appeal, therefore, are which party has the burden of proving compliance with the statute and whether that party has met its burden.\\nRSA 305-A: 1 (Supp. 1973) provides that every foreign partnership, including limited partnerships, desiring to \\\"do business\\\" in the State, must register and pay an annual fee to the secretary of state. RSA 305-A:4 provides that a partnership failing to comply cannot sue in the courts of the State. Chapter 305-A, in its language and purpose, is modeled on RSA ch. 300 which requires registration of foreign corporations. N.H.S. Jour. 784 (1965). We see no good reason to distinguish the two chapters. Accordingly, on authority of R.C. Allen Bus. Mach., Inc. v. Acres, 111 N.H. 269, 281 A.2d 162 (1971), the incapacity of the partnership to sue is an affirmative defense which defendant must plead and prove. Defendant's argument that this burden is too onerous, is more easily carried out by plain tiff and, therefore, should be placed on plaintiff is rejected. Id. at 272, 281 A.2d at 164.\\nOn the facts presented, we think defendant failed to carry this burden. The quantum of activity constituting \\\"doing business\\\" under this type of statute is greater than that which subjects a corporation to jurisdiction. Myers Company v. Piche, 109 N.H. 357, 252 A.2d 427 (1969). The single item of evidence introduced was a letter from the secretary of state indicating plaintiff had not registered. By itself, the letter is not enough for defendant to prevail on his motion. R.C. Allen Bus. Mach., Inc. v. Acres, 111 N.H. 269, 281 A.2d 162 (1971). Further, in order to require registration, defendant must prove at least some of plaintiff's transactions were wholly intrastate. On appeal it was disclosed plaintiff had registered with the insurance commissioner as a dealer in securities pursuant to RSA ch. 421. Compliance with this chapter does not, as a matter of law, compel registration under RSA ch. 305-A since a securities dealer could be conducting exclusively interstate transactions.\\nPlaintiff's exception sustained; remanded.\\nAll concurred.\"}"

nh/1294904.json

@@ -0,0 +1 @@
+"{\"id\": \"1294904\", \"name\": \"State of New Hampshire v. Ronald Maynard\", \"name_abbreviation\": \"State v. Maynard\", \"decision_date\": \"1974-07-30\", \"docket_number\": \"No. 6827\", \"first_page\": 525, \"last_page\": \"527\", \"citations\": \"114 N.H. 525\", \"volume\": \"114\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:48:46.073990+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"State of New Hampshire v. Ronald Maynard\", \"head_matter\": \"Nashua District Court\\nNo. 6827\\nState of New Hampshire v. Ronald Maynard\\nJuly 30, 1974\\nWarren B. Rudman, attorney general, and Thomas D. Rath, assistant attorney general, by brief, for the State of New Hampshire.\\nProlman & Holland, by brief, for the defendant.\", \"word_count\": \"636\", \"char_count\": \"3742\", \"text\": \"Grimes, J.\\nThe issue in this case is whether a police officer may properly stop a motor vehicle when he honestly and reasonably believes the driver may be suffering from a health problem.\\nDefendant was charged and convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of RSA 262-A:62 (Supp. 1973). He made an oral motion to dismiss the case on the ground that his constitutional rights under both the New Hampshire and the United States Constitutions had been violated when he was stopped while driving his vehicle. The question raised by the defendant's motion was transferred by Harkaway, J., on an agreed statement of facts.\\nIt has been agreed that on August 7, 1973, at about 12:50 a.m., a Nashua police officer noticed defendant's vehicle proceeding north on Main Street and that it was traveling at a fast rate of speed and \\\"appeared to come to a somewhat quick slowing down when the police vehicle would have first been visible.\\\" As the vehicle proceeded, the police officer followed it and \\\"noticed it swerved one time within the defendant's own lane without crossing any of the lines.\\\" The officer stopped the vehicle. It is further agreed \\\"the officer testified that he had no suspicion that the defendant had committed any crime or was about to commit a crime and that he was not in the midst of a routine check of license or registration and the officer was not about to issue a warning or make an arrest for any violation. The officer testified that he felt there might be something physically wrong with the driver of the vehicle and that was the reason for which the vehicle was stopped.\\\"\\nDefendant contends that the evidence leading to his being arrested and charged with a violation of RSA 262-A.-62 (Supp. 1973) was obtained when he was being illegally detained and that the evidence is inadmissible against him under Mapp v. Ohio, 367 U.S. 643 (1961), and Terry v. Ohio, 392 U.S. 1 (1968). See also Davis v. Mississippi, 394 U.S. 721 (1969).\\nIn our opinion this case is governed by State v. Severance, 108 N.H. 404, 237 A.2d 683 (1968). There the court quoted the following language from Myricks v. United States, 370 F.2d 901, 904 (5th Cir. 1967): \\\"The State can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness . The purpose of the check is to determine the present, not the past: is the car, is the driver now fit for further driving?\\\"\\nIn Severance the police were conducting a road check in which they were stopping all vehicles proceeding in one direction. It was when the Severance car was thus stopped that the police discovered evidence of intoxication. It was held that such checks violated no constitutional rights so long as they are not used as a subterfuge for uncovering evidence of other crimes and that evidence of other crimes coming into view while conducting such good-faith check is admissible.\\nCertainly if officers may in good faith conduct a road check for the purpose of determining the fitness of drivers, they may so do when they in good faith reasonably believe that the driver of a particular vehicle may be ill and physically unfit to drive. The key, however, is whether the officer acted reasonably and in good faith and not by subterfuge to obtain evidence of a crime. The burden was on the prosecution to prove reasonableness and good faith.\\nDefendant's exceptions overruled.\\nAll concurred.\"}"

nh/1307098.json

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+"{\"id\": \"1307098\", \"name\": \"State (ex rel. Duke & a.) v. Marston\", \"name_abbreviation\": \"State ex rel. Duke v. Marston\", \"decision_date\": \"1888-06\", \"docket_number\": \"\", \"first_page\": 603, \"last_page\": \"604\", \"citations\": \"64 N.H. 603\", \"volume\": \"64\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T17:29:37.953340+00:00\", \"provenance\": \"CAP\", \"judges\": \"Carpenter, J., did not sit: the others concurred.\", \"parties\": \"State (ex rel. Duke & a.) v. Marston.\", \"head_matter\": \"State (ex rel. Duke & a.) v. Marston.\\nA petition under Laws of 1887, c. 77, must allege that the building complained against is used for the illegal sale or keeping for sale of spirituous or malt liquors.\\nSuch a petition ought to be framed according to the forms in equity, prescribed by the rules of court.\", \"word_count\": \"970\", \"char_count\": \"5534\", \"text\": \"Smith, J.\\nThis is a petition under Laws 1887, c. 77, signed by twenty legal voters of the town of Berlin, and is as follows:\\n\\\"Coos ss. To the Supreme Court:\\n\\\" The undersigned petitioners, legal voters of the town of Berlin in said county of Coos, complain against the building known as the Cascade House, situated in said town of Berlin, on the westerly side of Main street in Berlin Falls village in said Berlin, and say that said building is occupied by its owner, Henry F. Marston, his clerks, servants, and employes, for the purpose of selling and keeping for sale spirituous and malt liquors, wine, and cider, and is a common nuisance.\\n\\\"Wherefore your petitioners pray that said building may be adjudged a common nuisance, and that said Henry F. Marston, his clerks, servants, and employes, and all other persons who shall occupy the said building, may be forever enjoined and restrained from keeping for sale or selling spirituous or malt liquors, wine, or cider, in or upon said premises.\\\"\\nThe defendants demur, and the question is as to the sufficiency of the petition. The statute is as follows:\\n\\\" Section 1. Any building, place, or tenement, in any town or city, that is resorted to for prostitution, lewdness, or illegal gaming, or that is used for the illegal sale or keeping for sale of spirituous or malt liquors, wine, or cider, is declared to be a common nuisance.\\n\\\" Section 2. The supreme court shall have jurisdiction in equity, upon information filed by the solicitor for the county, or upon petition of not less than twenty legal voters of such town or city, setting forth any of the facts contained in Section 1 of this act, to restrain, enjoin, or abate the same, and an injunction for such purpose may be issued by said court or any justice thereof.\\\"\\nThe petition alleges that the building complained of \\\" is occupied by its owner . . . for the purpose of selling,\\\" etc. This is obscure. It may mean that the occupant has an unexecuted intent to use the building for selling, etc. It may mean that the building is so used. In civil actions, where words are used which bear a natural sense and an artificial sense, they may be taken either way against the party pleading; and if either' sense will operate against the pleader, his pleading is defective. Gould Pl., c. 3, s. 54. The purpose of the occupant is immaterial so long as it is not carried into effect. It is the use made of the building for illegal purposes which makes the building a common nuisance.\\nLadd & Fletcher and D. J. Daley, for the defendants.\\nR. N. Chamberlin, for the petitioners.\\nThere is no allegation that the selling or keeping for sale is illegal. The sale of cider in quantities of ten gallons and upwards is not illegal; and sales of intoxicating liquor by a town agent within the limitations of his appointment are legal. The petition is defective in these two particulars.\\nThe petition is informal, at least, in that it is not framed according to the form prescribed for a bill in equity. See forms in equity in the rules of court, 56 N. H. 612. The petitioners \\\"complain .against the building.\\\" The owner, who is also the occupant, is not in terms made defendant. The \\\"person \\\" and \\\" case \\\" may, perhaps, \\\"be rightly understood by the court\\\" without amendment (G. L., c. 226, s. 8) ; but the forms for proceedings in equity were prepared by the late Chief-Justice Bell (than whom no one was better qualified), to secure uniformity of procedure, to avoid obscurity and uncertainty, to facilitate trials, and to diminish the expense of litigation. Conformity to the rules ought therefore to be observed. This is not a proceeding for the forfeiture of any property real or personal, and in that respect is unlike State v. Barrels of Liquor, 47 N. H. 369, State v. Rum, 51 N. H. 373, State v. Whiskey, 54 N. H. 164, and State v. Tufts, 56 N. H. 137. The building is made a common nuisance by its illegal use. The nuisance may be abated by an injunction against the illegal .use, and by legal process for enforcing the injunction.\\nA general description of the illegal use that constitutes the nuisance would seem to be all that the statute requires, or that would ordinarily be practicable. A particular description of the liquor kept or sold, with the particulars of the various sales and the like, might not always be convenient or possible, and if required, the object of the statute would be defeated. State v. Whiskey, 54 N. H. 164, 166.\\nThe defendants have not, by brief or otherwise, indicated their grounds of demurrer; and the question whether there are other defects in the petition is not decided.\\nAs to the .other petitions, where there is no allegation that the occupants were the owners of the buildings, and in which demurrers were also filed, we are of opinion that such allegation is not necessary. The owner need not necessarily be joined with the \\u2022occupant as defendant. He may be unknown, or there may be numerous owners and widely scattered. A petition may be maintained against the occupant; but the injunction would not be issued against an owner who was not a defendant, and who had not had notice and an opportunity to be heard.\\nDemurrer sustained.\\nCarpenter, J., did not sit: the others concurred.\"}"

nh/1307250.json

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+"{\"id\": \"1307250\", \"name\": \"Mowry v. Blandin\", \"name_abbreviation\": \"Mowry v. Blandin\", \"decision_date\": \"1885-12\", \"docket_number\": \"\", \"first_page\": 3, \"last_page\": \"5\", \"citations\": \"64 N.H. 3\", \"volume\": \"64\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T17:29:37.953340+00:00\", \"provenance\": \"CAP\", \"judges\": \"Blodgett, Carpenter, and Bingham, JJ., did not sit: the others concurred.\", \"parties\": \"Mowry v. Blandin.\", \"head_matter\": \"Mowry v. Blandin.\\nAn assessment of a joint and undivided tax upon lots of land owned by different persons is not authorized by the statutes, and is not legalized by a general healing act.\\nSection- 14, c. 58, Gen. Laws, providing for the publication of notice for three successive weeks, at least six weeks before a sale, requires the last publication to be at least six weeks before the sale.\\nTitle acquired after the commencement of the suit should be pleaded in bar of the further maintenance of the action.\", \"word_count\": \"1246\", \"char_count\": \"6925\", \"text\": \"Smith, J.\\nThis is a writ of entry for a lot of land in Bethlehem known as the Ira G. Eastman place, which formerly belonged to the Waumbec Lumber Company, from whom the plaintiff claims to have derived title by conveyances. The defendant has three conveyances from the tax-collector, who sold the land for non-payment of taxes in 1877, 1878, and 1880. The tax of 1877 was a joint and indivisible tax, assessed upon this lot and other land of other persons, appraised together at $600. There was no statute authorizing such an assessment; and c. 64, Laws of 1877, legalizing the taxes assessed in the town that year, is presumed to have been intended to cure defects of irregularity only, and not to authorize an unjust sale- of this lot for an inseverable tax assessed on it and on another lot belonging to other persons. Cooley Const. Lim. 370, 379, n. 1, 382, n. 1. White Mountains Railroad v. White Mountains (N. H.) Railroad, 50 N. H. 50, 77; Rich v. Flanders, 39 N. H. 304; Kent v. Gray, 53 N. H. 576; Tifft v. City of Buffalo, 82 N. Y. 204; Jennings v. Collins, 99 Mass. 29; Barker v. Blake, 36 Me. 433; Hamilton v. City of Fond du Lac, 25 Wis. 490; Siegel v. Outagamie, 26 Wis. 70; Wright v. Cradlebaugh, 3 Nev. 341; Shimmin v. Inman, 26 Me. 228; Crane v. Janesville, 20 Wis. 305; People v. San Francisco Sav. Union, 31 Cal. 132, 139; Schumacker v. Toberman, 56 Cal. 508, 511; People v. Lynch, 51 Cal. 15; Thames Mfg. Co. v. Lathrop, 7 Conn. 550; People v. Goldtree, 44 Cal. 323; Hart v. Henderson, 17 Mich. 218; Desty, Taxation, 616-622; Black., Tax Tit., 106, 107. Without another appraisal determining the value of this lot, its owner's share of the public expense could not be ascertained. There was no assessment of his share, and the error was not corrected. Gen. Laws, c. 57, s. 10.\\nThe sale May 30, 1879, for the taxes of 1878, was not valid as against the plaintiff. The statute required the sale to be advertised by \\\" publication for three successive weeks in some newspaper printed in the county or judicial district in which said town is situate, at least six weeks before the sale.\\\" G. L., c. 58, s. 14. This part of the statute was repealed July 19, 1879 (Laws of 1879, c. 57, s. 12), but was in force at the time of the sale, having been enacted July 11, 1878 (Laws of 1878, c. 9). \\\"Publication for three successive weeks' , at least six weeks before the sale,\\\" means that the last publication shall be at least six weeks before the sale. This provision of the statute is mandatory, and not directory merely. If this were not so, publication might be wholly dispensed with. The provision in regard to advertising non-resident land is different. The statute requires the collector, on or before the first day of January following the assessment, to advertise the property on which the taxes have not been paid, \\\" three weeks successively, commencing at least eight weeks before the sale; \\\" and it has been held that the advertisement is seasonably published if the first publication is on the first day of January. French v. Spaulding, 61 N. H.-.\\nApril 1, 1880, when the tax of that year was assessed, the title to the premises in dispute stood as follows: Mowry, the plaintiff, was mortgagee; Smith, assignee in bankruptcy of the Waumbec Lumber Company, owned the equity of redemption; and Blandin, the defendant, was in possession by Gordon his tenant, claiming title under the collector's deed dated June 17, 1879. Mowry and Smith were non-residents. Whether Blandin was resident or nonresident does not appear; nor is it material, as he then had no-valid title to the premises. The statute .is, \\\"Real and personal property shall be taxed to the person claiming the same, or to the person wild is in possession and actual occupancy thereof, if such person will consent to be taxed for the same; but such real estate shall be taxed in the town in which it is situate.\\\" \\\" If any person not the owner is living on any farm or in any house on the first day of April, and refuses to be taxed for it, it shall be taxed as resident by the number of the lot, or such other description as it is commonly known by, with the name of the occupant as such; and estate so taxed shall be holden and liable to be sold in the same manner as the real estate of residents is holden and sold for taxes.\\\" G. L., c. 54, ss. 11, 19. By the word \\\" person,\\\" as used in the statute, is meant \\\"inhabitant of the town.\\\" Cushing, C. J., in Bowles v. Clough, 55 N. H. 389, 390. The premises could not be taxed to Mowry as claimant, under s. 11, for he was not an inhabitant of the town. They might and should have been taxed to Gordon as occupant, with his consent. They were taxed under s. 19, by the description \\\" F. Gordon, occupant,\\\" and with the name \\\" Eastman, Ira G. place.\\\" A strict compliance with the statute would have reversed the name and description, but the informality is not sufficient to invalidate the assessment, if it is valid in other respects, for it was not such as to mislead any one.\\nDrew, Jordan & Carpenter and Bingham, Mitchells & Batchellor, for the plaintiff.\\nAldrich & Remich, for the defendant.\\nThe case finds the premises were known as the \\\"Ira G. Eastman place,\\\" and that Gordon was the occupant. The description is therefore sufficient. The case does not find that Gordon refused, or consented. The inference from the fact that consent is not found is, that he refused, and the premises were properly taxed under s. 19. Perley v. Stanley, 59 N. H. 587; Bowles v. Clough, 55 N. H. 389: Perham v. Fibre Co., ante 2.\\nIt is objected that the sale and deed to the defendant took place after the commencement of this suit, and he has not pleaded the title thus acquired. Title acquired after the commencement of a suit should be pleaded in bar of the further maintenance of the action. Bailey v. March, 3 N. H. 274.\\nIt is also objected, that the defendant being in possession and taking the rents and profits, it was his duty to pay the taxes, and therefore is estopped to set up a title acquired from the sale for the non-payment of taxes; also, that no notice of the tax was given to the owner or occupant. Upon these points we express no opinion, as the case is decided against the defendant upon the other grounds already considered. Upon the pleadings the plaintiff is entitled to judgment.\\nCase discharged.\\nBlodgett, Carpenter, and Bingham, JJ., did not sit: the others concurred.\"}"

nh/1401697.json

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+"{\"id\": \"1401697\", \"name\": \"The State of New Hampshire v. Alexander R. Cole\", \"name_abbreviation\": \"State v. Cole\", \"decision_date\": \"1997-12-30\", \"docket_number\": \"No. 95-863\", \"first_page\": 519, \"last_page\": \"523\", \"citations\": \"142 N.H. 519\", \"volume\": \"142\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:39:26.319542+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"The State of New Hampshire v. Alexander R. Cole\", \"head_matter\": \"Grafton\\nNo. 95-863\\nThe State of New Hampshire v. Alexander R. Cole\\nDecember 30, 1997\\nJeffrey R. Hoivard, attorney general (Richard J. Lehmann, attorney, on the brief and orally), for the State.\\nJames E. Duggan, chief appellate defender, of Concord, by brief and orally, for the defendant.\\nAlexander R. Cole, by brief, pro se.\", \"word_count\": \"1607\", \"char_count\": \"9749\", \"text\": \"JOHNSON, J.\\nThe defendant, Alexander R. Cole, was convicted of one count of felonious sexual assault, see RSA 632-A:3, III (1996), and sentenced to an extended term of imprisonment pursuant to RSA 651:6, 11(d) (1996). On appeal, he argues that the Superior Court (Smith, J.) erred in refusing to rule on the admissibility of two prior convictions for impeachment purposes, see N.H. R. EV. 609, before the defendant had decided whether to testify, and that the State failed to prove all material elements of the felonious sexual assault charge. The defendant also argues, and the State concedes, that it was improper for the court to sentence him under RSA 651:6, 11(d), where his two prior offenses were court martial convictions. We affirm the defendant's conviction but vacate and remand for a new sentence.\\nThe following facts were adduced at trial. In February 1995, the eleven-year-old victim was walking home from a dance at the Carter Community Building in Lebanon when a man wearing a green jacket began following him. The man then walked in front of the victim and proceeded to expose his genitals to the victim. The victim testified that as he tried to run past the man, the man blocked his way and the victim was knocked down. The victim testified that during the incident, the man grabbed the victim's penis. The defendant was subsequently arrested and convicted of one count of felonious sexual \\u00e1ssault. During sentencing, the superior court considered the defendant's two prior court martial convictions in imposing an enhanced sentence of twenty to forty years. This appeal followed.\\nThe defendant first argues that the trial court erred in refusing to rule on the admissibility of prior convictions before he decided whether to testify. Before trial, the State moved in limine to introduce two prior court martial convictions, one for sodomy and the other for indecent exposure, as impeachment evidence pursuant to New Hampshire Rule of Evidence 609. In chambers, the trial court noted that the State's motion was \\\"a relatively poor attempt to get around [Rule] 404(b).\\\" The State nonetheless argued that these convictions were relevant to the issue of credibility because the defendant had told police that he had been honorably discharged from the Army. In response, the court reiterated its belief that the State's motion was \\\"an attempt to get around 404(b).\\\" Additionally, the State argued that it should be able to question the defendant about whether he was attracted to young boys and, if the defendant denied such attraction, about the two convictions. The court refused to rule before the defendant had decided whether to take the stand, reasoning that it was unable to rule \\\"in a vacuum\\\" and that \\\"it may be moot in any event.\\\"\\nOn appeal, the defendant argues that the court's refusal to rule violated his constitutional right to testify in his own defense. Compare Apodaca v. People, 712 P.2d 467, 472-73 (Colo. 1985) (refusal to rule impermissibly burdens defendant's due process right to testify in his own defense) with United States v. Masters, 840 F.2d 587, 590-91 (8th Cir. 1988) (no constitutional entitlement to ruling even if refusal inhibits defendant from testifying on his own behalf). We will not engage in a constitutional analysis, however, because counsel did not raise a constitutional basis for his objection at trial. State v. Weeks, 140 N.H. 463, 467, 667 A.2d 1032, 1035 (1995).\\nThe defendant concedes that \\\"defense counsel did not expressly invoke the defendant's right to testify in his objection,\\\" because he argued only that \\\"tactically I need to know in advance how the Court's going to rule on this issue before I proceed.\\\" The defendant argues that the constitutional issue was preserved nonetheless because the \\\"judge's response indicates he understood that the defense wanted a ruling so the defendant could decide whether he should testify.\\\" The purpose of our preservation requirement is to ensure that the trial court is made aware of the substance of the objection and thus given an opportunity to correct the error, see, e.g., State v. Ryan, 135 N.H. 587, 589, 607 A.2d 954, 955 (1992), and to discourage \\\"parties unhappy with the trial result [from combing] the record, endeavoring to find some alleged error never addressed by the trial judge that could be used to set aside the verdict,\\\" State v. Menard, 133 N.H. 708, 710, 584 A.2d 752, 754 (1990).\\nThe exchange between counsel and the trial judge was sufficient to preserve the issue of whether the trial judge erred in refusing to rule, but not the constitutional component of the objection, because the constitutional implications of the trial court's decision were not made clear to the trial judge. See State v. Giordano, 138 N.H. 90, 93, 635 A.2d 482, 483 (1993) (because \\\"defendant did not frame an argument in constitutional terms below,\\\" he cannot do so on appeal). Counsel's objection was made pretrial, and as such, the range of tactical decisions affected by the court's ruling was not limited to whether the defendant was going to testify. Cf. State v. McClure, 692 P.2d 579, 583 (Or. 1984) (reciting number of tactical decisions influenced by ruling on admissibility). Accordingly, because \\\"the constitutional dimension of the defendant's argument was not called to the trial court's attention,\\\" State v. Plante, 134 N.H. 456, 459, 594 A.2d 1279, 1282 (1991), we review the court's refusal to make a pretrial ruling on the admissibility of the defendant's prior court martial convictions for an abuse of discretion only. See Giordano, 138 N.H. at 93, 635 A.2d at 483.\\nTo show an abuse of discretion, the defendant must show that \\\"the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case.\\\" State v. Gooden, 133 N.H. 674, 677, 582 A.2d 607, 609 (1990) (quotation omitted). A number of courts have declared, and we concur, that, although not absolutely required, trial courts should rule on the admissibility of prior convictions as impeachment evidence as early as practicable. See, e.g., United States v. Oakes, 565 F.2d 170, 171 (1st Cir. 1977); Johnson v. State, 666 So. 2d 499, 502 (Miss. 1995); cf. State v. Staples, 120 N.H. 278, 285, 415 A.2d 320, 324 (1980) (decided under prior law) (expressing preference for defense counsel to challenge admissibility of impeachment evidence pretrial). Courts have been reluctant, however, to find an abuse of discretion where the trial court has refused to issue a ruling pretrial, see, e.g., United States v. Witschner, 624 F.2d 840, 844 (8th Cir.), cert. denied, 449 U.S. 994 (1980), even where refusal to rule might discourage the defendant from testifying, Masters, 840 F.2d at 590. Trial courts have no inherent \\\"duty to aid the defendant in formulating his trial strategy regarding the risks of impeachment should he decide to take the stand.\\\" Witschner, 624 F.2d at 844. Furthermore, it is not \\\"practicable for an appellate court to launch itself into the business of second-guessing trial judges on a matter so intimately bound up with the conduct of trial, given the myriad individual circumstances and considerations that will affect different cases.\\\" Oakes, 565 F.2d at 173. Accordingly, we agree with those courts that find reversible error only where there has been \\\"a clear abuse of discretion.\\\" Masters, 840 F.2d at 591.\\nIn this case, the defendant failed to demonstrate that the trial court's refusal to rule was clearly unreasonable to the prejudice of his case. Defense counsel, in his objection, made no argument against admissibility and gave no indication of the potential prejudice to his case. Cf. N.H. R. EV. 609(a) (court may admit certain evidence of prior crimes if probative value outweighs prejudice to the defendant). Counsel merely stated in general terms that \\\"tactically I need to know in advance how the court's going to rule.\\\" We find that because the defendant's objection was vague at best, the trial court did not act unreasonably in postponing its decision to rule. As such, \\\"[a]n advance ruling would have required speculation the trial court was not required to undertake.\\\" United States v. Kennedy, 714 F.2d 968, 975 (9th Cir. 1983), cert. denied, 465 U.S. 1034 (1984). Similarly, we can only speculate about the nature and content of the defendant's case had the court issued a ruling pretrial and its effect on the entire proceeding. Cf. Staples, 120 N.H. at 284, 415 A.2d at 324 (this court \\\"cannot base a finding that the trial court abused its discretion upon mere speculation\\\"). Accordingly, we find no error.\\nThe defendant next argues that the State failed to prove the mens rea element of the offense of felonious sexual assault, i.e., that the contact involved was done intentionally and \\\"for the purpose of sexual arousal or gratification,\\\" RSA 632-A:l, IV (1996). See RSA 632-A:3, III. This issue was not preserved for appellate review. At trial, defense counsel argued that the State failed to prove the actus reus element, not mens rea. Moreover, this issue was not raised in the defendant's notice of appeal. See State v. Horne, 136 N.H. 348, 349, 615 A.2d 1251, 1252 (1992).\\nFinally, the State concedes that it was improper for the trial court to impose an extended sentence under RSA 651:6, 11(d). Accordingly, we vacate the defendant's sentence and remand for resentencing.\\nConviction affirmed; sentence vacated; remanded for resentencing.\\nAll concurred.\"}"

nh/1401823.json

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+"{\"id\": \"1401823\", \"name\": \"Appeal of Merrimack County Board of Commissioners (New Hampshire Public Employee Labor Relations Board)\", \"name_abbreviation\": \"Appeal of Merrimack County Board of Commissioners\", \"decision_date\": \"1998-05-14\", \"docket_number\": \"No. 96-162\", \"first_page\": 768, \"last_page\": \"772\", \"citations\": \"142 N.H. 768\", \"volume\": \"142\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:39:26.319542+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Appeal of Merrimack County Board of Commissioners (New Hampshire Public Employee Labor Relations Board)\", \"head_matter\": \"Public Employee Labor Relations Board\\nNo. 96-162\\nAppeal of Merrimack County Board of Commissioners (New Hampshire Public Employee Labor Relations Board)\\nMay 14, 1998\\nGeorge A. Stewart, assistant county attorney, of Concord, by brief and orally, for the petitioner.\\nMichael C. Reynolds, general counsel, State Employees\\u2019 Association of New Hampshire, Inc., S.E.I.U., AFL-CIO, CLC Local 1984, of Concord, by brief and orally, for the respondent.\", \"word_count\": \"1287\", \"char_count\": \"8037\", \"text\": \"HORTON, J.\\nThe petitioner, Merrimack County Board of Commissioners (county), appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB). See RSA 273-A:14 (1987); RSA 541:6 (1997). The PELRB denied the county's claim that the respondent, the State Employees Association (SEA), committed an unfair labor practice by demanding arbitration of a non-arbitrable matter and ordered the parties to arbitration. We reverse.\\nThe SEA is the exclusive representative of certain employees at the Merrimack County Department of Corrections. The county and the SEA negotiated numerous collective bargaining agreements (CBA) over the past decade; the present dispute involves the CBA effective April 1, 1994, through April 1, 1997. The previous CBAs contained a five-step wage schedule for annual wage increases within each labor grade. Each CBA consistently established the effective date for annual step increases to be the employee's anniversary date, i.e.: (1) the date of an employee's entrance or reentrance into county employment for employees hired after April 1, 1977; and (2) July 1 for all other employees. The CBA at issue added three new step levels to each labor grade but did not modify the existing provision establishing the anniversary date for each employee's annual increase.\\nSubsequently, the SEA demanded that all employees who had reached the maximum wage level prior to the CBA at issue receive an immediate step increase on July 1, 1994, rather than on their regular anniversary date. Essentially, the SEA demanded that the \\\"maxed out\\\" employees receive a \\\"catch up\\\" step increase so that they would receive a second step increase at the time the remaining employees received their first. The county refused on the basis that the \\\"maxed out\\\" employees were only entitled to a step increase on their regular anniversary dates and were not entitled to an \\\"early\\\" step increase. The SEA demanded that the county submit the dispute to binding arbitration under Article XVIII of the CBA, which states:\\nThe purpose of this Article is to provide a mutually acceptable procedure for adjusting grievances arising from an alleged violation, misinterpretation or misapplication with respect to one or more unit employees, of any provision of this Agreement except those excluded expressly.\\nThe county argued, inter alia, that the SEA's step increase demand was not based on a provision of the CBA, and thus was beyond the scope of Article XVIII. The SEA admitted that its claim was not based on a provision within the CBA, but contended that it was based on a \\\"mistakenly excluded\\\" provision that had been negotiated and agreed to by the parties. The SEA argued that the dispute was based on a \\\"misinterpretation\\\" of the CBA and was thus arbitrable under Article XVIII.\\nOn May 19, 1995, the county filed a complaint with the PELRB claiming the SEA committed an unfair labor practice by demanding arbitration of a non-arbitrable matter. See RSA 273-A:5,11(f) (1987). The county relied upon the SEA's statement that its demand was not based on a provision within the CBA, but was instead based on a \\\"mistakenly excluded\\\" provision allegedly negotiated and agreed to by the county and the SEA. The PELRB found the wage term of the contract susceptible to an interpretation for the SEA and the dispute arbitrable and ordered the parties to arbitration. The PELRB apparently based its decision on language in the wage schedule, an appendix to the CBA, rather than on any text within the CBA itself. The county appeals.\\nOn appeal, the county assigns several points of error to the PELRB's decision. Because we hold that contract reformation for an omitted CBA provision is not subject to binding arbitration under the CBA, we need not address the county's remaining arguments.\\nWe will not overturn the PELRB's decision unless it is erroneous as a matter of law, unjust, or unreasonable. See RSA 541:13 (1997); Appeal of Londonderry School District, 142 N.H. 677, 680, 707 A.2d 137, 139 (1998). We presume that the PELRB's findings of fact are lawful and reasonable. Appeal of Westmoreland School Bd., 132 N.H. 103, 105, 564 A.2d 419, 420 (1989). We consider four principles in determining whether a dispute is arbitrable:\\n(1) arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit; (2) unless the parties clearly state otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator; (3) a court should not rule on the merits of the parties['] underlying claims when deciding whether they agreed to arbitrate; and (4) under the \\\"positive assurance\\\" standard, when a CBA contains an arbitration clause, a presumption of arbitrability exists, and in the absence of any express provision excluding a particular grievance from arbitration, . . . only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.\\nId., 564 A.2d at 420-21 (quotations, citations, and brackets omitted).\\nArticle XVIII, section 18.1 of the 1994 CBA requires the parties to arbitrate any grievance \\\"arising from an alleged violation, misinterpretation or misapplication . of any provision of this Agreement except those excluded expressly.\\\" Thus, to be arbitrable, the parties' dispute must arise from the interpretation, application, or violation of an existing contract provision. Cf. Brampton Woolen Co. v. Local Union, 95 N.H. 255, 257, 61 A.2d 796, 797 (1948) (interpreting existing CBA provision regarding \\\"wages\\\" to include vacation pay). Arbitration cannot arise on the basis of an omitted term because an omitted term cannot be violated, misinterpreted, or misapplied.\\nAfter examining the CBA and the wage schedule, we find no language in the agreement that supports the PELRB's finding. As in previous CBAs, express language provides that each employee receives step increases on the employee's anniversary date. While the wage schedule indicates that it is \\\"effective 7/01/94,\\\" wage schedules in previous CBAs also had effective dates of July 1 of the respective year that the CBA became effective. The effective date of July 1, in the current and former CBAs, is consistent with the objective of providing raises to employees with July 1 anniversary dates.\\nIn addition, no language in the CBA indicates that employees obtain step increases at any time other than their anniversary dates, as defined in the CBA. The three new steps were intended to incorporate additional increases for employees who had reached the maximum wage step of existing labor grades. The one-time nature of a \\\"catch-up\\\" step increase would be a unique, substantial, and material change to any prior agreement between the parties, requiring specific contract language. In the absence of language in the CBA indicating otherwise, employees at the maximum step receive annual increases on their respective anniversary dates, just as other employees do.\\nTo achieve the SEA's desired result would require a new and explicit provision providing step increases at another date than is now specified in the CBA. While the SEA maintains that the parties negotiated and agreed to a \\\"catch up\\\" step increase on July 1, 1994, we can say with \\\"positive assurance\\\" that a dispute concerning the reformation of the CBA to include a term that was allegedly inadvertently omitted is not arbitrable under the arbitration clause. Cf. West Coast Tel. Co. v. Local U. No. 77, Int. Bro. of Elec. Wkrs., 431 F.2d 1219, 1221 (9th Cir. 1970).\\nReversed.\\nAll concurred.\"}"

nh/1801399.json

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+"{\"id\": \"1801399\", \"name\": \"Gregg v. Northern Railroad\", \"name_abbreviation\": \"Gregg v. Northern Railroad\", \"decision_date\": \"1893-06\", \"docket_number\": \"\", \"first_page\": 452, \"last_page\": \"456\", \"citations\": \"67 N.H. 452\", \"volume\": \"67\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:42:31.639729+00:00\", \"provenance\": \"CAP\", \"judges\": \"Carpenter and Chase, JJ., did not sit: the others concurred.\", \"parties\": \"Gregg v. Northern Railroad.\", \"head_matter\": \"Gregg v. Northern Railroad.\\nThe price of corporate stock at public sales which are sufficiently numerous to attract the attention of investors competent to investigate the question of its value, is ordinarily the best evidence of its market value.\\nIn ascertaining the value of railroad stock, taken by eminent domain, it is error to admit evidence of corporate mismanagement to show that its market value ought to have been greater, or to allow other elements of value to be added to the market price.\\nEvidence that New Hampshire railroad stock, owned by residents of Massachusetts, is taxable there, is not admissible to show that it has a higher market value in this state.\\nThe notoriety of many facts is so great, that the administration of justice requires the exclusion of evidence based on an assumption of their nonexistence.\\nAppeal, by the plaintiff, who dissented from a lease of tbe defendants\\u2019 railroad to the Boston & Maine Railroad for ninety-nine years from January 1, 1890, from an award of $82,500 as the value of his stock in the defendant corporation. The jury found its value to be $90,225. The lease referred to was at an annual rental equivalent to 5 per cent, on the capital stock for the first seven years and a half, and 6 per cent, thereafter. Subject to exception, the plaintiff introduced evidence tending to show that in October, 1887, the Concord Railroad Corporation offered to take a lease of the road for the same term at an annual rental equivalent to 6 per cent, on the capital stock, and that the offer was rejected.\\nAfter the introduction of evidence by the defendants of sales of their stock at the brokers\\u2019 board in Boston, the plaintiff, subject to exception, put in evidence the statute law of Massachusetts, to show that the defendants\\u2019 stock is taxable to owners thereof resident in that state.\\nWilliam L. Foster and Fdward B. S. Sanborn, for the defendants.\\nGreorge B. French and Bingham Mitchell, for the plaintiff.\", \"word_count\": \"2158\", \"char_count\": \"12163\", \"text\": \"Per Curiam.\\nThe question of fact to be tried was the market value of Northern Railroad stock on the first day of January, 1890 (State v. James, 58 N. H. 67, Atlantic, etc., Railroad v. State, 60 N. H. 133, 140, Low v. Railroad, 63 N. H. 557, 562), the day when Gregg's stock was taken by an exercise of the right of eminent domain. This power of purchase was exercised for the purpose of obviating Gregg's objection to a lease of the road to the Boston & Maine Railroad for ninety-nine years from that date. P. S., c. 156, ss. 28-37. It is conceded that the market value of the shares on that day depended largely upon the previous management of the company's affairs, including the contract for the lease. But it is claimed that evidence tending merely to show that with better management the shares would have been worth more on that day than they were then worth was competent. The question, however, was, not what they would or might have been worth at that time if the management had been better or worse, but what they were worth in consequence of the manner in which the affairs of the corporation had been managed, whether good or bad. A very important part of that management was the execution of the lease to the Boston & Maine for ninety-nine years from January 1, 1890. If Gregg had continued to hold his stock without objecting to the lease, lie would have held it subject to the lease, and in his hands its value would have been affected by the lease, as it now is and will continue to be affected in other hands. January 1, 1890, the effect of the lease on its value was inevitable. In this state of things, evidence was received which tended to show that on that day the stock ought to have been worth more than it was worth, \\u2014 that by bad management the road had been leased at a lower rental than the Concord offered more than three years before. This was an alteration of the question to be tried. If property were taxed not at its market value (i. <?., the price obtainable at a fair sale), but at what it would have been worth if it had received more skilful management than its owners had bestowed upon it, the owners would be subject to the form of injustice which the purchasers suffered in this case. The jury were asked to compel the purchasers to pay what the stock would have been worth if the offer of the Concord company had been accepted, and to give the vendor more than he could have obtained by a voluntary sale in a fair market. The lease to the Boston & Maine was as much an element and as controlling an element of the market value as if the sale of Gregg's shares had been voluntary. The involuntary character of his sale is immaterial.\\nThe general character of the evidence stated in the case, and the argument in support of its competency, show that Gregg's claim was that the market price, as shown by sales in Boston, was less than the market value, and that the Concord's offer was introduced to support this claim. Undoubtedly the question tried might have been such as to make the Concord's offer competent. But its competency depends not on a question that might have been tried and a use that might have been made of it, but on the question that was tried and the use that was made of it. It was evidently used to show that Gregg should have a higher price than he could have obtained if the sale had been voluntary for the highest price obtainable in a fair market.\\nEvidence of the tax law of Massachusetts is open to a similar-objection. The argument for the competency of this evidence is, that Massachusetts taxation of New Hampshire railroad stock owned by residents of Massachusetts placed them in a less favorable position than that occupied by owners, resident in New Hampshire, where property is not liable to double taxation. This is an unavoidable element of the market value, which is necessarily the same in both states. The argument for the admission of this evidence is based on the assumption that the market price in Massachusetts is less than in New Hampshire, and this-assumption is one of the unfair phases of the trial. The law is not always able to do .justice; but it does not perpetrate flagrant injustice upon an assumption of that kind. Whether Northern Railroad stock has a Massachusetts market value and a different New Hampshire market value is a question of fact and not of, law. But there are many facts so notorious and indisputable that evidence based on an assumption contrary to them, and requiring-the other party to prove them, is properly excluded as calculated merely to waste time, increase the public and private expense of the trial, and throw the administration of justice into confusion. From the necessity of the case, the law distinguishes between questions of fact which can fairly be contested for a purpose of 1 justice, and questions which cannot be -fairly contested for such a purpose. To deny this distinction would be to refuse to exercise common sense in a work in which that kind of sense is as necessary as in any other, and to sacrifice legal rights to a mode of reasoning too refined and technical for the practical purpose of the law. The objection to the admission of the Massachusetts law of taxation, and of other evidence in this case, is not met by the power of setting aside the verdict if contrary to the evidence.. Cole v. Boardman, 63 N. H. 580, 583. The value of the stock fixed by the verdict may not have been so excessive as to justify a finding that the verdict is contrary to the evidence, while there may have been error in the admission of evidence that necessarily rendered the trial unfair. When such evidence is admitted, as it-apparently was in this case, on an erroneous assumption that it cannot be legally excluded, the law requires a correction of the error.\\nThe tax law of Massachusetts and other evidence was admitted, apparently because it was assumed by the court that as matter of' law the plaintiff was entitled to its admission, and that if it were rejected, and the verdict did not satisfy the plaintiff, it would be set aside. On that or some other untenable ground, evidence was admitted that was useless for any legal purpose. It tended, and tended only, to mislead the jury and produce an unjust verdict. Whatever the ground on which it was admitted, the unfair ness it imparted to the trial, and the wrong it strongly tended to accomplish, are so evident that there should be a new trial.\\n\\\"An auction sale of stocks . . . at the public exchange in-a large commercial city affords the truest standard of the prices at which they are estimated in the market.\\\" Kent v. Whitney, 9 Allen 62, 63. In general, the price paid at such sales and at the brokers' board in Boston for Northern Railroad stock and various other New Hampshire stocks, there sold often enough to attract the attention of investors competent to investigate the question of value, may well be taken as the market value. The market value of property that has no regular market price because not often sold in a public market of that kind, may require evidence of all the elements that would be considered by competent bidders in such a market. In this case evidence of those elements was added to evidence of a regular market price in a manner and to an extent which we cannot suppose would have been allowed if an erroneous view of the law had not been taken. Much of this objectionable evidence would hardly have been admitted, if it had been understood that it could have been rejected as confusing and misleading.\\nIn Low v. Railroad, 63 N. H. 557, a case of eminent domain, the verdict was set aside for error in the instructions on the question of value. The error was not in a wrong statement of the law, but in the manner of presenting a view of the evidence. It is there said (jp. 562), \\u2014 \\\" The instructions given on this point in this case were misleading. Details of circumstantial evidence were so enlarged upon and emphasized as to tend strongly to withdraw attention from the question of market value, and to present an exaggerated and erroneous view of the damages. By persons familiar with the law of the subject, the charge could, perhaps, be construed to authorize no departure from the measure prescribed by the fair market value of the land. But others would be likely to understand from the instructions that the damages could be expanded beyond that value by adding to its amount some of the elements comprised in it.\\\"\\nIn the present case, the error was in admitting evidence which might be useful under some circumstances, but which in this case was useless for any other purpose than to induce the jury to expand the market value by adding to it some of the elements comprised in it.\\nEvidence was admissible to show that the regular market price was lower than the market value, \\u2014 that by management important elements of value were concealed from bidders in order to depress the price. But when property has such a regular market price as Northern Railroad stock, and when the improbability is so great that material elements of value were concealed from the class of expert investors who make a business of ascertaining the value of such stock as the Northern, it is a duty to see that injus tice is not done by adding to the market price elements of value naturally included in it. And this duty is to be discharged not only by instructions, hut also by excluding evidence that evidently can have no other effect than to render the trial unfair. Evidence is constantly excluded, not because as a matter of law it can have no bearing on the issue, but because as a matter of fact it is under the circumstances of the case too remote in point of time or place, or too insignificant in other respects, to have any proper weight, or to have any other than a confusing and misleading effect. State v. Hastings, 53 N. H. 452, 461; Tilton v. Bible Society, 60 N. H. 377, 384; Amoskeag Mfg. Co. v. Worcester, 60 N. H. 522, 525; Alexander v. United States, 138 U. S. 353, 356. Some of the evidence to which objection was taken should have been excluded on this ground.\\nVerdict set aside.\\nCarpenter and Chase, JJ., did not sit: the others concurred.\\nSee foot-note on page 80.\"}"

nh/1805667.json

@@ -0,0 +1 @@
+"{\"id\": \"1805667\", \"name\": \"State v. Shaw\", \"name_abbreviation\": \"State v. Shaw\", \"decision_date\": \"1877-03\", \"docket_number\": \"\", \"first_page\": 74, \"last_page\": \"75\", \"citations\": \"58 N.H. 74\", \"volume\": \"58\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:07:05.422933+00:00\", \"provenance\": \"CAP\", \"judges\": \"Allen, J., did not sit.\", \"parties\": \"State v. Shaw.\", \"head_matter\": \"State v. Shaw.\\nIn. an indictment the printed words, \\u201c did * * * keep for sale,\\u201d changed by a pen to \\u201c did * * * ksep-for-^sale,\\u201d may be shown by the context to be \\u201c did sale,\\u201d and to mean \\u201c did sell,\\u201d and may be so read.\\nIndictment, charging that the respondent, \\u201c not being an agent, * * * did then and there unlawfully, knowingly, and criminally keep-for sale, one half pint of spirituous liquor to one John C. Sweat, contrary to the form\\u201d &c.\\nTo this indictment the respondent had pleaded not guilty, at a previous term of court. At the September term, 1876, after the indictment was read to the jury, counsel for the state moved to amend by inserting after the word \\u201c-sale,\\u201d and before the word \\u201c one,\\u201d the word sell. The respondent objected, and moved that the indictment be quashed. The court permitted the amendment and denied the motion to quash, and the respondent excepted. The respondent moved to set aside a verdict of guilty.\\nWheeler, for the respondent.\\nIt is a fixed and fundamental rule respecting indictments, that the charge must contain a certain description of the crime of which the defendant is accused. 1 Chitty Cr. Law 169. This indictment does not contain such a description, and is therefore bad. The motion to amend is not within the statute of amendments. State v. Goodrich, 46 N. H. 186 ; State v. Lyon, 47 N. H. 416.\\nShackford, solicitor, for the state.\", \"word_count\": \"605\", \"char_count\": \"3496\", \"text\": \"Foster, J.\\nThe defect in this indictment was the result of a mere clerical mistake. Evidently, in a hasty alteration of the printed blank, the writer's pen was pushed a little farther than was intended, across the \\\" s.\\\" The draftsman evidently did not notice that the printed word, which his pen ran against was \\\"sale,\\\" and not sell; consequently the \\\" s\\\" is to be retained, and not omitted. The right verb being used, the meaning is clearly conveyed by the present tense \\\"did,\\\" and the remainder of the context shows that the past tense was intended. It is a mere grammatical error; and mala grammatica non vitiat chartam. Broom Leg. Max. 535; Wharton Cr. Law 199. The amendment was unnecessary. No one could be deceived, misled, or left in doubt by this mistake. In indictments, as well as in declarations, only the second degree of certainty is required, that is, certainty to a certain intent in general, as it is usually expressed \\u2014 5 Co. Rep. 121. See State v. Whitney, 15 Vt. 298, where the omission of the auxiliary verb \\\" did,\\\" which should have been joined with the words \\\" sell and dispose of,\\\" was supplied by intendment. And see Ailstock's Case, 3 Grat. 650.\\n\\\" If the sense appear, nice exceptions ought not to be regarded,\\\" said Lord Ellenborough, in The King v. Stevens, 5 East. 260. See, also, The King v. Airey, 2 East. 38, 84; 1 Ch. Cr. Law 172.\\nTwo hundred years ago, Sir Matthew Hale lamented the existence of an undue regard for the \\\" unseemly niceties\\\" \\\" required in points of indictments,\\\" and the \\\" over easy ear given to exceptions, whereby more offenders escape than by their own innocence, to the shame of the government, to the encouragement of villainy, and to the dishonour of God.\\\" Hale P. C. 193; Step. Cr. L. 182-185.\\nThese \\\" great strictnesses\\\" were enforced in favor of life, in the times when no less than a hundred and sixty offences were declared by act of parliament to be -worthy of death. 4 Bl. Com. 18. In the present age these \\\" unseemly niceties\\\" do not seem to be required.\\nThe motion to quash was properly denied.\\nExceptions overruled.\\nAllen, J., did not sit.\"}"

nh/1805703.json

@@ -0,0 +1 @@
+"{\"id\": \"1805703\", \"name\": \"Noyes & a. v. Blodgett & a.\", \"name_abbreviation\": \"Noyes v. Blodgett\", \"decision_date\": \"1878-08\", \"docket_number\": \"\", \"first_page\": 502, \"last_page\": \"502\", \"citations\": \"58 N.H. 502\", \"volume\": \"58\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:07:05.422933+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Noyes & a. v. Blodgett & a.\", \"head_matter\": \"Noyes & a. v. Blodgett & a.\\nIn actions for deceit in the sale of chattels, the measure of damages is the difference between the actual value of the article sold and its value as represented, together with such other damages as could be reasonably-anticipated by the parties as likely to be caused by the fraud.\\nIf by reasonable care the vendee could have avoided the injury resulting from the fraud, he cannot maintain an action to recover damages therefor.\\nCase, for deceit in the sale of apples delivered to the plaintiffs at depot in Exeter, and by them shipped to Canada.\\nOn the question of damages, the jury, against the defendants\\u2019 objection, were instructed that they might consider the loss directly resulting from the inferior quality of the apples, and all expense, trouble, and annoyance, which were the necessary consequence of the fraud practised by the defendants.\\nVerdict for the plaintiff, and motion for a new trial.\\nRay, Drew & Jordan, for the defendants.\\nAldrich & Shurtleff, for the plaintiffs.\", \"word_count\": \"455\", \"char_count\": \"2580\", \"text\": \"Stanley, J.\\nThe measure of damages on a breach of warranty in the sale of personal property, where it remains in the possession of the purchaser, is the difference between the value of the property as it would be if the warranty or representation were true and the actual value at the time of the sale. Fisk v. Hicks, 31 N. H. 535; Carr v. Moore, 41 N. H. 131; Page v. Parker, 43 N. H. 363, 368; Stiles v. White, 11 Met. 356; Armstrong v. Percy, 5 Wend. 535; Bigelow on Fraud 508; Field on Dam. 256, s. 272. To this, however, there is frequently added such incidental losses to the plaintiff as naturally and actually result from the fraud or breach of warranty, or, as stated by Benjamin, such damages as were the natural and ordinary result of such fraudulent representations \\u2014 Benjamin on Sales, 1 Am. ed., 789, 790; Bowman v. Parker, 40 Vt. 410; or, as the rule is sometimes stated, the wrong-doer must answer for those results injurious to another which must be presumed to have been within his contemplation at the time of the fraud. Crater v. Binninger, 33 N. J. L. 513; Faris v. Lewis, 2 B. Mon. 375; Bigelow on Fraud 506. The rule is, however, subject to the qualification, that it is the duty of the purchaser to use reasonable care to prevent the consequences of the injury, and he can only recover such damages as could not, by such care, have been avoided. Field on Dam. 130; Mayne on Dam. 49; 1 Hill, on Torts 17. The instructions to which exception was taken were not in accordance with these views, and for this reason were erro-\\nVerdict set aside.\"}"

nh/1813776.json

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+"{\"id\": \"1813776\", \"name\": \"Dame, Adm'x, v. Laconia Car Company Works\", \"name_abbreviation\": \"Dame v. Laconia Car Co. Works\", \"decision_date\": \"1902-06-03\", \"docket_number\": \"\", \"first_page\": 407, \"last_page\": \"408\", \"citations\": \"71 N.H. 407\", \"volume\": \"71\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:08:01.787610+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Dame, Adm'x, v. Laconia Car Company Works.\", \"head_matter\": \"Belknap,\\nJune 3, 1902.\\nDame, Adm'x, v. Laconia Car Company Works.\\nWhere the canse of a death for which recovery is sought in an action for negligence is upon the plaintiff\\u2019s evidence left wholly to conjecture, a verdict for the defendant is properly ordered.\\nIt is contrary to the established practice of the court to consider questions of law raised by a reserved case when no practical result would follow their decision.\\nWhere a verdict is ordered for the defendant because the plaintiff\\u2019s evidence is insufficient to authorize the verdict of a jury in his favor, the latter is afforded adequate relief by a petition for a new trial upon the discovery of evidence which supplies the requisite proof.\\nCase, for negligently causing the death of the plaintiff\\u2019s decedent. At the close of the plaintiff\\u2019s evidence a verdict was directed for the defendants, and the plaintiff excepted. Transferred from the November term, 1901, of the superior court by Peaslee, J.\\nShannon & Young and E. A. & C. B. Hibbard, for the plaintiff.\\nJewell, Owen & Veazey and Frank S. Streeter, for the defendants.\", \"word_count\": \"625\", \"char_count\": \"3487\", \"text\": \"Blodgett, C. J.\\nThe facts appearing in the case disclose no error in the direction of a verdict for the defendants. In any permissible view of the evidence, the plaintiff leaves the cause of her intestate's death wholly conjectural. Upon this vital point it is simply shown that he was found lying dead in a passway between the defendants' office and one of their shops; that a heavy ladder, which had been put up against the shop some hours before and left unfastened, with its foot projecting into the passway some seven or eight feet, was lying on the ground near his body; that when he was so discovered \\\" it was windy and gusty \\\" and had been for an hour or so preceding, so that the ladder might have blown down upon him and caused Ids death; and \\\" that it is dangerous to leave ladders as this one was, because of their likelihood of being blown down.\\\"\\nThis evidence manifestly does not afford the legitimate medium of proof recognized by the law, and which the plaintiff has the burden of establisMng. United States v. Ross, 92 U. S. 281, 283, 284. \\\" The law demands proof and not mere surmises.\\\" Bond v. Smith, 113 N. Y. 378, 385. Merely because the intestate was found lyMg dead in proximity to the ladder, it is not to be inferred as a conclusion of fact or as a presumption of law that the ladder caused his death by blowmg down upon him, or in any other way; and a fortiori, in the absence of any evidence of physical injury, or as to the condition of his health, and when his death may have resulted from any one of several well-recognized and not infrequent natural causes. United States v. Ross and Bond v. Smith, supra; Deschenes v. Railroad, 69 N. H. 285, 288; Horan v. Byrnes, 70 N. H. 531, 533; White v. Dakin, 70 N. H. 632. There is consequently no occasion to now consider the relation in which the deceased stood to the defendants, or whether he was killed by the negligence of a fellow-servant; and it would be contrary to the established practice of the court to do so. See State v. Morin, 65 N. H. 667, 668, and cases cited; Winnipiseogee etc. Co. v. Gilford, 66 N. H. 621; State v. Lewis, 66 N. H. 623.\\nIf the plaintiff can supply the-requisite proof as to the cause of her intestate's death, and if justice requires it should be done, she is afforded an adequate remedy for relief by a petition for a new trial. P. S., c. 230, s. 1.\\nHxception overruled.\\nAll concurred.\"}"

nh/1815855.json

@@ -0,0 +1 @@
+"{\"id\": \"1815855\", \"name\": \"Hunt & a. v. Coggin\", \"name_abbreviation\": \"Hunt v. Coggin\", \"decision_date\": \"1889-12\", \"docket_number\": \"\", \"first_page\": 140, \"last_page\": \"141\", \"citations\": \"66 N.H. 140\", \"volume\": \"66\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:54:36.730086+00:00\", \"provenance\": \"CAP\", \"judges\": \"Clark, J., did not sit; the others concurred.\", \"parties\": \"Hunt & a. v. Coggin.\", \"head_matter\": \"Hunt & a. v. Coggin.\\nIn an action upon e. 91, Laws of 1887, the plaintiff must show that a purpose to annoy him was the defendant\\u2019s controlling motive in maintaining the structure.\\nCase, upon c. 91, Laws of 1887, for maintaining a structure in the nature of a fence unnecessarily exceeding five feet in height, for the purpose of annoying the plaintiffs, owners of adjoining property.\\nThe structure complained of was about twenty-five feet long and \\u25a0eleven feet high, and was erected eight or ten years ago. The plaintiffs complained that it injured them by excluding the light \\u25a0and air and obstructing the view from the windows of their building, and was maintained by the defendant for the purpose of annoying and injuring them. The defendant claimed that it was maintained and used as a signboard for his furniture store, and as a support against which to pile furniture as it was unloaded, and that it was useful and necessary for that purpose.\\nT.he court instructed the jury that the plaintiffs,to maintain the action, must show that the fence was unnecessarily maintained at a height exceeding five feet for the purpose of annoying the plaintiffs. \\u201cA person has the right to use his premises reasonably for -any lawful purpose, though it may occasion inconvenience to his neighbor. The fact that the fence or structure occasioned annoyance to the plaintiffs did not of itself make the defendant liable. It must have been maintained for the purpose of annoying the plaintiffs, and not because it was necessary or useful to the defendant. It is a question of motive. If the defendant maintained the fence for no other purpose than annoying the plaintiffs, it was a nuisance, and he is liable. If it was maintained for his own benefit, he is not liable. If he would not have maintained the fence except to annoy the plaintiffs, the fence was a nuisance. If you find that it was maintained solely for the purpose of annoying the plaintiffs, your verdict will be guilty. If you find that the purpose to annoy was not the controlling motive without which the fence would not have been maintained, then your verdict will be not guilty.\\u201d The plaintiffs excepted to the instructions. The jury returned a verdict for the defendant, which the plaintiffs moved to set aside.\\nHenry B. Atherton, for the plaintiffs.\\nG. B. French and C. W. Hoitt, for the defendant.\", \"word_count\": \"582\", \"char_count\": \"3371\", \"text\": \"Bingham, J.\\nCase on c. 91, Laws of 1887. The structure complained of was about twenty' feet long, eleven feet high, and was erected some ten years ago. The plaintiffs complained that it excluded the light and air and obstructed their view, and was maintained by the defendant for the purpose of annoying them. The defendant claimed that he maintained the structure as a signboard for his furniture store and as a support against which to pile his furniture, and that it was useful to him in these ways.\\nThe court charged in substance that the defendant was liable if he w'as actuated by two motives, one of annoyance and the other of utility, if the former was the controlling one. The charge was. sufficiently favorable to the plaintiffs. Whether the defendant was entitled to a more favorable charge is a question that does not arise in this case. Watertown v. Mayo, 109 Mass. 319; Rideout v. Knox, 148 Mass. 368, 373; Smith v. Morse, id. 407.\\nExceptions overruled.\\nClark, J., did not sit; the others concurred.\"}"

nh/1815931.json

@@ -0,0 +1 @@
+"{\"id\": \"1815931\", \"name\": \"Hart & a. v. Lockwood\", \"name_abbreviation\": \"Hart v. Lockwood\", \"decision_date\": \"1891-06\", \"docket_number\": \"\", \"first_page\": 541, \"last_page\": \"542\", \"citations\": \"66 N.H. 541\", \"volume\": \"66\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:54:36.730086+00:00\", \"provenance\": \"CAP\", \"judges\": \"Clark, J., did not sit: the others concurred.\", \"parties\": \"Hart & a. v. Lockwood.\", \"head_matter\": \"Hart & a. v. Lockwood.\\nIn an action for injuries to the plaintiff\\u2019s horse by negligent driving, the burden of proof is not cast upon the defendant by evidence that the horse was delivered to the defendant uninjured, and remained in his possession until returned to the plaintiffs injured.\\nThe exclusion of evidence which might properly be rejected for remoteness is not open to exception.\\nCase, for driving the plaintiffs\\u2019 horse a greater distance than he was hired for, and for injuries to the horse caused by the defendant\\u2019s negligence. Trial by the court, and verdict for the defendant.\\nThe declaration alleged that the horse was let to one Parker. A ground of defence was, that the defendant had no interest in hiring and no control over the horse, but merely rode with Parker on his invitation. To rebut this, the plaintiffs offered to show that Parker had been engaged in a conspiracy to defraud, and had obtained goods by false pretences, and that the defendant knew of the commission of these offences. The evidence was excluded, and the plaintiffs excepted.\\nParker hired the horse to drive to Strafford, and drove twelve miles further, to Rochester, where he took the train, and at his request the defendant drove the horse back to Laconia. The plaintiffs claimed that the defendant, inasmuch as he knew the horse was hired to go only to Strafford, was, as matter of law, liable to them for the use of the horse in driving back the extra twelve miles from Rochester to Strafford. The court held otherwise, and the plaintiffs excepted.\\nThe plaintiffs introduced evidence tending to show, and claimed to have proved, that the horse was uninjured when the defendant started on the return from Rochester, and thereupon contended that the burden of proof was upon the defendant to show that the horse was not injured by his negligence. The court ruled that the burden of proof remained on the plaintiffs, and they excepted.\\nF. M. Beckford, for the plaintiffs.\\nW. S. Peaslee, for the defendant.\", \"word_count\": \"493\", \"char_count\": \"2891\", \"text\": \"Carpenter, J.\\nIf evidence tending to show that Parker had committed crimes, and that the defendant knew of their commission, might have been received without legal error, it was so remote that no exception lies for its exclusion. Cook v. New Durham, 64 N. H. 419.\\nThe ruling that the burden of proof remained on the plaintiffs was correct. Proof that the horse was uninjured when at Rochester, and was in the possession and under the control of the defendant until he returned it in an injured condition to the plaintiffs, was merely evidence to be weighed upon the question whether the defendant negligently caused the injury. Eastman v. Gould, 63 N. H. 89.\\nIf the plaintiffs are entitled to payment for the defendant's use of the horse in driving from Rochester to Strafford, they cannot recover it in this form of action.\\nExceptions overruled.\\nClark, J., did not sit: the others concurred.\"}"

nh/1818010.json

@@ -0,0 +1 @@
+"{\"id\": \"1818010\", \"name\": \"Jewell v. Swain\", \"name_abbreviation\": \"Jewell v. Swain\", \"decision_date\": \"1876-08-11\", \"docket_number\": \"\", \"first_page\": 506, \"last_page\": \"508\", \"citations\": \"57 N.H. 506\", \"volume\": \"57\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Superior Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:04:13.544111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Cushing, C. J., and Ladd, J., concurred.\", \"parties\": \"Jewell v. Swain.\", \"head_matter\": \"Jewell v. Swain.\\nAug. 11, 1876.\\nExcessive distraint.\\nA collector of taxes, in distraining, must exercise a sound discretion as to the property to be seized. He is bound to select such articles as will best facilitate the satisfaction of the tax, with the least expense and inconvenience to the tax-payer. Whether such discretion is exercised is a question of fact to be found by the jury under all the circumstances of the case.\\nFrom Grafton Circuit Court.\\nCase, for an excessive and illegal distress. This action was referred, under the act of 1874, to a referee, who found in favor of the defendant, and who, at the plaintiff\\u2019s request, reported the following facts found proved by him:\\n\\u201c The defendant was collector of taxes for the town of Warren, in the county of Grafton, for the year 1873, duly qualified ; and the selectmen committed to him a list of taxes for the year 1873, with a warrant for the collection of the same. It was admitted that the list and warrant were properly signed by the selectmen. Said list contained a tax against the plaintiff for the sum of $51.03. The plaintiff paid portions of said tax during the year to the defendant. On the 27th of February, 1874, there was a balance of said tax due from the plaintiff to the amount of $34.03 and .96 interest. On that day the plaintiff left his team (consisting of a horse, sleigh, harness, and two sleigh robes) hitched at the railroad station in Warren, and while there, and at about eleven o\\u2019clock in the forenoon, the defendant seized said team, by virtue of said warrant, to enforce the payment of the balance of said tax. He safely kept said team until the latter part of said day, when the plaintiff paid the balance of said tax, and took the team into his possession. It appeared further in evidence, that the defendant gave the plaintiff due notice of said tax. The plaintiff\\u2019s testimony went to show, that before the taking of the team he pointed out sufficient other property upon which the defendant could make distress; but this the defendant denied, claiming that he heard nothing about any other property until after he had taken the team. The referee found the horse to be of the value of $150, harness $16, sleigh $13, and robes $4. The referee further found that the plaintiff had other property than the team, which might have been seized to enforce the payment of said tax, interest, and costs. The horse taken was more than sufficient to satisfy said tax, interest, and costs of sale.\\u201d\\nUpon the return of the report the defendant moved for judgment on the report in his favor for costs, which motion the court granted ; and the plaintiff excepted, and tendered this bill of exceptions, which was allowed by Stanley, J., O. C.\\nW. A. Flanders, for the plaintiff.\\nG. F. Putnam, for the defendant.\", \"word_count\": \"991\", \"char_count\": \"5546\", \"text\": \"Smith, J.\\nIn Thompson v. Currier, 24 N. H. 239, it is said that \\\" No principle of the law is better settled than that a distressi must not be excessive ; though the collector will not be liable to an action on this ground, unless the taking is obviously excessive, \\u2014 as, if a man distrain two oxen for twelve pence, or a horse or an ox for a small sum, where a sheep or pig might be taken, because he might have taken a beast of less value. 2 Bac. Ab. 352, Distress, E.; 2 Steph. N. P. 1967; Saund. Pl. and Ev. 443.\\\"\\nThe defendant distrained property, exclusive of the horse, of the value of $33, which was plainly insufficient to satisfy the tax due, with interest thereon. The value of the horse alone ($150) would have been sufficient to satisfy the tax and costs. Was the distress excessive ?\\n- An officer is to exercise a sound discretion in respect to the amount to be seized. If the quantity seized by a sheriff will, in all reasonable probability, be sufficient to satisfy an execution placed in his hands for that purpose, he will not be liable, although it prove insufficient. So, if it far exceed a sufficient amount, he will not be liable for an excessive levy. Commonwealth v. Lightfoot, 7 B. Mon. 298. Did the officer exercise a sound discretion in the distraint which he made ? This is to be determined by all the circumstances of the case. Where different articles of property are alike accessible to him, he is bound to select such as will best facilitate the satisfaction of the tax, with the least expense and inconvenience to the tax-payer. The referee reports that the testimony was conflicting upon the point whether the plaintiff' pointed out other property upon which the defendant could make distress. He does not find how this was, nor report to us such facts as will enable us to find as matter of fact how this was. The referee, however, finds that the plaintiff had other property which might have been seized to enforce payment of the tax ; but nothing appears from which we can find that the defendant did not use a sound discretion in seizing the horse, with the other property of the plaintiff. He has found an award in favor of the defendant, which he could not have done unless he had found that what the defendant did in seizing the property was a reasonable thing to be done under the circumstances of this case. He may have found that it would have been an unreasonable act in the defendant to take the horse and leave the other articles. It is not for us to say, as matter of law, that what the defendant did was unreasonable. It is purely a question of fact, which the referee has found in favor of the defendant, and his finding is conclusive upon us.\\nCushing, C. J., and Ladd, J., concurred.\\nExceptions overruled.\"}"

nh/2290782.json

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+"{\"id\": \"2290782\", \"name\": \"The State of New Hampshire v. Gary Farrow\", \"name_abbreviation\": \"State v. Farrow\", \"decision_date\": \"1995-11-28\", \"docket_number\": \"No. 94-277\", \"first_page\": 473, \"last_page\": \"477\", \"citations\": \"140 N.H. 473\", \"volume\": \"140\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:14:12.365352+00:00\", \"provenance\": \"CAP\", \"judges\": \"Johnson and Broderick, jj., did not participate; BATCHELDER, J., retired, participated by special assignment under RSA 490:3; all who participated concurred.\", \"parties\": \"The State of New Hampshire v. Gary Farrow\", \"head_matter\": \"Merrimack\\nNo. 94-277\\nThe State of New Hampshire v. Gary Farrow\\nNovember 28, 1995\\nJeffrey R. Howard, attorney general (.Ann M. Rice, assistant attorney general, on the brief), for the State.\\nDavid M. Rothstein, assistant appellate defender, of Concord, by brief for the defendant.\", \"word_count\": \"1497\", \"char_count\": \"9012\", \"text\": \"PER CURIAM.\\nThe defendant, Gary Farrow, is serving a life sentence without possibility of parole following his conviction for first degree murder in 1976. See State v. Farrow, 118 N.H. 296, 299, 386 A.2d 808, 810 (1978); RSA 630:1-a, III (Supp. 1977). This appeal arises from the Superior Court's (Smukler, J.) dismissal of a petition to suspend the defendant's sentence. We affirm.\\nThe defendant argues that, based upon statutory rules of construction, the trial court erred as a matter of law in ruling that the 1992 amendment to RSA 651:20,1(a) (Supp. 1993) (effective January 1, 1993) (amended Laws 1994, 129:1) did not allow persons convicted of first degree murder to petition for sentence suspension. He contends that although the statutory language in question is clear and unambiguous, the trial court went beyond its plain meaning and improperly considered legislative history and purpose in deciding whether to dismiss his petition.\\n\\\"On questions of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.\\\" State v. Woods, 139 N.H. 399, 400, 654 A.2d 960, 961 (1995) (quotation omitted). From January 1, 1993, until July 22, 1994, RSA 651:20, 1(a) provided that \\\"[a]ny person sentenced for any of the . . . violent crimes against a person listed in RSA 651:4-a shall not bring such petition to suspend sentence earlier than 4 years after commencement of said sentence nor more frequently than every 4 years thereafter.\\\" RSA 651:4-a (Supp. 1993) (amended Laws 1994, 394:2) permitted the victims or the families of victims of certain crimes to speak to the court prior to sentencing about \\\"the offense, the person responsible, and the need for restitution.\\\" First degree murder was among the crimes listed in RSA 651:4-a.\\nThe defendant argues that since first degree murder was listed in RSA 651:4-a, his petition for sentence suspension was lawfully before the trial court. At first glance, RSA 651:20, 1(a) could be interpreted in the manner suggested by the defendant. Such an interpretation, however, would render RSA 651:20, 1(a) in clear conflict with two other provisions of the criminal code, RSA 630:l-a, III (1986) and RSA 651:1, I (1986), both of which govern the sentencing of persons convicted of first degree murder.\\nUnder these circumstances, we will examine RSA 651:20, 1(a) not in isolation, but in the context of the overall statutory scheme. Opinion of the Justices (Solid Waste Disposal), 135 N.H. 543, 545, 608 A.2d 870, 872 (1992). \\\"[A]ll statutes upon the same subject-matter are to be considered in interpreting any one of them.\\\" Barksdale v. Town of Epsom, 136 N.H. 511, 515-16, 618 A.2d 814, 817 (1992) (quotation omitted). \\\"Where reasonably possible, statutes should be construed as consistent with each other.\\\" Appeal of Derry Educ. Assoc., 138 N.H. 69, 71, 635 A.2d 465, 466 (1993). \\\"When interpreting two statutes which deal with a similar subject matter, we will construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statute.\\\" Petition of Public Serv. Co. of N.H., 130 N.H. 265, 282, 539 A.2d 263, 273 (1988) (citation omitted).\\nWe begin our analysis by examining the purpose and effect of RSA 630:l-a, III, which provides that \\\"[a] person convicted of a murder in the first degree shall be sentenced to life imprisonment and shall not be eligible for parole at any time.\\\" This statute is intended to protect society by permanently isolating first degree murderers from the community. State v. Farrow, 118 N.H. at 302, 386 A.2d at 812. It also effectively eliminates judicial discretion in sentencing them. State v. Smith, 119 N.H. 674, 675-76, 406 A.2d 135, 135-36 (1979) (a sentencing court has neither the statutory authority nor inherent common law power to suspend any portion of a sentence imposed under RSA 630:l-a, III for first degree murder).\\nNext, we turn to RSA 651:1,1, which provides that the parole provisions in RSA chapter 651 \\\"govern the sentencing for every offense, whether defined within or outside the code, except as provided by RSA 630.\\\" It therefore exempts sentencing for first degree murder from RSA 651:20, 1(a). Smith, 119 N.H. at 675, 406 A.2d at 136 (the statutory authority of a court to suspend a sentence pursuant to RSA 651:20 \\\"is specifically made inapplicable to all sentences imposed under RSA 630:l-a, III by virtue of RSA 651:1\\\").\\nFinally, an examination of the legislative history and purpose of RSA 651:20,1(a) supports our conclusion. In 1992, the sexual assault laws were significantly revised in an effort to protect society from sexual offenders. See Laws 1992, eh. 254. As part of that effort, RSA 651:20, 1(a) was amended so that a person convicted of a violent crime against a person listed in RSA 651:4-a could not seek sentence suspension until four years after commencement of his sentence nor more frequently than every four years thereafter. The time frame for all other offenders to petition for sentence suspension remained at two years. This amendment was specifically designed to protect victims of violent crimes from having to repeatedly relive the trauma through more frequent sentence suspension hearings, see REPORT OF THE JOINT AD HOC COMMITTEE TO STUDY NEW HAMPSHIRE'S RAPE LAWS 6 (January 27, 1992), not to expand the scope of crimes for which sentence suspension is available.\\nWe conclude that when RSA 630:l-a, III, RSA 651:1, I, and RSA 651:20, 1(a) are read together, RSA 651:20, 1(a) cannot be construed to allow persons convicted of first degree murder to petition for sentence suspension. Such a construction, if adopted, would defeat the underlying legislative intent of these statutes by providing new opportunities for first degree murderers to return to society. See Quality Carpets v. Carter, 133 N.H. 887, 889, 587 A.2d 254, 255 (1991) (statutes construed to effectuate their evident purpose). \\\"Our task is to construe the criminal code provisions according to the fair import of their terms and to promote justice.\\\" State v. Harper, 126 N.H. 815, 818, 498 A.2d 310, 313 (1985) (citation omitted); see RSA 625:3 (1986). This court will avoid construing statutes in a manner that would \\\"produce an unjust and seemingly illogical result.\\\" State v. Roger M., 121 N.H. 19, 22, 424 A.2d 1139, 1141 (1981).\\nThe same result is reached based upon the rule of statutory construction which provides that \\\"where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the latter will be regarded as an exception to the general enactment where the two conflict.\\\" State v. Bell, 125 N.H. 425, 432, 480 A.2d 906, 911 (1984). On the one hand, RSA 651:20, 1(a) confers general discretion upon a sentencing court to suspend a sentence. RSA 630:l-a, III and RSA 651:1, I, on the other hand, clearly and specifically limit the court's authority in sentencing first degree murderers. Because RSA 630:l-a, III and RSA 651:1, I, provide specific exceptions to the more general rule found in RSA 651:20, 1(a), they will control. See State v. Dean, 115 N.H. 520, 523, 345 A.2d 408, 411 (1975) (\\\"the exercise of the judicial privilege of suspension can be withdrawn by statutory language expressing a clear legislative intent that a sentence is to be mandatorily imposed\\\").\\nWe also reject the defendant's argument that RSA 651:20, 1(a) must govern because it was enacted more recently than RSA 630:l-a, III and RSA 651:1, I. In support of this argument, the defendant cites Petition of Public Service Co. of New Hampshire, which provides that \\\"[w]hen a conflict exists between two statutes, the later statute will control, especially when the later statute deals with a subject in a specific way and the earlier enactment treats that subject in a general fashion.\\\" 130 N.H. at 283, 539 A.2d at 274 (quotation omitted). RSA 651:20,1(a), as we have already discussed, is the more general statute. Where, as here, the application of the rule would defeat the legislative intent, it will not be dispositive of the question presented.\\nIn conclusion, we note that the legislature substantially amended RSA 651:20, 1(a), effective July 22, 1994, so that a petition to suspend sentence cannot be brought until a defendant has served at least 4 years or two-thirds of his minimum sentence, whichever is greater. The amendment also eliminated any reference to the crimes listed in RSA 651:4-a. See Laws 1994, 129:1.\\nAffirmed.\\nJohnson and Broderick, jj., did not participate; BATCHELDER, J., retired, participated by special assignment under RSA 490:3; all who participated concurred.\"}"

nh/2294644.json

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+"{\"id\": \"2294644\", \"name\": \"The State of New Hampshire v. Bryan Brown\", \"name_abbreviation\": \"State v. Brown\", \"decision_date\": \"1994-07-11\", \"docket_number\": \"No. 93-010\", \"first_page\": 649, \"last_page\": \"654\", \"citations\": \"138 N.H. 649\", \"volume\": \"138\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:31:43.353430+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"The State of New Hampshire v. Bryan Brown\", \"head_matter\": \"Strafford\\nNo. 93-010\\nThe State of New Hampshire v. Bryan Brown\\nJuly 11, 1994\\nJeffrey R. Howard, attorney general (John A. Curran, assistant attorney general, on the brief), by brief for the State.\\nJames E. Duggan, chief appellate defender, of Concord, by brief for the defendant.\", \"word_count\": \"1540\", \"char_count\": \"9375\", \"text\": \"HORTON J.\\nThe defendant, Bryan Brown, was convicted after a jury trial in Superior Court (Perkins, J.) of two counts of aggravated felonious sexual assault, RSA 632-A:2, XI (1986), and two counts of felonious sexual assault, RSA 632-A:3, III (1986). On appeal, the defendant argues that the trial court erred by: (1) denying his post-trial motion to dismiss the indictments as unconstitutionally duplicitous under State v. Patch, 135 N.H. 127, 599 A.2d 1243 (1991); and (2) allowing only the prosecutor to question the then seven-year-old victim concerning her competency. We affirm.\\nOn November 18,1991, the defendant was convicted of two counts of aggravated felonious sexual assault and two counts of felonious sexual assault. The defendant did not object at trial to the indictments. On December 11,1991, this court decided State v. Patch, 135 N.H. 127, 599 A.2d 1243 (1991), holding that an indictment charging one count of felonious sexual assault was unconstitutionally duplicitous because it alleged a \\\"course of conduct involving several inci dents of intentionally touching\\\" over a six-month period. On December 16, 1991, twenty-eight days after his conviction, the defendant moved for the first time to dismiss his indictments because each charged a course of conduct. The trial court denied the motion, finding that it was untimely, improperly framed, and incorrectly preserved. Moreover, the court noted, \\\"[assuming arguendo that the multiple procedural bars to this motion could be overcome, this case can be distinguished from State v. Patch, 135 N.H. 127 (1991).\\\"\\nAt trial, the prosecutor began his examination of the seven-year-old victim by questioning her about her age, school, family, and residence. The defendant then asked the court to voir dire the witness to determine whether she was competent to testify. The prosecutor asked the witness the following questions in front of the jury:\\n\\\"[Prosecutor]: Now, do you know, before you sat down at the witness stand, do you remember I had you raise your right hand?\\n[Witness]: Yes.\\n[Prosecutor]: And I asked you about telling the truth and the whole truth?\\n[Witness]: Yes.\\n[Prosecutor]: Do you know what it means to tell the truth? [Witness]: Yes.\\n[Prosecutor]: Do you know the difference between a truth and a lie?\\n[Witness]: Yes.\\n[Prosecutor]: Could you explain it to me?\\n[Witness]: Well, truth is, I would say it's kind of cloudy out here tonight \\u2014 today.\\n[Prosecutor]: You'd say that was true?\\n[Witness]: Yes.\\n[Prosecutor]: Okay.\\n[Witness]: And a lie would be it's sunny out.\\n[Prosecutor]: Okay. And have you ever told a lie . . . ?\\n[Witness]: A few.\\n[Prosecutor]: A few? What kinds of things have you lied about?\\n[Witness]: Well, once I lied to my mother that I was going to go down to the store, but I didn't; I went far, far away up to my friend's house.\\n[Prosecutor]: And do you \\u2014 what happens to you when you\\u2014 when you lie?\\n[Witness]: Sometimes I get grounded, and sometimes I have to stay in the house for a week or so.\\n[Prosecutor]: So you get punished when you lie?\\n[Witness]: Yes.\\n[Prosecutor]: And you understand that it's very important for you to tell the truth here?\\n[Witness]: Yes.\\n[Prosecutor]: And do you know why we're here today? [Witness]: To \\u2014 well, you want us to tell the truth.\\n[Prosecutor]: Okay. And do you know what we're here to\\u2014 you're here to tell the truth about?\\n[Witness]: Bryan and me.\\n[Prosecutor]: Okay. And do you remember the \\u2014 what happened between Bryan and you?\\n[Witness]: Yes.\\n[Prosecutor]: Now, what happened between you and Bryan, where did it happen?\\n[Witness]: In my mom's bedroom.\\\"\\nAfter this colloquy, the prosecutor asked the court to find the witness competent. The defendant objected, requesting an opportunity to cross-examine the witness. The trial court overruled the defendant's objection, stating: \\\"Based on the answers she's given, I'm going to find her competent. But you can deal with it on cross.\\\"\\nOn appeal, the defendant first argues that the trial court erred in denying his motion to dismiss because the indictments against him were unconstitutionally duplicitous. He acknowledges that he failed to object to the indictments at trial. Nevertheless, he urges us to address the issue because he had no means of raising the issue under the law in effect at the time of his trial. State v. Monteiro, 110 N.H. 95, 97, 261 A.2d 269, 271 (1970).\\nThe general rule is that we will not consider grounds of objections not called to the court's attention at trial. State v. Johnson, 130 N.H. 578, 587, 547 A.2d 213, 218 (1988). We have recognized a limited exception to the preservation rule, however, when \\\"it would have been futile [for the defendant] to object\\\" under the law in effect at the time of trial. State v. Nelson, 105 N.H. 184, 190, 196 A.2d 52, 57 (1963), cert. denied, 377 U.S. 1001 (1964). The defendant contends that his case falls squarely within the exception because pr e-Patch caselaw made it futile for him to object to these indictments on the basis of unconstitutional duplicity. We disagree.\\nPrior to our decision in Patch, we recognized that an indictment is unconstitutionally duplicitous if it charges more than one offense in one count. See, e.g., State v. Wright, 126 N.H. 643, 646, 496 A.2d 702, 703 (1985). We had not addressed, however, whether the course of conduct language at issue in Patch survived constitutional scrutiny. Because the issue was unresolved under the law in effect at the time of the defendant's trial, he was not precluded from making a timely objection to the indictments. Therefore, we decline to address whether the indictments are unconstitutional under Patch.\\nThe defendant next argues that he was prejudiced and denied due process by the trial court's decision to allow only the prosecutor to voir dire the seven-year-old victim as to her competency.\\nA witness is presumed competent to testify, see N.H. R. Ev. 601(a), unless the trial court finds that the witness \\\"lacks sufficient capacity to observe, remember and narrate as well as understand the duty to tell the truth.\\\" N.H. R. Ev. 601(b). Where there is a record to support the trial court's determination of competency, we will not disturb that determination absent abuse of discretion. State v. Blum, 132 N.H. 396, 399, 566 A.2d 1131, 1133 (1989). Nor will we reverse the trial court's determination based upon the manner in which voir dire of a child witness is conducted, unless the handling of the matter prejudices the defendant. State v. Aikens, 135 N.H. 569, 571-72, 607 A.2d 948, 949 (1992).\\nIn this case, the defendant argues that he suffered prejudice because he did not have the opportunity to question the witness before the trial court's competency ruling to ascertain whether her testimony was rehearsed. As the trial court recognized in overruling the defendant's objection, this would be a proper line of questioning for cross-examination. See Kentucky v. Stincer, 482 U.S. 730, 744 (1987). Prior to the court's competency determination, the prosecutor properly tested her capacity \\\"to observe, remember and narrate as well as understand the duty to tell the truth.\\\" N.H. R. Ev. 601(b). She was asked, and responded to, questions about past events and recent occurrences. She was able to distinguish between the truth and lies, and she demonstrated an appreciation for the importance of telling the truth.\\nMoreover, the defendant was not deprived of the opportunity to determine whether the witness's testimonv had been rehearsed. The defendant pursued this line of questioning on cross-examination. The court retains the responsibility of determining competency throughout the trial. See C. Torc\\u00eda, Wharton's Criminal Evidence \\u00a7 360, at 444 (14th ed. 1986). If the trial court had reason to question the competency of the seven-year-old witness at any stage of the trial, the court had a duty to remove the child from the witness stand and to instruct the jury to disregard her testimony. See Kentucky v. Stincer, 482 U.S. at 743 n.13. In this case, however, the record supports the trial court's finding of competency. Accordingly, we cannot conclude that the defendant suffered any prejudice by the temporal limitation upon his ability to question the witness concerning her competency. See Aikens, 135 N.H. at 572, 607 A.2d at 949.\\nFinally, the defendant argues that the procedure of allowing only the prosecutor to examine the witness as to her competency violated his due process rights. The record reveals that the prosecutor asked the witness routine questions, directed at her capacity \\\"to observe, remember and narrate as well as an understanding of the duty to tell the truth.\\\" Blum, 132 N.H. at 399, 566 A.2d at 1133. Such questions almost certainly would have been asked by the judge in similar form had he conducted the voir dire himself. Id. Under these circumstances, we are not persuaded that the trial court's decision to allow only the prosecutor to question the victim at trial concerning her competency violated the defendant's due process rights. Cf. Kentucky v. Stincer, 482 U.S. at 744.\\nAffirmed.\\nAll concurred.\"}"

nh/2294720.json

@@ -0,0 +1 @@
+"{\"id\": \"2294720\", \"name\": \"The State of New Hampshire v. William Woveris\", \"name_abbreviation\": \"State v. Woveris\", \"decision_date\": \"1993-12-15\", \"docket_number\": \"No. 91-444\", \"first_page\": 33, \"last_page\": \"35\", \"citations\": \"138 N.H. 33\", \"volume\": \"138\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:31:43.353430+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"The State of New Hampshire v. William Woveris\", \"head_matter\": \"Strafford\\nNo. 91-444\\nThe State of New Hampshire v. William Woveris\\nDecember 15, 1993\\nJeffrey R. Howard, attorney general (John A. Curran, assistant attorney general, on the brief and orally), for the State.\\nTimothy M. Landry, assistant appellate defender, on the brief and orally, for the defendant.\", \"word_count\": \"958\", \"char_count\": \"6155\", \"text\": \"THAYER, J.\\nThe defendant, William Woveris, appeals the Superior Court's (Dickson, J.) decision revoking his probation, arguing that the State failed to adduce sufficient evidence to establish that the defendant violated his probation by not meaningfully participating in counseling. We affirm.\\nOn March 15,1989, the defendant pled guilty to two counts of felonious sexual assault, contrary to RSA 632-A:3 (1986). Pursuant to a negotiated plea, Woveris was sentenced in part to five years probation with a special condition requiring him to participate in sex offender treatment. Subsequently, the defendant was evaluated at the Strafford Guidance Center and then at the Seacoast Mental Health Center, but was refused admittance to both programs. Based upon the failure to be admitted for treatment, the State filed a violation of probation report.\\nAt the hearing on the probation violation, the witnesses called by both sides established that while treatment may indeed have been appropriate in light of the defendant's diagnosed condition of pedophilia, the defendant's denial of culpability for his behavior made such therapy impossible. The State argued on this basis that the defendant had failed to meaningfully participate in the counseling. The defendant argued that meaningful participation, while oftentimes required by a court order, was not clearly required by the terms of this particular sentencing order. The Superior Court (O'Neill, J.) clarified the sentence earlier imposed to require that the defendant not only undertake treatment, but also \\\"meaningfully participate in same,\\\" but found that no violation had been established. The defendant does not argue that this clarification enhanced or otherwise impermissibly modified his sentence.\\nFollowing this clarification by the court, the defendant was accepted into the Strafford Guidance Program; he attended all fourteen scheduled sessions there. He was terminated from further participation, however, because he was not amenable to outpatient treatment. Specifically, Woveris generally denied his conduct, and \\\"[a]t any time that he admitted the behavior, he denied his responsibility and . blamed his victims for it.\\\" Following this termination of treatment, the State filed a second violation of probation report. After another probation violation hearing centering on the defendant's continued failure to admit his behavior in the counseling context, which the Center's director characterized as a failure to participate meaningfully in the program, the Superior Court (Dickson, J.) found that this failure to participate warranted a revocation of the defendant's probation.\\nWe defer to a trial court's decision in probation revocation proceedings and reverse only where there has been an abuse of discretion. State v. Wellington, 134 N.H. 79, 80, 588 A.2d 372, 373 (1991). Further, in order to prevail, the defendant must show that the evidence, viewed in the light most favorable to the State, fails to support the decision. State v. Field, 132 N.H. 760, 766, 571 A.2d 1276, 1280 (1990).\\nWhile we have not before considered the issue, the defendant readily acknowledges that other jurisdictions have allowed a violation of probation in cases such as the instant one, where the defendant is not amenable to therapy for sexually deviant behavior due to his general denial of culpability, so long as the defendant was sufficiently on notice of the need to admit and discuss behavior as a condition of probation. See, e.g., People v. McGuire, 576 N.E.2d 391 (Ill. App. Ct. 1991); State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988); see also State v. Smith, 812 P.2d 470 (Utah App. 1991), cert. denied, 836 P.2d 1383 (Utah 1992). He argues, however, that the terms of his sentence did not give him sufficient notice that his probation would be revoked if he did not admit to and explore the reasons behind the conduct to which he pled guilty.\\nWe agree with the defendant's premise that sentencing orders must inform a defendant of the exact nature of the sentence in \\\"plain and certain terms.\\\" State v. Ingerson, 130 N.H. 112, 115-16, 536 A.2d 161, 163 (1987) (quotation omitted). In this case, however, the defendant is hard-pressed to argue that he was not on notice of these requirements, particularly after the first probation revocation hearing, the entirety of which focused on his failure to participate adequately in the counseling programs because of his continued denial of culpability for his actions. Defendant's counsel argued at the time that the defendant had not been on notice that meaningful participation was required. In response, the trial court clarified that the sentence imposed did indeed require \\\"meaningful participation\\\" by the defendant. This clarification was brought to the defendant's attention by his probation officer. See State v. Field, 132 N.H. at 761-62, 571 A.2d at 1277 (defendant sufficiently apprised of condition of probation where probation officer discussed it with him at commencement of probation); see also State v. Gleason, 154 Vt. 205, 216, 576 A.2d 1246, 1252 (1990) (condition of probation requiring discussion of sexually deviant behavior made clear at first revocation hearing; probation properly revoked for failure to participate thereafter). Given these circumstances, we do not find that the trial court abused its discretion in determining that the defendant was aware that, under the terms of his probation, he might be required to admit to and discuss in a counseling setting the same sexually deviant behavior already admitted in the hearing on the plea bargain. His failure to do so effectively frustrated the development of a treatment plan, which was a specific condition of his plea agreement. See People v. McGuire, 576 N.E.2d at 394.\\nThe record therefore supports the trial court's decision.\\nAffirmed.\\nAll concurred.\"}"

nh/2296266.json

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+"{\"id\": \"2296266\", \"name\": \"Appeal of Michelle Pritchard (New Hampshire Personnel Appeals Board)\", \"name_abbreviation\": \"Appeal of Pritchard\", \"decision_date\": \"1993-06-18\", \"docket_number\": \"No. 92-137\", \"first_page\": 291, \"last_page\": \"294\", \"citations\": \"137 N.H. 291\", \"volume\": \"137\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:01:25.828054+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Appeal of Michelle Pritchard (New Hampshire Personnel Appeals Board)\", \"head_matter\": \"Personnel Appeals Board\\nNo. 92-137\\nAppeal of Michelle Pritchard (New Hampshire Personnel Appeals Board)\\nJune 18, 1993\\nMichael C. Reynolds, general counsel, State Employees\\u2019 Association of New Hampshire, Inc., of Concord, by brief and orally, for the petitioner.\\nJeffrey R. Howard, attorney general (Nancy J. Smith, assistant attorney general, on the brief and orally), for the State.\", \"word_count\": \"985\", \"char_count\": \"6060\", \"text\": \"BATCHELDER, J.\\nThe petitioner, Michelle Pritchard, appeals the decision of the New Hampshire Personnel Appeals Board (the board), granting the department of labor's (DOL) motion to dismiss the appeal of her layoff as untimely filed. Because the fifteen-day appeal period began to run when the petitioner was laid off, rather than when she received notice of the proposed layoff, we reverse and remand.\\nBecause of operating budget deficits, former Governor Judd Gregg mandated that the DOL reduce its general fund budget by three and one half percent. The DOL responded to the mandate in part by notifying the petitioner by letter dated November 6, 1991, that she would be laid off effective November 21,1991. The effective date of the layoff was subsequently delayed until November 28,1991, to allow the petitioner to accept a position with another State agency without experiencing a break in State service.\\nThe petitioner filed an appeal with the board on December 5,1991, alleging that her layoff was improper because it was in retaliation for filing an appeal of a letter of warning concerning her job performance. On December 24, 1991, the DOL filed a motion to dismiss, arguing among other things that the appeal was untimely. The DOL contended that the \\\"action\\\" that started the fifteen-day appeal period under RSA 21-1:58 (Supp. 1992) occurred at the time notice was given on November 7, 1991, and, accordingly, that the appeal period expired on November 22, 1991.\\nThe board granted the DOLs motion to dismiss, ruling that \\\"the 'action' occurred when Labor Commissioner Flynn notified Ms. Pritchard that her position had been identified for layoff, not when Ms. Pritchard ceased working at the Department of Labor.\\\" The petitioner's motion for reconsideration was denied, and this appeal followed.\\nOur sole task on appeal is identifying the \\\"action\\\" that starts the fifteen-day appeal period. The petitioner argues that the requisite action is the layoff itself, while the State counters that it is the notice of that proposed layoff.\\nThe standard of review on appeal from an agency action is well settled. \\\"[T]he order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.\\\" RSA 541:13 (1974).\\nRSA 21-1:58, I (Supp. 1992) provides in pertinent part: \\\"Any permanent employee who is affected by any application of the personnel rules . may appeal to the personnel appeals board within 15 calendar days of the action giving rise to the appeal.\\\" (Emphasis added.) To determine the meaning of the term \\\"action,\\\" we start with the plain meaning of the statute. Town of Gilsum v. Monadnock Reg. School District, 136 N.H. 32, 36, 611 A.2d 625, 626 (1992).\\nThe \\\"action\\\" giving rise to the appeal was the respondent's layoff. \\\"Layoff\\\" is defined as \\\"the complete separation of an employee from the state classified service for an indefinite period by reason of abolition of position, change in organization, lack of work, insufficient funds, or other reasons outside the employee's control that do not reflect discredit on [the employee].\\\" N.H. ADMIN. RULES, Per 101.21 (1983) (current version at Per 101.34 (1992)). It is precisely this action that the petitioner challenges.\\nThe personnel rules make a distinction between \\\"layoff\\\" and \\\"notice of layoff.\\\" Compare id. 308.05 (a) (1983) with id. 308.05 (c) (1983) (current versions at Per 1101.02 and Per 1101.03 (1992)). In this case, the petitioner does not assert error in the notice procedure. Rather, she maintains that the layoff itself was done in a retaliatory manner.\\nThe plain meaning of the statute requires us to hold that the fifteen-day appeal period began on the date of layoff, not on the date of notice. If the legislature had intended to begin the running of the appeal period at the time \\\"of notice of\\\" the action, it could have included those words in the statute. We cannot add words to the statute that the lawmakers did not see fit to include. Brown v. Brown, 133 N.H. 442, 445, 577 A.2d 1227, 1229 (1990).\\nWe find the authority cited by the State to be unpersuasive. In Delaware State College v. Ricks, 449 U.S. 250 (1980), the plaintiff alleged discriminatory denial of tenure. He argued that the statute of limitations began to run at the end of his one-year terminal contract. Id. at 257. The Supreme Court disagreed, holding that because the \\\"unlawful employment practice\\\" of which he complained was the denial of tenure, the statute of limitations began to run when tenure was denied. Id. at 259. The Court specifically distinguished the case before it from one in which the plaintiff alleged discriminatory termination, id. at 257, as the petitioner alleges here. Similarly, Oliveira v. Department of Public Safety, 309 S.W.2d 557 (Tex. Ct. App. 1958), is readily distinguishable, because in that case the statute authorized appeal \\\"within ten (10) days after notice [of any order or act of the department],\\\" (emphasis added), language significantly different from the statute before us. Id. at 559.\\nWhile we ordinarily defer to an administrative interpretation of a statute, such an interpretation is not controlling when it is plainly incorrect. Appeal of Levesque, 136 N.H. 211, 213, 612 A.2d 1333, 1334 (1992). The petitioner was laid off on November 28,1991. She filed her appeal on December 5, 1991, within the fifteen-day appeal period under RSA 21-1:58, I (Supp. 1992). Consequently, her appeal was timely, and the board erred in deciding to the contrary. Accordingly, we reverse and remand.\\nReversed and remanded.\\nAll concurred.\"}"

nh/2296302.json

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+"{\"id\": \"2296302\", \"name\": \"The State of New Hampshire v. Normand Turgeon\", \"name_abbreviation\": \"State v. Turgeon\", \"decision_date\": \"1993-08-19\", \"docket_number\": \"No. 92-154\", \"first_page\": 544, \"last_page\": \"548\", \"citations\": \"137 N.H. 544\", \"volume\": \"137\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:01:25.828054+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"The State of New Hampshire v. Normand Turgeon\", \"head_matter\": \"Hillsborough\\nNo. 92-154\\nThe State of New Hampshire v. Normand Turgeon\\nAugust 19, 1993\\nJeffrey R. Howard, attorney general (Jeffrey W. Spencer, assistant attorney general, on the brief and orally), for the State.\\nJames E. Duggan, chief appellate defender, of Concord, by brief and orally, for the defendant.\", \"word_count\": \"1526\", \"char_count\": \"9555\", \"text\": \"Thayer, J.\\nOn September 23, 1991, the defendant, Normand Turgeon, was convicted in Superior Court (Groff, J.) of arson, RSA 634:1 (1986). The defendant unsuccessfully moved to set aside the jury verdict on the ground that the prosecutor's closing argument improperly commented on the defendant's failure to testify. For the following reasons, we affirm.\\nDuring the defendant's opening statement, counsel suggested that the defendant was intoxicated and that the fire started by accident. The prosecutor, in the State's closing argument, responded to the defense counsel's suggestions of accident as follows:\\n\\\"The defense said to you . in [her] opening that the . . . defendant could have started this fire by mistake. Well, did you hear any evidence of that? Was . . . there even any evidence presented to you that this fire was started by mistake? Did Mr. Turgeon tell you that he started this fire by mistake?\\\"\\n(Emphasis added.) The trial judge immediately instructed the jury:\\n\\\"Ladies and gentlemen, as I'm also going to instruct you in this case and as you already know, defendant has no obligation to present any evidence and no obligation to testify, and I will instruct you at length about that, so I'm going to ask you to disregard anything you've heard in argument of counsel relative to anything that Mr. Turgeon should have said or could have said.\\\"\\n(Emphasis added.) The trial judge also instructed the jury at the close of trial regarding the defendant's right not to testify.\\nThe prosecutor continued her closing argument after the instruction:\\n\\\"[W]hen defense counsel stands up and tells you this fire could have been started by mistake, I ask you: Look at what Mr. Turgeon has told you through the police and through that tape.\\n. [L]ook at what was told to you in defendant's opening argument and compare it to what was told to you through Mr. Turgeon through the police, and in [the videotape at the police station]. . . .\\\"\\n(Emphasis added.)\\nOn appeal, the defendant argues that the prosecutor's first remark constituted impermissible comment on the defendant's failure to testify. The defendant further contends that any curative effect of the judge's immediate instruction was negated by the prosecutor's subsequent remarks in closing argument, and thus reversal of the defendant's conviction is warranted.\\nThe defendant must satisfy two preconditions before triggering a State constitutional analysis: \\\"first, the defendant must raise the State constitutional issue below; second, the defendant's brief must specifically invoke a provision of the State Constitution.\\\" State v. Fowler, 132 N.H. 540, 545, 567 A.2d 557, 560 (1989) (quotation omitted). While the defendant raised a State constitutional provision below, he has failed to fulfill the second precondition. He makes no reference to any State constitutional provision in his brief, nor does he make even a general reference to State constitutional grounds. Cf. State v. Ramos, 131 N.H. 276, 281, 553 A.2d 275, 279 (1988). Thus, because the defendant has not met his procedural burden to properly raise a State constitutional issue, we will address his federal claim only. See Fowler, 132 N.H. at 545, 567 A.2d at 560.\\nWe construe the defendant's argument as raising his sixth amendment right to a fair trial under the Federal Constitution. He contends that the alleged prosecutorial misconduct denied him a fair trial and thus the judge erred in denying his motion to set aside the verdict. The determination of whether to set aside the verdict lies within the sound discretion of the trial court, a decision we will reverse only if we find an abuse of discretion. See State v. Houle, 120 N.H. 160, 161, 412 A.2d 736, 737 (1980).\\nAs a general rule, a prosecutor is forbidden from commenting on a defendant's failure to testify at trial. See Griffin v. California, 380 U.S. 609, 615 (1965). The defendant argues that this court has dealt only with prosecutorial commentary on the defendant's failure to call witnesses, however, and not with comments upon defendant's failure to testify. The defendant further contends that a prompt curative instruction by itself does not bar reversal or, in other words, he argues that such an instruction by itself will not always cure an impermissible comment.\\nA prosecutor's impermissible comment may require a new trial either because the misconduct \\\"so poisoned the well that the trial's outcome was likely affected\\\" or \\\"the breach was so egregious that reversal becomes a desirable sanction to forestall future pros ecutorial trespasses.\\\" United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987); see United States v. Ingraldi, 793 F.2d 408, 416 (1st Cir. 1986). In making this determination, we look at the prosecutor's alleged misconduct and balance several factors: \\\"the severity of the misconduct, whether it was deliberate or accidental, the context in which it occurred, the likely curative effect of the judge's admonitions and the strength of the evidence against the defendant.\\\" Ingraldi, 793 F.2d at 416; see United States v. Cox, 752 F.2d 741, 745 (1st Cir. 1985). Examining the record with these factors in mind leads us to conclude that a new trial is not warranted..\\nWe recognize that the misconduct in the case at bar could be considered a violation of the basic rule prohibiting prosecutorial comment on the defendant's failure to testify. See Griffin, 380 U.S. at 615. Although the jury could have understood the prosecutor's first comment as referring to the evidence presented in the defendant's case, the jury also could have interpreted the remark as pointing out the fact that the defendant failed to testify and tell the jury that he started the fire by mistake. The defendant argues that the prosecutor's subsequent remarks were further impermissible comments, constituting misconduct severe enough to effectively nullify the instruction's remedial effect. While we have recognized that \\\"intentional, repetitive misconduct\\\" by a prosecutor may require reversal, see State v. Bujnowski, 130 N.H. 1, 5-6, 532 A.2d 1385, 1387-88 (1987) (prosecutor's continued misconduct rendered trial court's curative instruction meaningless), such is not the case here. In the case at bar, the prosecutor's subsequent remarks were fair commentary. By raising accident as a defense, the defendant \\\"opened the door\\\" to the prosecutor's subsequent remarks. See Fowler, 132 N.H. at 546, 567 A.2d at 560. Thus, the prosecutor's misconduct was merely an isolated instance and not the type of repetitive or severe misconduct that could negate the curative effect of the trial court's instruction.\\nSecond, we examine whether the prosecutor deliberately commented on the defendant's failure to take the stand. In Cox supra, the prosecutor prefaced his improper comment with statements explaining that defendants need not present any defense. The First Circuit found this prefatory remark indicative of the prosecutor knowing his comment was dangerously close to the Griffin proscription. Cox, 752 F.2d at 745. In the present case, there were no prior remarks which would indicate that the prosecutor was acting deliberately. The prosecutor's comment appears to have been inadvertent, rather than deliberate misconduct.\\nWe next consider the likely curative effect of the trial judge's instruction. We have recognized that under federal law an immediate curative instruction can adequately remedy improper prosecutorial commentary. See Fowler, 132 N.H. at 547, 567 A.2d at 561; State v. Lovely, 124 N.H. 690, 697, 480 A.2d 847, 851 (1984); State v. Fowler, 110 N.H. 110, 113, 261 A.2d 429, 431 (1970). The trial judge's instruction, as in Cox, was \\\"immediate, definitive, and strong.\\\" Cox, 752 F.2d at 746. Moreover, in the case at bar, the trial judge reinforced his curative instruction by his final charge to the jury when he again explained that the defendant has the right not to testify and has no obligation to present any evidence or prove his innocence.\\nThe evidence against the defendant was quite strong. The testimony revealed that the defendant walked out of his bedroom and left the apartment, with no one else entering the bedroom. A few minutes later the remaining occupants heard crackling noises. They looked into the defendant's bedroom and found black smoke filling the room and flames emanating from the closet. The defendant was arrested later that night and an inventory search of the defendant produced a lighter. A fire inspector testified that the fire was started intentionally and had originated in the closet in the defendant's bedroom. The inspector explained that the fire was started in the closet by an open flame, either a match or lighter, which was held against the clothes for three to six seconds. Finally, our consideration of the context in which the prosecutor made the improper comment confirms our conclusion that the comment did not prejudice the outcome of the trial and was not so egregious as to require reversal. Cf. United States v. Lilly, 983 F.2d 300, 308 (1st Cir. 1992).\\nAfter balancing these factors, we hold that the trial judge did not abuse his discretion in denying the defendant's motion to set aside the verdict. Accordingly, we affirm.\\nAffirmed.\\nAll concurred.\"}"

nh/2296349.json

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+"{\"id\": \"2296349\", \"name\": \"Center for Gastrointestinal Medicine, Inc. v. William J. Willitts & a.\", \"name_abbreviation\": \"Center for Gastrointestinal Medicine, Inc. v. Willitts\", \"decision_date\": \"1993-04-13\", \"docket_number\": \"No. 92-189\", \"first_page\": 67, \"last_page\": \"70\", \"citations\": \"137 N.H. 67\", \"volume\": \"137\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:01:25.828054+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Center for Gastrointestinal Medicine, Inc. v. William J. Willitts & a.\", \"head_matter\": \"Hillsborough\\nNo. 92-189\\nCenter for Gastrointestinal Medicine, Inc. v. William J. Willitts & a.\\nApril 13, 1993\\nCullity, Kelley and McDowell, of Manchester, for the Center for Gastrointestinal Medicine, Inc., filed no brief.\\nWiggin & Nourie P.A., of Manchester (L. Jonathan Ross and Barbara Abbott on the brief, and Ms. Abbott orally), for Diane R. Willitts.\\nDouglas & Douglas, of Concord (Charles G. Douglas, III on the brief and orally), for William J. Willitts.\", \"word_count\": \"1171\", \"char_count\": \"7237\", \"text\": \"HORTON, J.\\nWilliam J. Willitts appeals an order by the Superior Court (Barry, J.) approving the assignment of $5,000 of his wages per month to Diane R. Willitts to satisfy a child support order. On appeal, William Willitts claims that the amount of the assignment violates the Consumer Credit Protection Act, 15 U.S.C. \\u00a7 1673 (1982), as incorporated into the New Hampshire wage assignment statute, RSA chapter 458-B (1992). We reverse and remand.\\nThis case arises from a bill of interpleader filed by William Willitts' employer, the Center for Gastrointestinal Medicine, Inc. (CGM), seeking a determination as to the validity of the wage assignment. Diane Willitts and William Willitts were married in October 1971 and have three children. In April 1990, Diane Willitts filed for divorce, and in May 1990, the Superior Court (Dalianis, J.) issued a temporary order directing William Willitts to pay $6,000 per month in child support. The defendant did not comply with the order, and in August 1991, when his payments were $40,100 in arrears, the Superior Court (Dunn, J.) ordered him to pay $20,000 on or before August 15,1991, and a balance of $11,000 on or before October 1, 1991. The court granted William Willitts' request to retroactively modify his support obligation to $5,000 per month, in light of the fact that he had assumed custody of one of the parties' children.\\nIn its August 1991 order, the superior court also found that William Willitts had intentionally reduced his income as a consequence of the pending divorce proceedings, and granted Diane Willitts' request for a wage assignment. In 1987 and 1988, William Willitts, as a practicing physician specializing in gastrointestinal medicine, earned $291,385 and $384,223, respectively. Although his income fell to $81,007 in 1989, his gross receipts totalled $467,160, reflecting only a moderate decline from the $552,287 grossed in 1988. In addition, wages paid by William Willitts totaled $262,360 in 1989, reflecting a huge increase from the $53,052 paid in 1988. In 1990, William Willitts formed CGM in Manchester. Thereafter, he became an employee of CGM, but retained a twenty-five percent interest in the corporation. His reported income declined precipitously following the formation of CGM, and in 1990 his earnings totaled only $65,000. Based on this evidence, the superior court concluded that William Willitts had intentionally restricted his income, and it directed CGM to pay to Diane Willitts \\\"such assignments as are authorized by\\\" RSA chapter 458-B. Diane Willitts forwarded a notice of wage assignment to CGM in the amount of $5,000 per month.\\nIn October 1991, CGM filed a bill of interpleader to determine the validity of the $5,000 wage assignment, an amount which exceeded William Willitts' monthly earnings. Since filing the bill, CGM has paid half of William Willitts' wages directly to Diane Willitts, and has deposited the remainder into an escrow account with the superior court. The Superior Court (Barry, J.) upheld the wage assignment, and this appeal followed.\\nThe defendant raises the following arguments: (1) that the wage assignment violated 15 U.S.C \\u00a7 1673(b), as incorporated into RSA chapter 458-B; (2) that the trial court erred in assigning 100 percent of his wages to Diane Willitts, when he had a continuing obligation to support a minor child in his custody; and (3) that he had no duty under New Hampshire law to continue earning at his career peak for the duration of his child support obligation.\\nResolution of this case requires that we interpret for the first time the restrictions on wage assignments in RSA chapter 458-B. Under RSA 458-B:6, I (1992), the amount of an individual's wages subject to assignment cannot exceed the limits set forth under RSA 458-B:4, IV (1992). RSA 458-B:4, IV in turn, provides that \\\"the total amount withheld shall not exceed the amount specified in 15 U.S.C. 1673(b).\\\" Under 15 U.S.C. \\u00a7 1673(b)(2)(A), where an individual is supporting a spouse or dependent child, no more than fifty percent of that individual's disposable weekly earnings may be garnished to enforce a support order.\\nThe superior court concluded that the wage assignment did not run afoul of either RSA chapter 458-B or 15 U.S.C. \\u00a7 1673(b), even though the amount of the assignment exceeded William Willitts' monthly earnings. The court reasoned that because William Willitts had intentionally restricted his income, he was not entitled to the assignment restrictions set forth in section 1673(b).\\nWe hold that the assignment violates the clear language of 15 U.S.C. \\u00a7 1673(b). Section 1673(b)(2)(A) states that where an individual is supporting a spouse or dependent child, no more than fifty percent of that individual's wages may be garnished to satisfy a support order. To allow otherwise would jeopardize the individual's ability to properly support the spouse or child in his custody. The assignment limit is unequivocal and nondiscretionary; 15 U.S.C. \\u00a7 1673(c) prohibits federal or state courts from issuing garnishment orders in violation of the statute.\\nIn upholding the $5,000 wage assignment, the superior court relied on Noddin v. Noddin, 123 N.H. 73, 76, 455 A.2d 1051, 1053 (1983), where we held that a petition to modify an alimony or child support order will be denied if a \\\"change in financial condition is due to fault or voluntary wastage or dissipation of one's talents and assets.\\\" Noddin, however, concerned the substantive grant or modification of a support order, while we are now concerned with the enforcement of such an order. We would not hesitate to follow Nod-din to the extent it articulates our resolve that attempts to waste or otherwise diminish one's assets shall not affect the grant or modification of a support order. We will not extend Noddin to overcome an express statutory restriction on the use of wage assignments to enforce support orders.\\nDiane Willitts contends that application of section 1673(b) would reward William Willitts for voluntarily restricting his income in the face of the pending divorce proceedings. Our holding today, however, in no way relieves William Willitts of his legal obligation to pay Diane Willitts $5,000 per month in child support. Diane Willitts need not rely solely on RSA chapter 458-B to enforce this obligation. Other legal remedies, such as motions for contempt and attachment of capital stock interests and other assets, are available to her.\\nWe conclude that the superior court erred in approving the $5,000 wage assignment and, thus, reverse and remand for proceedings consistent with this opinion. As our decision turns on the court's failure to comply with RSA chapter 458-B, we do not address William Willitts' additional arguments.\\nReversed and remanded.\\nAll concurred.\"}"

nh/2302683.json

@@ -0,0 +1 @@
+"{\"id\": \"2302683\", \"name\": \"John Berg and Patricia Berg v. Winfield O. Kelley, Jr.\", \"name_abbreviation\": \"Berg v. Kelley\", \"decision_date\": \"1991-05-06\", \"docket_number\": \"No. 90-107\", \"first_page\": 255, \"last_page\": \"259\", \"citations\": \"134 N.H. 255\", \"volume\": \"134\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T01:51:11.541604+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"John Berg and Patricia Berg v. Winfield O. Kelley, Jr.\", \"head_matter\": \"Carroll\\nNo. 90-107\\nJohn Berg and Patricia Berg v. Winfield O. Kelley, Jr.\\nMay 6, 1991\\nAttorney Mark Rufo & Associates P.C., of Nashua (Mark M. Rufo on the brief and orally), for the plaintiffs.\\nWadleigh, Starr, Peters, Dunn & Chiesa, of Manchester (John A. Lassey on the brief and orally), for the defendant.\", \"word_count\": \"1591\", \"char_count\": \"9390\", \"text\": \"Brock, C.J.\\nThe plaintiffs, John and Patricia Berg, appeal from orders of the Superior Court (Temple, J.) denying their motion to amend and granting the defendant's two motions to dismiss. We reverse and remand.\\nThe relevant facts are as follows. The defendant, Winfield Kelley, Jr., a chiropractor, treated the plaintiff, John Berg, between June and December, 1986. Beginning in November, the plaintiff experienced adverse symptoms resulting in his hospitalization from December 1986 to February 1987. During his hospitalization, he was diagnosed as having a degenerative disease of the neck. The plaintiffs claim that this condition resulted from the defendant's breach of the standard of care in chiropractic treatment.\\nIn November, 1989, plaintiffs' counsel forwarded a writ of summons to the sheriff's office for service on the defendant. The defendant was served, and his counsel entered a general appearance and filed a special plea and statement of defense with the superior court. Because the plaintiffs' counsel used a district court writ, the superior court clerk's office refused to enter the writ and returned it to the plaintiffs. Counsel for the plaintiffs then prepared and forwarded a second writ of summons on the correct form, which was served on the defendant in January, 1990.\\nThe defendant moved to dismiss the first writ, claiming that it was void for lack of the superior court clerk's signature. The plaintiffs filed a motion to amend, requesting that the superior court writ be substituted for the district court writ. In response to the second writ, the defendant filed a special appearance and a motion to dismiss alleging that the second writ was barred by the three-year statute of limitations. RSA 508:4 (Supp. 1990). In a single order, the Superior Court (Temple, J.) denied the plaintiffs' motion to amend filing and granted both of the defendant's motions to dismiss. This appeal followed.\\nOn appeal, the plaintiffs assert: (1) that a jury should determine whether the plaintiff's injury arose out of the professional services rendered by the defendant prior to July 1, 1986, in which case the cause of action would be subject to a six-year statute of limitations, RSA 508:4 (1981) (current version at Supp. 1990); (2) that suit was timely brought under the three-year statute of limitations; (3) that the attachment of the original complaint to the district court writ was a defect in form subject to correction by amendment; (4) that the three-year statute of limitations was tolled by the defendant's representations, accepting the writ as valid; and (5) that the plaintiffs ought not to be denied the benefit of RSA 508:10, having brought their second suit after the three-year statute of limitations had run.\\nWe decide this case on the basis of the plaintiffs' final assertion that they should be benefited by RSA 508:10. RSA 508:10 provides that \\\"[i]f judgment is rendered against the plaintiff in an action brought within the time limited therefor, or upon a writ of error thereon, and the right of action is not barred by the judgment, a new action may be brought thereon in one year after the judgment.\\\" This so-called saving statute is \\\"designed to insure a diligent suitor the right to a hearing in court until he reaches a judgment on the merits.\\\" Brady v. Duran, 119 N.H. 467, 468, 403 A.2d 416, 417 (1979) (quoting Adams v. Sullivan, 110 N.H. 101, 105, 261 A.2d 273, 276 (1970)); see Rowe v. John Deere, 130 N.H. 18, 23, 533 A.2d 375, 378 (1987) (citation omitted). The statute benefits suitors who \\\"are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them with a cause of action, yet undetermined.\\\" Brady v. Duran, supra at 469-70, 403 A.2d at 418 (quoting Milford Quarry &c. Co. v. Railroad, 78 N.H. 176, 178, 97 A. 982, 983-84 (1916), itself quoting State Bank v. Magness, 11 Ark. (6 Eng.) 343, 346 (1860)). The liberal purpose of the statute \\\"is not to be frittered away by any narrow construction.\\\" Hughes v. Hebert, 106 N.H. 176, 178, 207 A.2d 432, 433 (1965) (quoting Gaines v. City of New York, 215 N.Y. 533, 539, 109 N.E. 594, 596 (1915)).\\nEssentially, RSA 508:10 serves \\\"to permit an action to be brought after the general limitation ha[s] run (RSA 508:4), where a prior action, seasonably brought, should be dismissed for reasons not barring the right of action or determining it upon its merits.\\\" Hughes v. Hebert, supra at 177, 207 A.2d at 433. The test of RSA 508:10 \\\"is whether the right of action is, or is not, barred by the first judgment.\\\" Milford Quarry &c. Co. v. Railroad, supra at 177, 97 A. at 983.\\nThe defendant argues that because the plaintiffs' first writ was void, no cause of action was \\\"brought\\\" within the statute of limitations as required by RSA 508:10. The defendant further contends that the plaintiffs' second action is barred under the doctrine of res judicata, because a dismissal of the first writ as a nullity was analogous to dismissal for failure to state a claim or failure to bring an action within the appropriate statute of limitations, thereby constituting a judgment on the merits. Consequently, the defendant asserts that the saving statute, RSA 508:10, is inapplicable to this case. We do not accept the defendant's arguments.\\nWe first address the defendant's argument that the original writ was void and that, therefore, the plaintiffs did not bring suit within the statute of limitations. The record reveals that plaintiffs' counsel prepared the first writ and had it served on the defendant before the third anniversary of the plaintiff's last chiropractic appointment with; the defendant. It is well established that \\\"a suit is to be considered as commenced, or brought, when the writ is sued out and completed, in order to have it served on the defendant.\\\" Mason v. Cheney, 47 N.H. 24, 25 (1866) (citations omitted), quoted in Brady v. Duran, 119 N.H. at 469, 403 A.2d at 418; see Maguire v. Merrimack Mut. Fire Ins. Co., 125 N.H. 269, 272, 480 A.2d 112, 113 (1984) (citation omitted); Hodgdon v. Weeks Mem. Hosp., 122 N.H. 424, 426, 445 A.2d 1116, 1117-18 (1982). It is inescapable that the plaintiffs brought their action on a judicially sanctioned writ, although it was later dismissed, well within the three-year statute of limitations.\\nWe next address the defendant's claim that the plaintiffs' second suit was barred by the dismissal of the first action. The plaintiffs mistakenly used a district court writ rather than a superior court writ. Thus, the writ lacked the required signature of the superior court clerk. See Smith v. Tallman, 87 N.H. 176, 177, 175 A. 857, 858 (1934); Parsons v. Sweet, 32 N.H. 87, 88-89 (1855). This defect of form resulted in the superior court clerk's refusal to accept the case for filing. See Brady v. Duran, 117 N.H. 275, 276, 372 A.2d 283, 284 (1977). The clerk's refusal resulted in the trial court's later dismissal of the action and denial of the motion to amend as there was no writ to be amended. Because no writ was on file with the court, its granting of the motion to dismiss the first writ was actually without effect, and its denial of the motion to amend was without error.\\nThe difficult question is whether RSA 508:10 applies to this case. We have previously applied the saving statute where a plaintiff, through clerical error, failed to file a writ with the clerk of court, and the trial court denied the plaintiff's motion for late entry of the writ. Brady v. Duran, 119 N.H. at 468-70, 403 A.2d at 417-18. In our view, the clerk's refusal to accept the defective writ in the case before us is in the nature of a dismissal for lack of jurisdiction, because the superior court did not have a proper writ before it. Such a dismissal does not constitute a judgment on the merits. See Restatement (Second) of Judgments \\u00a7 20, at 170. Accordingly, we conclude that the plaintiffs' second suit is not barred under the doctrine of res judicata.\\nRSA 508:10 states that a new action may be brought within one year after the date of judgment. The plaintiffs prepared and served their second writ on the defendant after the superior court clerk's office returned the first writ, but before the trial court granted the defendant's motion to dismiss the first writ. The superior court clerk's action was in essence an adverse \\\"judgment,\\\" because his failure to file the writ precluded the plaintiffs' recovery on that first suit.\\nThe evident purpose of RSA 508:10 is to benefit diligent suitors like the plaintiffs in this case. It would be incongruous to deny the plaintiffs the benefit of RSA 508:10, when in fact they were so diligent as to commence their second suit immediately upon notification by the superior court clerk's office that the first writ was defective. Because we afford the plaintiffs relief under RSA 508:10, we need not address their other claims. Accordingly, we find that the granting of the defendant's motion to dismiss the second writ was in error, and we remand the case for a trial on the merits.\\nReversed and remanded.\\nAll concurred.\"}"

nh/2349378.json

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+"{\"id\": \"2349378\", \"name\": \"Michael B. McGann v. Philip Steenstra; Geno Eriquezzo v. James E. M. Coughlin, Jr.\", \"name_abbreviation\": \"McGann v. Steenstra\", \"decision_date\": \"1988-05-06\", \"docket_number\": \"No. 86-503; No. 87-218\", \"first_page\": 411, \"last_page\": \"413\", \"citations\": \"130 N.H. 411\", \"volume\": \"130\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:17:43.560822+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Michael B. McGann v. Philip Steenstra Geno Eriquezzo v. James E. M. Coughlin, Jr.\", \"head_matter\": \"Cheshire\\nNo. 86-503\\nHillsborough\\nNo. 87-218\\nMichael B. McGann v. Philip Steenstra Geno Eriquezzo v. James E. M. Coughlin, Jr.\\nMay 6, 1988\\nMichael B. McGann, by brief pro se.\\nArthur L. Trombly, of Keene, by brief for the defendant, Philip Steenstra.\\nMage & Modes, of Manchester (Jamie N. Mage on the brief), by brief for the plaintiff, Geno Eriquezzo.\\nWiggin & Nourie, of Manchester (Dort S. Bigg on the brief), by brief for the defendant, James E. M. Coughlin, Jr.\", \"word_count\": \"501\", \"char_count\": \"2923\", \"text\": \"Memorandum Opinion\\nBrock, C.J.\\nIn each of these unrelated appeals, submitted together by orders of October 8, 1987, the sole issue that we need address is whether the action was properly dismissed under Superior Court Rule 58. Neither the facts underlying each action, nor the proceedings that followed the dismissals, are relevant to our decision, and we therefore omit them here. We reverse and remand.\\nThe record before us indicates that in case No. 86-503, a motion to dismiss was filed with the superior court on October 6, 1986, and that by letter dated October 23, 1986, the parties were advised as follows:\\n\\\"Please be advised that on October 23, 1986, Stillman Rogers, Clerk made the following order in the above captioned case:\\nRe Motion to Dismiss\\nPetition (sic) to Dismiss is granted, no objection thereto having been filed by plaintiff. By order of the Superior Court.\\n(s) Stillman D. Rogers, Clerk\\\"\\nSimilarly, in case No. 87-218, a motion to dismiss with prejudice was filed with the superior court on December 10, 1986, and by notice dated December 30, 1986, the parties were advised as follows:\\n\\\"You are hereby notified that on December 29,1986 the following order was entered in the above matter:\\nRe: Motion to dismiss with prejudice\\nThere being no objection, the motion is:\\nGranted \\u2014 Rule 58.\\nBy Order of the Court John M. Safford, Clerk\\\"\\nSuperior Court Rule 58 states:\\n\\\"Unless the opposing party requests a hearing upon any motion and sets forth the grounds of the objection by a pleading, and if required, an affidavit, within ten days after the filing of the motion, he shall be deemed to have waived a hearing, and the Court may act thereon.\\\"\\nContrary to its apparent application in the cases before us, Rule 58 does not provide that a motion to which no objection is filed within ten days may be ministerially granted. Rule 58 says only that, in such cases, the party failing to object \\\"shall be deemed to have waived a hearing, and the Court may act thereon\\\" (emphasis added).\\nWe construe the language in Rule 58 as requiring that a trial judge decide whether or not to grant the motion only after the judge has considered the law and the pleadings before the court.\\nBecause a trial judge was not given an opportunity to follow this procedure in the two cases on appeal, we vacate the orders dismissing them, and remand for proceedings consistent with this opinion and the requirements of justice. See RSA 490:4.\\nVacated and remanded.\"}"

nh/2352734.json

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+"{\"id\": \"2352734\", \"name\": \"Verne C. Swan v. Eileen M. Bill, individually and as administratrix of the estate of John R. Monahan\", \"name_abbreviation\": \"Swan v. Bill\", \"decision_date\": \"1948-06-01\", \"docket_number\": \"No. 3721\", \"first_page\": 158, \"last_page\": \"161\", \"citations\": \"95 N.H. 158\", \"volume\": \"95\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:34:12.129761+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Verne C. Swan v. Eileen M. Bill, individually and as administratrix of the estate of John R. Monahan.\", \"head_matter\": \"Municipal Court of Keene,\\nJune 1, 1948.\\nNo. 3721.\\nVerne C. Swan v. Eileen M. Bill, individually and as administratrix of the estate of John R. Monahan.\\nRobert W. Upton and Howard B. Lane (Mr. Lane orally), for the plaintiff.\\nRoy M. Pickard (by brief and orally), for the defendant.\", \"word_count\": \"1332\", \"char_count\": \"7641\", \"text\": \"Johnston, J.\\nThe usual rule is that a lease for a term of years descends as personal estate. Brewster v. Hill, 1 N. H. 350. To accomplish this it is not necessary that the lease include the words \\\"to the heirs, administrators or assigns of the lessee\\\" or similar phraseology. The lease does not terminate upon the death of the lessee unless there is express provision to that effect or the terms are so personal that they can apply to the lessee only. 32 Am. Jur. 81.\\nFor the purpose of the present case, it may be assumed, without deciding, that the covenant \\\"that he will not lease or underlet, nor permit any other person or persons to occupy the same\\\" is one against assignment without the consent of the lessor. Upton v. Hosmer, 70 N. H. 493.\\n\\\"A transfer by operation of law is not, in the absence of an express stipulation in that regard, within a provision against assignment, unless it is procured by the tenant merely for the purpose of avoiding the restriction.\\\" 1 Tiffany, Landlord and Tenant 929. This principle that an involuntary assignment or one by operation of law is not within the prohibition of the ordinary covenant against assignment without the consent of the lessor was applied in the case of Young v. Voudomas, 84 N. H. 180, in favor of an assignee of a lessee's trustee in bankruptcy. The landlord urged that although the lease for the original term might pass to the assignee, the right to renew could not. It was held that there was no violation of any covenant and that accordingly the assignee could exercise the privilege of renewing the lease. In this case the assignment by operation of law included not only the transfer to the trustee in bankruptcy but also the assignment by the latter. To give effect to an involuntary assignment, it is necessary that there go with it the privilege of disposing of the lease.\\nIn Squire v. Learned, 196 Mass. 134, it was decided that a covenant against assignment did not bar the transmission of the leasehold on the death of the lessee from the executor to himself as trustee. \\\"It is admitted in all the cases that the transmission of the lessee's interest to the administrator of his estate is not a breach of the covenant not to assign. The fact that where the lessee dies intestate there is no voluntary act on his part would be decisive of that if there were no other reason. In such a case the transfer is by operation of law alone.\\\" Id., 136. The plaintiff Swan points out that in the Massachusetts case the lease was to the lessee and his \\\"personal representatives\\\" and that the covenant not to assign was binding on the lessee \\\"or others having his estate in the premises.\\\" However, as indicated earlier in this opinion, a lease need not run to a lessee's representatives in order that the estate may pass to them at the lessee's death; and the covenant in the lease before us does not purport to bind the lessee's representatives.\\nIn Francis v. Ferguson, 246 N. Y. 516, the lower court had from wording similar to that in the Massachusetts case concluded that a covenant against assignment was binding upon executors and that they could not dispose of such an asset of the estate. There the lease contained a covenant against assignment and it was agreed at the end that the covenant should be binding \\\"on the parties hereto and their legal representatives.\\\" The court in reversing the lower tribunal said: \\\"The judgment below proceeds upon a misconception of the effect of the final clause of the lease. It expresses merely what the law presumes in the absence of such a clause. Tt is a presumption of law, in the absence of express words, that the parties to a contract intend to bind not only themselves, but their personal representatives.' Kernochan v. Murray, 111 N. Y. 306, 308.\\\" Supra, 518. Further language of the court is as follows: \\\"An ordinary covenant against assignment does not bind the executors of the tenant and is not broken by a transfer of the leased premises by operation of law . . . The covenant may, however, be so drawn as expressly to prohibit such a transfer. To accomplish such a prohibition in case of a devolution to executors, the language must be 'very special'. . . . Such covenants are construed 'with the utmost jealousy.' \\\" It was held that the executors not only had the capacity to take the leasehold but also to dispose of it.\\nIn the instant case the lease contains no language extending the privileges or the obligations to personal representatives of the lessee. Accordingly the general principle applies that a covenant against assignment, if any, is not binding on the personal representatives of the lessee. In other words the leasehold passes by operation of law to them and may be assigned by them. The law is well stated in 32 Am. Jur. 302. \\\"The transfer of a leasehold estate, upon the death of the lessee, to his personal representative is by operation of law, and is in all cases admitted not to be a breach of a general covenant restricting the assignment of the leasehold estate. Also, according to the generally accepted view, a sale of the leasehold in the course of administration will not constitute a breach of a covenant restricting assignments, unless the covenant by its express terms is to be binding on the personal representatives of the lessee; but where the lease expressly makes the covenant binding on the personal representatives, any transfer by the representatives is a violation of the covenant.\\\"\\nThe plaintiff also contends that the administratrix was without right to renew the lease because she had no authority to continue the business of the decedent. The record does not disclose whether the defendant is holding the lease as administratrix or as sole distributee of the estate. Nor does it appear what authority the defendant administratrix had or did not have under the laws of Massachusetts to continue the business of John R\\\" Monahan. By comity, in the absence of the appointment of an ancillary administrator in this state, a foreign administrator may collect the assets of the estate located here when there is no prejudice to local interests. Ghilain v. Couture, 84 N. H. 48; Upton v. White, 92 N. H. 221. In taking possession of the leasehold, exercising the option and defending her title in the present action she has done no more so far as these actions are concerned. If she had disposed of the leasehold to herself as distributee, she had the right so to do on the authorities. On the other hand, if she contemplates operating the business of the bowling alleys as administratrix and to the extent that she has operated them as incidental to collecting the assets, interested parties may question the propriety of and her responsibility for this in the domiciliary probate court that appointed her. That issu\\u00e9 is not involved in the present suit. If there is need, any creditor may petition for ancillary administration in this state. Keenan v. Tonry, 91 N. H. 220.\\nThe plaintiff admits in argument that the administratrix acquired the balance of the original term of the lease but denies her right to exercise the option. If she acquired the remainder of the original term, she took with it all the rights and the privileges. If the term of the lease did not descend to her, then of course she would not have the right of the option to renew.\\nJudgment for the defendant.\\nAll concurred.\"}"

nh/2360264.json

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+"{\"id\": \"2360264\", \"name\": \"Mobil Oil Corporation v. Goodhue Boatyard Co.\", \"name_abbreviation\": \"Mobil Oil Corp. v. Goodhue Boatyard Co.\", \"decision_date\": \"1969\", \"docket_number\": \"\", \"first_page\": 81, \"last_page\": \"84\", \"citations\": \"110 N.H. 81\", \"volume\": \"110\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:19:20.750972+00:00\", \"provenance\": \"CAP\", \"judges\": \"Griffith, J., did not sit; the others concurred.\", \"parties\": \"Mobil Oil Corporation v. Goodhue Boatyard Co.\", \"head_matter\": \"Mobil Oil Corporation v. Goodhue Boatyard Co.\\nHamblett; Kerrigan & Hamblett {Mr. Joseph M. Kerrigan orally ), for the plaintiff.\\nNighswander, Lord & Martin and David J. KillKelley {Mr. KillKelley orally ), for the defendant.\", \"word_count\": \"1073\", \"char_count\": \"6498\", \"text\": \"Grimes, J.\\nThis matter began with an action to recover under a contract for the purchase of Mobil Oil Corporation products followed by a counterclaim for damages for an alleged breach. There was a trial by the Court resulting in a verdict for the plaintiff in the amount of $2,786.54. The exceptions of the defendant were transferred by Loughlin, J.\\nBy contract on a printed form dated September 1, 1964, the defendant agreed to purchase and the plaintiff to sell and deliver stated minimum and maximum amounts of specified products of the plaintiff which also agreed to loan defendant certain equipment. The original contract was to expire August 31, 1965, with successive one-year renewal options. However, on the same date (September 1, 1964), the parties signed a typed modification of the contract referred to as an improvement letter which stated that the plaintiff had made certain improvements on defendant's property at a cost of $4,400 and that the contract would continue in effect until August 31, 1969 and for successive similar renewal periods thereafter unless terminated by notice given 90 days prior to the end of any current renewal period. It provided also that \\\"seller may terminate at any time prior to normal expiration date . by written notice on default of buyer, or may suspend deliveries during default.\\\" It further provided that \\\"if the contract is terminated by the seller as a result of default on buyer's part prior to the normal expiration date, or if the contract is wrongfully terminated by buyer prior to the normal expiration date, the buyer shall pay the seller in cash a sum equal to $73.33 multiplied by the number of months between the date of earlier termination and the normal expiration date.\\\" It then provided that if the contract were performed up to its normal expiration date (August 31, 1969 ), the buyer would be under no obligation to reimburse the seller for the improvements. The printed contract provided that all notices \\\"shall be in writing and shall be delivered personally . or sent by registered or certified mail\\nThe printed contract also stated that defendant had \\\"a place of business at Rt. 11, Gilford, N. H. hereafter called premises\\\" and the plaintiff agreed to make \\\"Deliveries . at the premises.\\\"\\nOn September 1, 1964 at the time the contract was signed and for some time prior thereto, the defendant owned about two acres of land on the shore of the lake on part of which certain buildings, docks and other improvements were located, including the improvements furnished by the plaintiff under the contract. By deed dated September 17, 1965, defendant without notice to or knowledge of the plaintiff sold what was described on the defend - ant's corporate records as about one and a quarter acres including the improvements thereon to the State of New Hampshire for $120,000.\\nDefendant was permitted by the State to use the gasoline and oil storage and pumping facilities until July 1, 1966 when the State, which had a statewide contract with the plaintiff, started to have gasoline delivered to its premises for its use.\\nThe defendant's president, Mr. Goodhue, formed a new corporation which started selling gasoline of another supplier on a plot of land owned by Mr. Goodhue about 1,000 feet from the original location after plaintiff declined to service defendant und\\u00e9r the existing contract at the new location.\\nDefendant contends that this declination by plaintiff constituted a breach of the contract, claiming that the agreement called for delivery to defendant's \\\"place of business\\\" and that it was not limited to a particular location but applied to any location where defendant was carrying on its business and therefore obligated plaintiff to deliver to the new location. We cannot accept this interpretation of the agreement and we agree with the Trial Court. The printed contract and the so - called improvement letter should be read together as a single contract (Rivier College v. St. Paul Fire Ins. Co., 104 N. H. 398 ), the interpretation of which depends on the intention of the parties and not on any arbitrary rule to construe it strictly against the party who drew it as contended by the defendant. Aldrich v. Beauregard & Sons, 105 N. H. 330, 336, 200 A. 2d 14. We need not decide if such a rule is applicable to contracts when all other means of ascertaining the intent of the parties have failed, ( see Aldrich v. Beauregard & Sons, supra) because that is not the situation here.\\nPlaintiff agreed to make deliveries \\\"at the premises.\\\" The premises had been identified as the defendant's \\\"place of business at Rt. 11, Gilford, N. H.\\\" At the time the contract was made the defendant's \\\"place of business\\\" was the property which was subsequently sold to the State. It was on those premises that plaintiff had made the \\\"improvements\\\" and it was from the profits to the plaintiff made from deliveries to those premises that it had a right to expect payment for those improvements. The Trial Court correctly ruled that the plaintiff did not breach its agreement by failing to make deliveries under the contract to defendant's new location.\\nThis same interpretation of the agreement sustains the Trial Court's finding that the defendant had breached the contract. By the sale of \\\"the premises\\\" without any reservation of the right to use the gasoline and oil dispensing and storage facilities, the defendant made performance impossible. Although the State has by written agreement allowed the defendant to continue to use certain boat lift facilities and did allow it to continue to use the gasoline and oil facilities until it had need for such facilities beginning July 1, 1966, it was findable that after that date defendant was not permitted to dispense gasoline and oil on \\\"the premises\\\" to which the contract related. The defendant disabled itself from being able to perform and this constituted a wrongful termination under the contract so that no notice by the plaintiff was required. Lovering v. Lovering, 13 N. H. 513, 521; 17A C.J.S., Contracts, s. 470. The damages awarded by the Court were only the balance due on the cost of the improvements after giving credit to the defendant up to July 1, 1966.\\nExceptions overruled.\\nGriffith, J., did not sit; the others concurred.\"}"

nh/2361392.json

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+"{\"id\": \"2361392\", \"name\": \"Preston v. Cutter, Ex'r\", \"name_abbreviation\": \"Preston v. Cutter\", \"decision_date\": \"1888-12\", \"docket_number\": \"\", \"first_page\": 85, \"last_page\": \"86\", \"citations\": \"65 N.H. 85\", \"volume\": \"65\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:10:57.186923+00:00\", \"provenance\": \"CAP\", \"judges\": \"Smith, J., did not sit: the others concurred.\", \"parties\": \"Preston v. Cutter, Ex\\u2019r.\", \"head_matter\": \"Preston v. Cutter, Ex\\u2019r.\\nUpon a bill in equity against an executor to set aside conveyances made by the testator in fraud of his creditors, the plaintiff, prevailing, has execution for costs against the goods or estate of the deceased.\", \"word_count\": \"516\", \"char_count\": \"2867\", \"text\": \"Bingham, J.\\nThe plaintiff is administrator de bonis non, with the will annexed, of Franklin Munroe, and a creditor of the estate. The defendant is executor of the last will and testament of Mary R. Munroe, the widow of Franklin. The proceeding is in equity, to annul conveyances and transfers of property made and caused to be made by Franklin, fraudulent as against his creditors. The possession of the property passed to Mary at or about the time it was conveyed, and at the death of Mary it came to the defendant as the executor of her will. It appears in the record that the cause of action stated in the bill, answered by the defendant, heard and reported by the referee, and decided by the court, 64 N. H. 461, existed against the deceased, Mary R. Munroe. The decree was for the plaintiff, and he moved that execution issue for costs against the defendant de bonis propriis, which the court denied, and ordered execution against the goods and estate of the deceased, Mary R. Munroe.\\nGr. B. French, for the plaintiff.\\nE. S. H. A. Gutter, for the defendant.\\n.It is alleged among other things in the bill, and admitted in the answer, that a demand was made on the defendant for the property, and the plaintiff claims that this was sufficient to enable him to maintain the bill under G. L., c. 209, s. 2, and to have an execution for costs against the property of the defendant. This is not so in a bill in-chancery, when it appears from the entire record in the clerk's office that the cause of action heard and decided existed against the deceased. It is provided by statute that suits of attachment and executions against administrators, where the cause of action existed against the deceased, shall run only against the goods or estate of the deceased, and the administrator shall not be arrested, or his goods or estate levied upon, in such action. G. L., c. 198, s. 12; Pillsbury v. Hubbard, 10 N. H. 224; Keniston v. Little, 30 N. H. 324; Moulton v. Wendell, 37 N. H. 406; Folsom v. Blaisdell, 38 N. H. 100.\\nIn equity it is held that, where a plaintiff has slept upon his rights for a great number of years, and has allowed the defendant to suppose he would not enforce them, he will frequently, though successful, be deprived of costs. The Dublin Case, 41 N. H. 91, 95. Nothing appears in this case indicating that it is contrary to the ordinary principles of justice that the plaintiff's costs should be paid out of the property of the estate, or that the judgment and execution should not be in the usual form. Clement v. Wheeler, 25 N. H. 361, 368.\\nExceptions overruled.\\nSmith, J., did not sit: the others concurred.\"}"

nh/2507761.json

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+"{\"id\": \"2507761\", \"name\": \"Robert Therrien v. Mark F. Sullivan\", \"name_abbreviation\": \"Therrien v. Sullivan\", \"decision_date\": \"2006-01-27\", \"docket_number\": \"No. 2005-290\", \"first_page\": 211, \"last_page\": \"216\", \"citations\": \"153 N.H. 211\", \"volume\": \"153\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T02:31:59.926274+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dalianis, Duggan and Galway, JJ., concurred.\", \"parties\": \"Robert Therrien v. Mark F. Sullivan\", \"head_matter\": \"U.S. District Court\\nNo. 2005-290\\nRobert Therrien v. Mark F. Sullivan\\nArgued: October 20, 2005\\nOpinion Issued: January 27, 2006\\nDesfosses Law Firm, of Portsmouth (Sven D. Wiberg on the brief and orally), for the plaintiff.\\nNelson, Kinder, Mosseau & Saturley, P.C., of Manchester (John C. Kissinger, Jr. and Richard C. Bell, Jr. on the brief, and Mr. Kissinger orally), for the defendant.\", \"word_count\": \"1928\", \"char_count\": \"12447\", \"text\": \"Broderick, C.J.\\nPursuant to Supreme Court Rule 34, the United States District Court for the District of New Hampshire (McAuliffe, C.J.) certified to us the following questions of law:\\n1. In the context of a civil action for criminal legal malpractice, see, e.g., Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491 (1999), when does a criminal defendant's cause of action against his or her defense counsel accrue?\\n2. If the cause of action for criminal legal malpractice accrues upon the criminal defendant's discovery of the attorney's alleged negligence and the resulting harm, is the pertinent state limitations period tolled until the criminal defendant obtains-collateral relief from his or her underlying criminal conviction (thereby avoiding estoppel bars to proving actual innocence)?\\nFor the reasons stated below, we answer the first question that New Hampshire follows the \\\"bright-line\\\" or \\\"one track\\\" approach with respect to criminal legal malpractice claims; thus the limitation period would not accrue until the defendant obtained direct or collateral relief from his or her underlying criminal conviction. In light of our response to the first question, we need not address the second question.\\nThe district court's order provides the following facts. While living in Portsmouth, Robert Therrien allegedly forced the six-year-old victim to perform fellatio on him. Soon thereafter, the family moved to Maine. In 1995, the victim informed her mother about the alleged assault. Therrien was charged with that assault, but before he was brought to trial in New Hampshire, he was tried for other alleged sexual assaults committed' against the victim while the family was living in Maine. Therrien was acquitted of the Maine charges.\\nAt Therrien's later trial in New Hampshire, the jury was allowed to hear evidence of the alleged sexual assaults that occurred in Maine. Defense counsel was not, however, permitted to introduce evidence that Therrien was acquitted of those charges. In addition, over defense counsel's objection, the jury was allowed to hear testimony from the victim's social worker, who testified that Therrien had abused the victim until she was thirteen years old. In March of 1997, Therrien was convicted of aggravated felonious sexual assault and was sentenced to serve seven and one-half to fifteen years in prison.\\n. On direct appeal to this court, Therrien, represented by different counsel, asserted that the trial court erred in admitting evidence of other bad acts, including the alleged sexual assaults that occurred in Maine, without permitting him to introduce evidence that he had been acquitted of those charges. State v. Therrien, 144 N.H. 433, 434 (1999). He also argued on appeal that the trial court erred in allowing the victim's therapist to testify about multiple incidents of uncharged abuse. Id. We affirmed Therrien's conviction, concluding that the victim's testimony about the previous sexual assaults in Maine amounted to harmless error. Id. at 436. In addition, we concluded that Therrien failed to preserve for appeal his objections to; (1) the trial court's ruling precluding the introduction of evidence of his acquittal on the Maine charges; and (2) the introduction' of the social worker's testimony. Id. at 437-38.\\nFollowing our decision, Therrien sought collateral relief in the State trial court, claiming that he had been denied effective assistance of counsel during his first trial. Therrien's motion for a new trial was denied by the trial court based upon its finding that he had been provided constitutionally adequate representation. We vacated that holding because the trial court failed to conduct an evidentiary hearing on the matter prior to its ruling. State v. Robert Therrien, No. 2000-579 (N.H. Oct. 1, 2001). The case was then transferred to a second judge, an evidentiary hearing was held, and the court found that counsel provided constitutionally deficient representation. State v. Therrien, No. 96-S-541 (N.H. Super. Ct. May 7, 2002). Accordingly, the court vacated Therrien's conviction and granted his motion for a new trial. The State, however, declined to reprosecute. By that time, Therrien had already served approximately five years in prison.\\nOn January 28, 2004, Therrien filed his diversity action against his former attorney, Mark Sullivan, claiming that he is actually innocent of the charges brought against him and that Sullivan's deficient representation proximately caused his allegedly wrongful conviction and incarceration. Sullivan moved to dismiss on the grounds that Therrien's action is barred by the applicable limitation period.\\nIn this State, a civil malpractice action requires proof of (1) an attorney-client relationship, which triggers a duty on the part of the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client, (2) a breach of that duty, and (3) resultant harm legally caused by the breach. Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491, 495-96 (1999). A criminal malpractice action alleging false conviction requires identical proof and, in addition, requires the claimant to prove, by a preponderance of the evidence, actual innocence. Id. at 496. It is not sufficient for a claimant to prove that if counsel had acted differently, legal guilt would not have been established. Id. As a matter of law, the gateway to damages will remain closed unless a claimant can establish that he or she is, in fact, innocent of the conduct underlying the criminal charge. Id.\\nAn action for malpractice is governed by RSA 508:4 (1997), which establishes a three-year limitation period for all personal injury actions. Furbush v. McKittrick, 149 N.H. 426, 430 (2003). A cause of action arises, thereby triggering the running of the three-year statute, once all the elements necessary for such a claim are present. See Shaheen, Cappiello, Stein & Gordon v. Home Ins. Co., 143 N.H. 35, 40 (1998). A cause of action for legal malpractice in a civil proceeding accrues when an attorney breaches a professional duty, damages occur as a result, and the claimant knows or should know of the injury and its cause. See id; Conrad v. Hazen, 140 N.H. 249, 251-52 (1995).\\nWe have not yet addressed when a cause of action for legal malpractice in a criminal proceeding accrues. Among those jurisdictions which have considered it, there is a decided lack of agreement. Many jurisdictions follow the so-called \\\"bright-line\\\" or \\\"one-track\\\" approach that requires a convicted criminal defendant to obtain post-conviction relief before a cause of action for legal malpractice accrues. See, e.g., Shaw v. State, Dept. of Admin., PDA, 816 P.2d 1358, 1360 (Alaska 1991); Steele v. Kehoe, 747 So. 2d 931, 933 (Fla. 1999). Other courts, however, have adopted a \\\"two-track approach,\\\" holding that a cause of action for malpractice accrues as soon as a defendant becomes aware of his or her attorney's negligence and the resulting injury. See, e.g., Morrison v. Goff, 91 P.3d 1050, 1055-58 (Colo. 2004); Ereth v. Cascade County, 81 P.3d 463, 469-70 (Mont. 2003). After considering our decision in Mahoney, which sets out the elements for criminal legal malpractice, including actual innocence, and reviewing case law from other jurisdictions, we adopt the reasoning of the \\\"bright-line\\\" or \\\"one track\\\" approach. Because the elements as defined in Mahoney would be present at the time of the defendant's conviction, we further hold that post-conviction relief is also required as an element of criminal legal malpractice.\\nWe are persuaded by the reasoning of the Supreme Court of Minnesota, which held that until appellate or collateral relief is obtained with regard to the underlying conviction, a claim for criminal malpractice cannot survive a motion to dismiss. See Noske v. Friedberg, 670 N.W.2d 740, 744-45 (Minn. 2003). The Minnesota Court reasoned that\\nas long as a valid criminal conviction is in place a legal malpractice cause of action based on a defense counsel's ineffective assistance cannot withstand a Rule 12.02(e) motion to dismiss.\\n. [B]y precluding claims from proceeding in which a plaintiff's criminal conviction has not been overturned and will likely never be overturned, our decision comports with another fundamental policy of the statute of limitations, which is to permit the judicial system to husband its limited resources. Therefore, in this case, the policy against allowing a defendant to collaterally attack a valid criminal conviction in a subsequent civil proceeding outweighs the policy of preventing stale claims.\\nId. at 745-46 (citation and quotation omitted); see Canaan v. Bartee, 72 P.3d 911, 921 (Kan.) (\\\"We hold that before [a criminal defendant] may sue his attorneys for legal malpractice he must obtain post-conviction relief.\\\"), cert. denied, 540 U.S. 1090, 1090 (2003); Adkins v. Dixon, 482 S.E.2d 797, 801 (Va. 1997) (\\\"Since successful termination of [post-conviction collateral challenges to the conviction] is part of [plaintiff's] cause of action, he has no right of action until that time and, thus, the statute of limitations does not begin to run until termination of the post-conviction proceeding.\\\"); Stevens v. Bispham, 851 P.2d 556, 566 (Or. 1993) (\\\"We hold that, in order for one convicted of a criminal offense to bring an action for professional negligence against that person's criminal defense counsel, the person must, in addition to alleging a duty, its breach, and causation, allege 'harm' in that the person has been exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise.\\\"). Among the justifications for this approach, the court in Noske also noted: \\\"equitable principles; the difficulties of proving causation and damages in a criminal malpractice case where the plaintiff has not yet been exonerated; the existence of comprehensive post-conviction review; and collateral estoppel.\\\" Noske, 670 N.W.2d at 745 (quotation, ellipsis, and brackets omitted).\\nThe defendant contends that even when a plaintiff's attempts to obtain post-conviction relief \\\"outlast the statute of limitations, the plaintiff is not without a remedy.\\\" He argues that \\\"there is nothing prohibiting the plaintiff in such circumstances from filing the action within the statute of limitations, and simultaneously moving to stay the malpractice action while the plaintiff seeks post-conviction relief.\\\" We reject this argument. As the court in Noske observed:\\n[Allowing a criminal defendant-plaintiff to commence a legal malpractice action before obtaining post-conviction relief in the criminal matter and then staying the malpractice action until the issue of post-conviction relief in the criminal matter is settled would squander scarce judicial resources.\\nId. at 744 n.3.\\nWe recognize, as the defendant argues, that one of the fundamental principles of the statute of limitations is to \\\"eliminate stale claims and grant repose to liability that otherwise would linger on indefinitely.\\\" Id. at 746. However, in cases such as this, \\\"where [the] attorney's malpractice occurs during litigation, the dangers associated with delay are lessened because a record will have been made of the actions which form the substance of the later malpractice action.\\\" Amfac Distribution Corp. v. Miller, 673 P.2d 795, 798 (Ariz. Ct. App. 1983). Accordingly, the policy against allowing a defendant to collaterally attack a valid criminal conviction in a subsequent civil proceeding outweighs the policy of preventing stale claims.\\nOur holding today is a recognition that as long as a valid criminal conviction is in place, a legal malpractice cause of action based on a defense counsel's ineffective assistance resulting in that conviction cannot withstand a motion to dismiss. Accordingly, we conclude that an action for criminal legal malpractice does not accrue until a criminal defendant receives post-conviction relief.\\nRemanded.\\nDalianis, Duggan and Galway, JJ., concurred.\"}"

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+"{\"id\": \"3027947\", \"name\": \"Petition of the State of New Hampshire (State v. Fischer)\", \"name_abbreviation\": \"State v. Fischer\", \"decision_date\": \"2005-05-12\", \"docket_number\": \"No. 2003-757\", \"first_page\": 205, \"last_page\": \"215\", \"citations\": \"152 N.H. 205\", \"volume\": \"152\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T17:49:39.962585+00:00\", \"provenance\": \"CAP\", \"judges\": \"Duggan and Galway, JJ., concurred; Nadeau, J., dissented.\", \"parties\": \"Petition of the State of New Hampshire (State v. Fischer)\", \"head_matter\": \"Strafford\\nNo. 2003-757\\nPetition of the State of New Hampshire (State v. Fischer)\\nSubmitted: January 19, 2005\\nOpinion Issued: May 12, 2005\\nKelly A. Ayotte, attorney general (Peter K. Odom, assistant attorney general, on the brief), for the State.\\nDavid Fischer, by brief, pro se.\", \"word_count\": \"4214\", \"char_count\": \"25398\", \"text\": \"Dalianis, J.\\nIn this petition for writ of certiorari, the State of New Hampshire (State) seeks review of a decision of the Superior Court (Fauver, J.) to suspend two and one-half years of the defendant's sentence. See RSA 651:20,1 (1996). We reverse.\\nIn November 1996, the defendant, David Fischer, was convicted of attempted first-degree assault, see RSA 629:1 (1996); RSA 631:1 (1996), and witness tampering, see RSA 641:5 (1996). The Superior Court (Mohl, J.) imposed a sentence of seven and one-half to fifteen years on the attempted first-degree assault offense, and a consecutive sentence of three and one-half to seven years on the witness tampering offense. In February 2001, the defendant filed a petition for suspension of his sentence. On June 4,2001, the court denied the petition, but it granted the defendant leave to refile his petition to suspend sentence after May 15,2008.\\nOn March 26, 2003, the defendant filed a second petition to suspend sentence. On June 18,2003, the court issued an order scheduling a hearing and noting that the State had failed to respond to the defendant's petition. On June 25, 2003, the court received the State's objection, dated April 4, 2003, to the defendant's petition. The objection contained no explanation why a response had not been filed earlier. The objection did specify that a copy had been sent to the defendant's counsel, though defense counsel stated at the hearing that neither he nor the defendant ever received a copy of the objection.\\nOn July 23,2003, the court held a hearing, at which the State argued, for the first time, that the court lacked statutory authority under RSA 651:20, I, to hear the defendant's petition. The defendant objected on two grounds. First, he argued that the State had not filed a timely objection to his March 26, 2003 petition to suspend sentence. Second, he objected to the State's failure to raise the issue of the court's statutory authority under RSA 651:20,1, in its written objection.\\nAs to the defendant's first objection, the court concluded that it would \\\"find that the fact that [the State's written objection] did not enter into the file . was certainly not an intentional matter by the county attorney's office; it could have been the court's filing; it could have been the county attorney's failure.\\\" The court allowed the hearing to continue, noting that the defendant had not been prejudiced in any way. As to the second objection, the court offered the defendant ten days to file a memorandum on the issue. The defendant did not file a memorandum.\\nOn September 3, 2003, the court issued an order suspending two and one-half years of the defendant's witness tampering sentence. The court sent the order to the State in the form of a \\\"Notice of Amendment to Sentence\\\"; however, the notice was not signed or dated by the clerk of the court. On September 17, 2003, the State filed a motion for reconsideration of the court's order, which was denied on October 20, 2003. On November 19, 2003, the State filed a petition for writ of certiorari arguing that the trial court lacked statutory authority under RSA 651:20,1, to suspend the defendant's sentence.\\nWe will first address the defendant's argument that the State's petition for writ of certiorari is untimely. Second, we will address the defendant's argument that the State is procedurally barred from contesting his petition. Third, we will address the State's argument that the trial court exceeded the statutory authority provided by RSA 651:20, I, when it accepted and granted the defendant's March 26, 2003 petition to suspend sentence. The final issue we will address is the defendant's argument that RSA 651:20,1, is ambiguous and cannot be interpreted to bar his petition.\\nThe defendant argues that the State's petition for writ of certiorari was not timely filed. Appeals by the State in criminal cases are normally governed by RSA 606:10 (2001). In the present case, however, RSA 606:10 does not provide the State with any recourse. Thus, the State petitioned this court to exercise its original jurisdiction. See RSA 490:4 (1997).\\nPetitions requesting this court to exercise its original jurisdiction are governed by Supreme Court Rule 11. Supreme Court Rule 11 does not contain a filing deadline. We have exercised our discretion in the past to bar petitions for writ of certiorari when such petitions were filed after an unreasonable period of time. We have ruled that the reasonable period for filing a petition for writ of certiorari should be determined by the appeal period set out in a substantially analogous statute or situation. Chauffeurs Local Union No. 633 v. Silver Bro's, Inc., 122 N.H. 1035, 1037 (1982).\\nLike Supreme Court Rule 11, RSA 606:10, which governs appeals by the State, does not contain a filing deadline. With respect to RSA 606:10 appeals, we have stated: \\\"Although the Supreme Court Rules do not specify a time limit for the filing of appeals, by the State, they provide time limits for the filing of appeals generally.\\\" State v. Dukette, 145 N.H. 226, 228 (2000). \\\"Because the policy behind time limits for appeals filed under our rules would similarly apply to RSA 606:10 appeals,... appeals filed by the State pursuant to RSA 606:10 are subject to the same timeliness requirements that govern all supreme court appeals under Supreme Court Rules 7-9.\\\" Id.\\nRSA 606:10 appeals are substantially analogous to the petition for writ of certiorari in this case'. As such, this petition should be governed by Supreme Court Rule 7, which provides time limits applicable to appeals under RSA 606:10. Cf. Dukette, 145 N.H. at 228 (applying Rule 7 to RSA 606:10 appeals). Supreme Court Rule 7(1) provides that a notice of appeal shall be filed within thirty days of a \\\"decision on the merits,\\\" except that \\\"[a] timely filed post-trial motion shall stay the running of the appeal period.\\\"\\nIn this case, though the State did not file its appeal within thirty days of the court's September 3, 2003 decision, the State argues that its September 17, 2003, post-trial motion for reconsideration was timely filed and should stay the running of the appeal period. Superior Court Rule 59-A provides that \\\"[a] motion for reconsideration . shall be filed within ten (10) days of the date of the Clerk's written notice of the order or decision.\\\" (Emphasis added.) In this case, the State received a copy of the \\\"Notice of Amendment to Sentence\\\" on September 8, 2003. The notice, however, contained neither the signature of the clerk nor the date upon which the notice was issued. Instead, it merely contained the date of the order, September 3, 2003. The notice sent to the department of corrections, however, did contain the clerk's signature and the date of September 4, 2003.\\nThe defendant argues that we should use the date of the order, September 3,2003, or, in the alternative, September 4,2003, as the date of the clerk's written notice of the order. Under such an analysis the State's motion for reconsideration would have been untimely, as September 17, 2003, is more than ten days after either September 3 or September 4. The defendant argues that the State's petition for writ of certiorari would then be untimely, as the appeal period would not have been stayed. The State, on the other hand, argues that the date that it received the notice, September 8,2003, is the date from which it had ten days to file its motion for reconsideration, because the notice of the order that it received did not have a date. Using the State's analysis, its September 17, 2003 post-trial motion would have been timely, and would have stayed the running of the appeal period.\\nWe need not determine which date to use for the purpose of calculating whether the State's motion for reconsideration was timely, because Supreme Court Rule 1 provides that we may suspend the requirements of our rules for good cause shown. Although it may have been advisable for the State to contact the court to clarify the date that it should use, and although under the 2003 version of Supreme Court Rule 21(6), then in effect, \\\"[m]otions to extend time to file an appeal document and motions for late entry of an appeal document are not favored,\\\" given the State's short delay in filing its motion for reconsideration, which was caused by confusion created by an error of the court, we hold that the State has demonstrated good cause to suspend the time limits for the filing of its petition.\\nNext, the defendant argues that the State is procedurally barred from contesting his petition on two grounds. First, he contends that the trial court erred by allowing the State to contest his March 2, 2003 petition because the State did not file an objection until June 25,2003, and because that written objection did not argue that the court's order violated RSA 651:20,1. The defendant also argues that the State failed to send a copy of its objection to him or his counsel.\\nIn order for the defendant to prevail on these arguments, he must demonstrate that the trial court's rulings were clearly untenable or unreasonable to the prejudice of his case. Rodriguez v. Webb, 141 N.H. 177, 179 (1996). Here the defendant has not argued that he has suffered any prejudice from the trial court's rulings. Therefore, the defendant has not demonstrated that the court committed reversible error.\\nSecondly, the defendant argues that the State should have appealed the trial court's June 2001 order, in which the court granted the defendant leave to refile his petition after May 15,2003, or at least should have filed a motion for reconsideration from that order. The defendant relies upon language in the trial court's October 20, 2003 order in which it concluded that the State's procedural objections were untimely because the State neither appealed the June 2001 order nor filed a motion for reconsideration. We disagree with both the defendant and the trial court because the issue at hand was not ripe for judicial review until the defendant actually refiled his petition.\\nThough we have not adopted a formal test for ripeness, we have stated that we find persuasive the two-pronged analysis used by other jurisdictions that evaluates the fitness of the issue for judicial determination and the hardship to the parties if the court declines to consider the issue. Appeal of State Employees' Assoc., 142 N.H. 874, 878 (1998). With respect to the first part of the analysis, fitness for judicial review, \\\"[a] claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.\\\" Standard Alaska Production Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989).\\nA case may lack ripeness, however, even when it involves a final . action presenting a purely legal question. The second prong of the ripeness test requires that the contested action impose an impact on the parties \\\"sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.\\\"\\nAlascom, Inc. v. F.C.C., 727 F.2d 1212, 1217 (D.C. Cir. 1984) (quoting Abbott Laboratories v. Gardener, 387 U.S. 136, 152 (1967)).\\nEven assuming the issue before us meets the first part of the analysis, it fails to meet the second part of the analysis because the State faced no immediate hardship at the time the court issued its June 2001 order. At that, time, the impact of the court's grant of prospective relief was merely speculative, as it was uncertain whether the defendant would refile his petition and, if he did, what, action the court would take. The State suffered no hardship until the defendant refiled his petition and the court accepted it. As such, the State appropriately waited until the defendant refiled his petition to file its objection and later appeal when the court granted him relief.\\nTurning to the merits, we now consider the State's argument that the trial court exceeded its statutory authority under RSA 651:20, I. The defendant argues that the trial court properly exercised its broad discretion to suspend his sentence.\\nIn matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. In interpreting a statute, we first look to the language of the statute itself and, if possible, construe that language according to its plain and ordinary meaning. Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 318 (2004). We review the trial court's interpretation of a statute de novo. Id. at 318-19.\\nThe trial court stated that it could accept the defendant's petition to suspend sentence prior to the expiration of the three-year waiting period because, when the court denied the defendant's first petition to suspend sentence, the court did so with the qualification that he could bring a new petition after May 15, 2003. Thus, the court concluded that it \\\"in effect extended this time for consideration of the motion ruled on in June, 2001.\\\"\\nSentencing is not about one decision made at a single time and place, but about a process that involves a number of interrelated decisions that may span several years in a given case and involve a number of different decision makers. State v. Kierstead, 141 N.H. 803, 804 (1997). The legislature has vested in the trial court the power to adapt sentencing to best meet the constitutional objectives of punishment, rehabilitation and deterrence \\u2014 within these parameters, the judge has broad discretion to assign different sentences, suspend sentence, or grant probation. Id. Nonetheless, the legislature may circumscribe the court's power to suspend to a greater or lesser degree, provided that the sentencing process as a whole complies with the requirements of due process and with other constitutional constraints. State v. Callaghan, 125 N.H. 449, 451-52 (1984).\\nRSA 651:20 has been amended many times, with four versions being relevant to the issue in this case. The current version of RSA 651:20 is plain and easy to interpret; this is even more evident when we contrast each successive version of RSA 651:20 with its predecessors. The earliest version of RSA 651:20 provided, \\\"Notwithstanding any other provision of law, the sentence to imprisonment of any person may be suspended, at the time of sentence or at any time while any part remains unserved .\\\" RSA 651:20 (Supp. 1972) (emphasis added). Under this version, the court had the power to suspend the defendant's sentence and could exercise that power at any time.\\nThe second version of RSA 651:20 provided, \\\"Notwithstanding any other provision of law, the sentence to imprisonment of any person may be suspended, at the time of sentence or no later than 180 days after imposition of the sentence, unless otherwise ordered by the court at the time of sentencing____\\\" RSA 651:20 (Supp. 1979) (emphasis added). As in the first version, the trial court continued to possess the power to suspend a sentence; however, in the second version the legislature limited the time during which the court may exercise that power. Under the second version, unless the court ordered otherwise at the time of sentencing, it had to exercise its power either at the time of sentencing or within 180 days after the imposition of the sentence.\\nThe third version of RSA 651:20 provided:\\nNotwithstanding any other provisions of law, the sentence to imprisonment of any person may be suspended, at the time of sentence unless otherwise ordered by the court, or at any time while any part of the sentence remains unserved, but a petition to suspend sentence may not be brought less than 2 years after commencement of said sentence nor more frequently than every 2 years thereafter.\\nRSA 651:20 (Supp. 1992). There are two important changes evident in the third version. First, the language regarding the time during which the court could exercise its power reverted back to the first version. Thus, a court could once again exercise its power at any time while a portion of the defendant's sentence remained unserved. Second, and different from the previous two versions of the statute, the third version restricted the times at which a defendant could petition the court for suspension by allowing a petition only once every two years.\\nFinally, the present version of RSA 651:20 provides, in pertinent part:\\nNotwithstanding any other provision of law, except as provided in subparagraphs (a), (b), and (c), the sentence to imprisonment of any person may be suspended by the sentencing court at the time of imposition of the sentence or at any time thereafter in response to a petition to suspend sentence which is timely brought in accordance with the limitations set forth below in subparagraphs (a), (b), and (c).\\n(a) Any person sentenced to state prison shall not bring a petition to suspend sentence until such person has served at least 4 years or 2/3 of his minimum sentence, whichever is greater, and not more frequently than every 8 years thereafter.\\n(d) Petitions filed which do not meet the criteria in (a), (b), or (c) above shall be dismissed without a hearing.\\nRSA 651:20,1 (emphasis added).\\nAs in the third version of RSA 651:20, the court continues to have the power to suspend a sentence; however, the legislature has limited the time during which the court may exercise that power by allowing a court to suspend a defendant's sentence only at the time of the imposition of the sentence or in response to a petition that has been properly filed. Therefore, unlike the first and third versions of RSA 651:20, which allowed a court to exercise its power at any time, under the present version of the statute, unless the court acts to suspend a sentence at the time of its imposition, the court may not exercise its power to suspend a sentence unless that power is triggered by a properly filed petition.\\nThe present version of the statute also further restricts the times at which a defendant can petition the court for suspension by prohibiting him from filing a petition until he has served either four years or two-thirds of his sentence, whichever is greater, and not more frequently than every three years thereafter, as compared to the two-year limit that was established in the third version of RSA 651:20.\\nIn the present case, the court acted outside of its authority by exercising its power in response to an impermissibly filed petition. The statute mandates, as expressed in RSA 651:20,1(a), (d), that persons shall not bring a petition to suspend sentence more frequently than every three years after their first petition, and that persons who do so shall have their petition dismissed without a hearing. The legislature's use of the word \\\"shall\\\" indicates that the three-year waiting period is a mandatory requirement. Carter v. Lachance, 146 N.H. 11, 13 (2001). Thus, the trial court had no discretion to grant the defendant leave to refile his petition less than three years after the previous petition. Therefore, we hold that the court erred as a matter of law when it failed to dismiss the defendant's petition.\\nThis is not to say, however, that a court's power to suspend a sentence has necessarily been diminished by the current version of RSA 651:20, as opposed to merely having been channeled. A court that is considering suspending a defendant's sentence, which does not believe that the defendant deserves an unconditional sentence suspension, but which believes that waiting three years for the defendant to refile a petition would be unjust, may still possess procedurally correct options to accomplish its goal. For example, a court might issue an order in which it acts to suspend a defendant's sentence conditioned upon the occurrence of future events, such as the defendant demonstrating good behavior and completing treatment and/or education programs.\\nFinally, the defendant argues that RSA 651:20, 1(a) is ambiguous and cannot be interpreted to bar his petition. He argues that the word \\\"sentence\\\" is not clearly defined, and thus one cannot tell whether it refers to each individual sentence or the cumulative sentence.\\nThe defendant contends that \\\"sentence\\\" should refer to the cumulative sentence rather than each individual sentence. His cumulative sentence in this case was eleven to twenty-two years. Two-thirds of the minimum cumulative sentence is seven and one-third years. It appears that the defendant argues that he could have brought a petition after July 10,2003, because at that time he would have served seven and one-third years. We need not evaluate this argument for two reasons. First, the defendant filed his petition to suspend sentence on March 26, 2003, and, thus, even under the defendant's interpretation, that filing would have been premature. Second, the defendant overlooks the fact that he had already filed a petition to suspend sentence after he had served five years of his sentence for attempted first-degree assault. Thus, the defendant established the time frame by assuming that \\\"sentence\\\" referred to each individual sentence when he filed his initial petition. Therefore, the defendant could not refile a petition until three years after his initial petition.\\nAlthough the defendant raises several other arguments on appeal, we find that these arguments are without merit and warrant no further discussion. Vogel v. Vogel, 137 N.H. 321, 322 (1993).\\nReversed.\\nDuggan and Galway, JJ., concurred; Nadeau, J., dissented.\"}"

nh/4146849.json

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+"{\"id\": \"4146849\", \"name\": \"David Fischer v. Superintendent, Strafford County House of Corrections\", \"name_abbreviation\": \"Fischer v. Superintendent, Strafford County House of Corrections\", \"decision_date\": \"2012-04-20\", \"docket_number\": \"No. 2010-737\", \"first_page\": 515, \"last_page\": \"521\", \"citations\": \"163 N.H. 515\", \"volume\": \"163\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:43:08.023769+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dalianis, C.J., and Conboy and Lynn, JJ., concurred.\", \"parties\": \"David Fischer v. Superintendent, Strafford County House of Corrections\", \"head_matter\": \"Strafford\\nNo. 2010-737\\nDavid Fischer v. Superintendent, Strafford County House of Corrections\\nArgued: February 9, 2012\\nOpinion Issued: April 20, 2012\\nDavid Fischer, by brief, pro se, and Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the petitioner.\\nSoldati Law Offiees, P.A., of Portsmouth (Lincoln T. Soldati on the brief and orally), for the respondent.\", \"word_count\": \"2565\", \"char_count\": \"15589\", \"text\": \"Hicks, J.\\nThe petitioner, David Fischer, appeals orders of the Superior Court {Brown and Wageling, JJ.) on his motions for pretrial bail, claiming that the court delegated authority to Strafford County Community Corrections (SCCC), which is managed by the respondent, Superintendent, Strafford County House of Corrections, and part of the executive branch, in violation of the separation of powers doctrine. We affirm.\\nThe following facts are either undisputed or supported in the record. On February 19,2010, the petitioner was arrested on charges of second degree assault, a class B felony, see RSA 631:2 (Supp. 2011), and six related misdemeanors. Bail was set by the Dover District Court {Cappiello, J.) at $75,000 cash, subject to certain conditions, including, if the petitioner posted bail, supervision by SCCC with a sobrietor, GPS monitoring, and a mental health referral. Bail was continued by the Court (Weaver, J.) on March 5, 2010.\\nThe petitioner filed a motion in superior court for an amendment of bail, arguing that $75,000 cash bail was excessive and that he was entitled to personal recognizance (PR) bail, pursuant to RSA 597:2 (Supp. 2011). He proposed that he would reside with his mother in Rochester.\\nFollowing a hearing on May 3, the Court {Brown, J.) ordered that bail would \\\"remain as is\\\" at $75,000 cash with the stated conditions, and scheduled a further hearing. Judge Brown issued an amended order on May 6, lowering the cash bail to $50,000 and setting conditions, if bail was posted, including that the petitioner: (1) \\\"live at: his mother's house on house arrest to leave for mental health counseling only\\\"; (2) refrain from using drugs and alcohol and \\\"[sjubmit to random drug [and] alcohol tests\\\"; and (3) be \\\"supervised [and] electronically monitored by SCCC [with] GPS, Sobrietor [and] Mental Health Refera[l].\\\"\\nOn June 1, Judge Brown again ruled that bail would remain as is and ordered a further hearing at a time the defendant's therapist would be available to testify. At that subsequent hearing, on June 15, Judge Brown ruled as follows from the bench:\\nWhat we're going to do, Mr. Fischer, is that it's going to stay at 50,000 cash to convert to personal recognizance upon verification of residence, which I don't think is going to be a problem because it's your mother's residence, and confirmation of an existing and ongoing mental health and medical appointments.\\nSo you'll be released on a GPS[,] Sobrietor, administrative home confinement, basically house arrest. You'll be able to leave the residence for mental health, medical, consult with counsel, and meeting with [SCCC]. But other than those \\u2014 unless counsel sees any other exceptions, I'll listen to that, but those are the only exceptions, and no contact with the victim.\\nThe written order of same date stated that bail was set at $50,000 cash \\\"[t]o convert to PR if found acceptable] by SCCC \\u2014 Whether Bail is Posted or Converted all conditions apply.\\\" (Capitalization omitted.) Those conditions included supervision by SCCC \\\"upon verification of address,\\\" refraining from drugs and alcohol, and submission to random drug and alcohol testing.\\nFor reasons the parties disputed, but which are unnecessary to recount here, placement of the petitioner with his mother became infeasible. The petitioner moved to amend his bail conditions, proposing to live at a certain residence in Massachusetts. The State objected and the motion was denied without a hearing on July 7, 2010. On August 25, the petitioner moved for a bail hearing, this time proposing to reside in Rochester. The State again objected and the matter was heard by Judge Wageling on September 1.\\nAt the hearing, the petitioner alleged that SCCC was being unreasonable in repeatedly finding his proposed residences inappropriate. His counsel argued that SCCC \\\"doesn't have the authority to decide bail conditions, and this Court can order that he be monitored by [SCCC] with the conditions set by Judge Brown.\\\" Judge Wageling denied the motion, stating, in part, that she would intervene if SCCC were shown to be violating its own policies. She stated further, \\\"Otherwise, I'm going to leave it to [SCCC's] discretion to apply their rules. It's the separation of powers doctrine, as far as I'm concerned.\\\"\\nAt least one additional pre-trial motion by the petitioner to amend bail was denied, and, although the record does not indicate the entire disposition at trial, it appears that the petitioner was convicted on at least one felony charge. A post-verdict bail hearing was held before Judge Brown on December 9, 2010. The court declined to modify bail, stating from the bench:\\nI am not going to exercise my discretion and order [SCCC] to do anything. I have a bail order that's been in place since June 15th, 2010, and that remains in place as is.\\nI'm just not going to order [SCCC] to do something it is not inclined to do. I have the power, and I have the discretion to do that, but I'm not going to in this case. The bail remains as is.\\nThis appeal followed. We accepted a single question for review: \\\"Whether the court's delegation to SCCC of the ultimate authority to determine whether the petitioner is released on personal recognizance bail is an unconstitutional delegation of judicial authority.\\\"\\nAs a preliminary matter, the petitioner asks us to rule that the issue he presents is not moot for two reasons. First, because Judge Brown considered the pre-trial bail order still in effect post-conviction, resolution of the issue \\\"could affect whether [the petitioner] obtains release on bail pending appeal.\\\" Second, he contends that the question of SCCC's power to determine conditions of release on bail is likely to recur, but evade appellate review given that SCCC may not reach a decision about pre-trial detention in any particular case \\\"until shortly before trial, at which point the value to the defendant of pre-trial release has been almost entirely lost.\\\"\\n\\\"[T]he question of mootness is not subject to rigid rules, but is regarded as one of convenience and discretion.\\\" Batchelder v. Town of Plymouth Zoning Bd. of Adjustment, 160 N.H. 253, 255-56 (2010) (quotation omitted). Because this case presents an issue \\\"capable of repetition, yet evading review,\\\" State v. Gagne, 129 N.H. 93, 98 (1986) (quotation omitted), we conclude that it is not moot and will decide it on the merits.\\nThe petitioner argues that the trial court's delegation to SCCC of the authority to determine whether to release him on personal recognizance bail violated the principle of separation of powers. The separation of powers doctrine is embodied in Part I, Article 37 of our State Constitution, which provides:\\nIn the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.\\n\\\"Separation of powers is an integral part of our governmental system of checks and balances: each branch of government acts as a check on the other, protecting the sovereignty and freedom of those governed by preventing the tyranny of any one branch of the government being supreme.\\\" Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562, 568 (1997). Thus, under the Separation of Powers Clause, \\\"each branch is prohibited . . from encroaching upon the powers and functions of another branch.\\\" Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 746-47 (2007). Nevertheless, Part I, Article 37 does \\\"not provide for impenetrable barriers between the branches... and the doctrine is violated only when one branch usurps an essential power of another.\\\" Id. at 747 (citation omitted). In addition, \\\"we have always recognized that the doctrine does not require an absolute division of powers, but a cooperative accommodation among the three branches of government.\\\" Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. at 569. \\\"In the connection between the departments some overlapping is permissible, and there is a region of authority, alternative and concurrent, the boundaries of which are fixed by no final rule.\\\" Opinion of the Justices, 87 N.H. 492, 493 (1935).\\nThe petitioner's argument rests upon the premise that \\\"[t]he power to determine the conditions on a defendant's right to pre-trial release belongs to the judiciary.\\\" He recognizes that some overlapping of authority is permissible, conceding that \\\"the legislative branch has a role in defining the general conditions in which bail is available, and . . . the executive branch has a role in supervising persons released on bail,\\\" but maintains that \\\"the courts have the power in individual cases to set the terms of bail.\\\" He asserts, therefore, that while SCCC may make recommendations to the court regarding bail conditions, it cannot exercise the power to set bail conditions, either ultimately, or even in the first instance subject to review by a court. He concludes that, \\\"because the superior court. . . effectively cede[d] to SCCC the power to decide whether [his] cash bail would convert to PR bail, this Court must find a violation of the principle of the separation of powers.\\\"\\nThe respondent does not challenge the petitioner's premise, but rather disputes that the court delegated any authority to SCCC. He argues that the petitioner \\\"has taken a few words in the Court's bail order out of context in an attempt to manufacture a constitutional issue of separation of powers.\\\" He asserts that \\\"[n]either the express statements of the Court's intent as stated in the bail hearings nor the actual manner in which the SCCC[] [program] operates support finding a violation of the separation of powers doctrine.\\\"\\nOur first task, then, is to determine the import of the court's orders.\\nThe interpretation of a court order is a question of law, which we review de novo. In construing a court order, we look to the plain meaning of the words used in the document. We construe subsidiary clauses so as not to conflict with the primary purpose of the trial court's decree. As a general matter, a court decree or judgment is to be construed with reference to the issues it was meant to decide.\\nAppeal of Langenfeld, 160 N.H. 85, 89 (2010) (citations omitted). Our task is complicated by the number of times the issue of bail came before the court. The petitioner himself states that \\\"the court, the State, and SCCC described SCCC's role in different ways at different times.\\\" The actual bail order, however, that remained in place from June 15, 2010, through the court's last hearing on the matter on December 9, 2010, set bail at $50,000 cash with conditions, \\\"to convert to PR if found acceptable] by SCCC.\\\" (Capitalization omitted.) The issue is therefore whether the phrase \\\"if found acceptable by SCCC\\\" ceded to SCCC any authority that violates the separation of powers doctrine.\\nTo support its contention that the court in effect ceded to SCCC the authority to determine conditions of release, the petitioner argues that the court apparently believed that SCCC possessed that power in any event. The petitioner argues that \\\"the court, at times, indicated that principles of separation of powers might preclude the court from overriding SCCC's intentions as to the conditions of release.\\\" The petitioner cites, for instance, a portion of the record in which the court stated:\\n[The bail order] says that [the petitioner's] bail is going to be set at $50,000 cash only subject to the conditions listed below, to convert to PR if found acceptable by [SCCC].\\nNow, similarly to the separation of power that exists with regard to jails, I can't order a jailer to release a defendant on good time credit. It's thoroughly at the discretion of the jailer whether or not someone is going to get good time credit, for all intents and purposes.\\nWe do not read this statement to mean that the court believed it lacked the authority to order SCCC supervision on PR bail, but rather that it lacked the authority to dictate how SCCC exercised discretion over a matter legitimately within its discretion.\\nWe note that the phrase \\\"if found acceptable] by SCCC\\\" is followed by the language \\\"[w]hether Bail is Posted or Converted all conditions apply.\\\" (Capitalization omitted.) As the court pointed out at the September 1 hearing, \\\"the bail order very clearly has an either or. Now, if [the petitioner] wishes to post $50,000 cash, the Court order says that [SCCC] will supervise him.\\\" The court later explained:\\nHe's going to be monitored by [SCCC] anyhow. It's simply that the difference is that what the Court is doing is ordering [SCCC] to do it. He's being given, if you will, a gift, that is, his bail is going to change from $50,000 cash to PR, if they find him acceptable.\\nIf he posts the 50 grand, he gets out, and the Court's order then is that he's going to be supervised by [SCCC]. They are then ordering [SCCC] to do it.\\nThe foregoing makes clear that the court knew it had the power to order supervision by SCCC. We consider any language in the court's orders that could be read to the contrary to be inadvertent and not indicative of the court's actual opinion on the matter, or of a delegation of any authority by the court to SCCC.\\nThe petitioner concedes, as noted previously, that \\\"it would not violate the Constitution for SCCC to make recommendations as to bail conditions,\\\" but contends that the power delegated to SCCC in this case went beyond recommendation into impermissible decision-making on a condition of bail. We disagree. Admittedly, the court's June 15 order contemplated some exercise of discretion by SCCC. The court noted that SCCC \\\"ha[d] to decide whether or not [it] has the means to [supervise the petitioner in the community] based upon whatever the current circumstances are.\\\" Such a decision, however, is well within SCCC's purview and invades no province of the judiciary. If SCCC decided it had the means to adequately supervise the petitioner, under the residential options he proposed, then bail was set \\u2014 by the court \\u2014 at personal recognizance. On the other hand, if SCCC lacked confidence in its ability to supervise the petitioner, the court ordered supervision anyway but imposed an additional condition to ensure the petitioner's appearance and good behavior pending trial \\u2014 namely, the posting of $50,000 cash bail. We see little functional difference between SCCC determining that it could not adequately supervise the petitioner in the residential placements he proposed and SCCC recommending against pretrial release. That the court decided the alternative consequences of SCCC's decision prior to SCCC making it does not make the ultimate decision any less the court's.\\nIn sum, we .conclude that the bail orders at issue here reflect \\\"a cooperative accommodation among\\\" the judicial and executive branches and do not violate the separation of powers doctrine. Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. at 569.\\nAffirmed.\\nDalianis, C.J., and Conboy and Lynn, JJ., concurred.\"}"

nh/4341291.json

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+"{\"id\": \"4341291\", \"name\": \"The State of New Hampshire v. Thomas A. Bulcroft\", \"name_abbreviation\": \"State v. Bulcroft\", \"decision_date\": \"2014-08-22\", \"docket_number\": \"No. 2013-424\", \"first_page\": 612, \"last_page\": \"617\", \"citations\": \"166 N.H. 612\", \"volume\": \"166\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T01:38:34.618921+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dalianis, C.J., and HICKS, CONBOY, and Lynn, JJ., concurred.\", \"parties\": \"The State of New Hampshire v. Thomas A. Bulcroft\", \"head_matter\": \"Merrimack\\nNo. 2013-424\\nThe State of New Hampshire v. Thomas A. Bulcroft\\nSubmitted: February 12, 2014\\nOpinion Issued: August 22, 2014\\nJoseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief), for the State.\\nThomas A. Bulcroft, self-represented party, by brief.\", \"word_count\": \"2005\", \"char_count\": \"11838\", \"text\": \"BASSETT, J.\\nThe defendant, Thomas A. Bulcroft, appeals an order of the Superior Court (Smukler, J.) denying his petition to annul arrest and court records pertaining to a criminal case in which he was found not guilty by reason of insanity. We affirm.\\nThe following facts are drawn from the order of the trial court. In 1974, the defendant was charged with kidnapping and rape. See RSA 633:1 (1996); RSA 632:1 (1974) (repealed 1975). The trial court accepted his plea of not guilty by reason of insanity and committed him to New Hampshire Hospital for life, unless or until earlier discharged by court order. The defendant was discharged from the hospital in 1979.\\nOn December 10,2012, the defendant filed a petition seeking to have his arrest and indictment record annulled because he was found not guilty by reason of insanity. Although the defendant has not provided a copy of his petition with his appeal brief, he has appended to his brief several pleadings filed in the trial court and asks that we review them as we consider the issue before us. The memorandum of law filed in support of his petition states that he sought \\\"to annul the record of his arrest under RSA 651:5, II because he was found not guilty by reason of insanity.\\\" See RSA 651:5, II (Supp. 2013).\\nThe trial court denied the petition, concluding that a verdict of \\\"not guilty by reason of insanity\\\" is not the same as a finding of \\\"not guilty\\\" for purposes of RSA 651:5, II, and, therefore, the defendant is not entitled to have his record annulled. See RSA 651:5, X(a) (Supp. 2011).\\nOn appeal, the defendant argues that a finding of not guilty by reason of insanity \\\"is equivalent to an acquittal,\\\" and, therefore, RSA 651:5, II permits him to petition for annulment of his arrest and court records. This presents an issue of first impression.\\nThe interpretation of a statute is a question of law, which we review de novo. State v. Mercier, 165 N.H. 83, 85 (2013). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Id. We first examine the language of the statute, and, where possible, we apply the plain and ordinary meanings to the words used. Id. When the language of a statute is plain and unambiguous, we need not look beyond it for further indication of legislative intent and we do not consider what the legislature might have said or add language that the legislature did not include in the statute. State v. Guay, 164 N.H. 696, 699 (2013). The words of a statute should not be read in isolation; rather, all parts of a statutory act must be construed together. Doggett v. Town of North Hampton, 138 N.H. 744, 746 (1994). We construe statutes so as to effectuate their evident purpose and to avoid an interpretation that would lead to an absurd or unjust result. Id. We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. RSA 625:3 (2007).\\nRSA 651:5, II provides:\\nAny person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, may petition for annulment of the arrest record or court record, or both, at any time in accordance with the provisions of this section.\\nRSA 651:5, II applies to: (1) an individual whose arrest has resulted in a finding of not guilty; or (2) an individual whose case was dismissed or not prosecuted. See State v. Skinner, 149 N.H. 102, 103 (2003). Because the defendant does not argue that his case was dismissed or not prosecuted, we confine our analysis to whether his plea of not guilty by reason of insanity \\\"resulted in a finding of not guilty\\\" for the purposes of RSA 651:5, II. For the following reasons, we conclude that it did not.\\nWe have previously held that the plea of not guilty by reason of insanity is one of confession and avoidance and admits that the defendant committed the acts alleged. Novosel v. Helgemoe, 118 N.H. 115, 122 (1978) (superseded in part on other grounds by statute as recognized in State v. Blair, 143 N.H. 669, 673 (1999)). As the Virginia Supreme Court recently observed, \\\"A person who has been found 'not guilty by reason of insanity' of a criminal charge has not been acquitted in the sense that he has been determined to be innocent of the commission of the criminal act charged.\\\" Eastlack v. Com., 710 S.E.2d 723, 725 (Va. 2011); cf. State v. Marchand, 164 N.H. 26, 33 (2012) (stating that evidence rebutting an insanity defense does not concern an element of the crime and, thus, does not directly concern guilt).\\nAs the trial court noted, unlike an individual whose arrest results in an acquittal, a defendant who has been found not guilty by reason of insanity continues to have restraints placed upon his or her liberty. See RSA 651:8-b (Supp. 2013); Eastlack, 710 S.E.2d at 725 (observing that individual found not guilty by reason of insanity is not free to resume life in community as he or she would if acquitted in the usual sense). RSA 651:8-b, I, provides: \\\"If a person is found not guilty by reason of insanity at the time of the offense charged, he shall be committed to the secure psychiatric unit until such time as he is eligible for release pursuant to paragraph IV.\\\" A hearing on commitment must be conducted \\\"not later than 40 days following a verdict of not guilty by reason of insanity.\\\" RSA 651:8-b, II. Prior to the hearing, the defendant must submit to a psychiatric or psychological evaluation, and the result of that evaluation must be furnished to the court. RSA 651:8-b, III. If, at the conclusion of the hearing, the court finds by clear and convincing evidence that the defendant has a mental illness and poses a substantial risk of bodily injury to himself or another by virtue of his condition, the court shall order the defendant's involuntary commitment. RSA 651:8-b, IY (\\\"The existence of clear and convincing evidence that a person's release would create a substantial risk of bodily injury to himself or herself or another person or serious damage to the property of another shall be presumed, subject to rebuttal by the acquitted person, where the person has been found not guilty by reason of insanity of an offense involving bodily injury or serious damage to property of another, or substantial risk of such injury or damage.\\\").\\nTo construe a \\\"finding of not guilty\\\" as used in RSA 651:5, II, to include a defendant whose arrest has resulted in a finding of not guilty by reason of insanity would allow such a defendant to file a petition to annul his or her arrest and/or court records \\\"at any time,\\\" RSA 651:5, II, including during the statutorily mandated commitment period. If we were to adopt the interpretation advanced by the defendant and the petition were granted, the annulment would render ineffectual the procedural and substantive requirements of RSA 651:8-b. We decline the defendant's invitation to apply this construction to nullify a process established to protect society from those individuals whose release would create a substantial risk of injury to others. See, e.g., State v. Patterson, 145 N.H. 462, 465 (2000) (\\\"Where reasonably possible, statutes should be construed so that they lead to reasonable results and do not contradict each other.\\\" (quotation omitted)).\\nThe petitioner urges us to adopt the analysis applied by the Supreme Court of Illinois in People v. Harrison, 877 N.E.2d 432 (Ill. 2007). In Harrison, the court observed that the effect of a finding of \\\"not guilty by reason of insanity\\\" was to absolve the defendant of guilt for the charged crime. Id. at 438. \\\"This absolution,\\\" the court reasoned, \\\"is exactly the same as that conferred by any other not-guilty judgment, whether based on the State's failure of proof or establishment of an affirmative defense.\\\" Id. The court concluded that \\\"[a] defendant found [not guilty by reason of insanity] is completely absolved of the crime and will not face punishment.\\\" Id. at 437.\\nWe are not persuaded by this reasoning. Although a defendant found not guilty by reason of insanity may not face traditional criminal punishment, his liberty is subject to constraint, unlike a defendant who has been acquitted.\\nFor this same reason, we reject the defendant's argument that, because a plea of not guilty by reason of insanity is an affirmative defense, an acquittal based on insanity is \\\"similar to an acquittal based on any other affirmative defense.\\\" As the Pennsylvania Supreme Court has observed:\\nIt is common knowledge that a verdict of not guilty means that [the defendant] goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning . It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others.\\nCom. v. Gass, 523 A.2d 741, 744 (Pa. 1987) (quotation omitted) (holding defendant did not receive effective assistance of counsel due to counsel's failure to request instruction on verdict of not guilty by reason of insanity); see State v. Jennings, 130 S.W.3d 43 (Tenn. 2004) (holding for purposes of expungement statute that verdict of not guilty by reason of insanity (NGI) differs from verdict of not guilty because NGI verdict does not indicate that defendant did not engage in charged criminal activity and does not necessarily end the legal proceedings in the case); see also State v. Salmon, 306 S.E.2d 620, 621 (S.C. 1983) (construing South Carolina expungement statute and determining that a person found not guilty by reason of insanity cannot be said to have had charge dismissed or to have been found innocent of the charge); State v. Ambaye, 616 N.W. 2d 256, 259 (Minn. 2000) (concluding that jury verdict of not guilty by reason of insanity is not a resolution \\\"in favor of' defendant for purposes of Minnesota expungement statute).\\nWe observe that, when addressing other criminal justice issues, the legislature has distinguished between the disposition of cases by acquittal and by a finding of not guilty by reason of insanity. See, e.g., RSA 106-K:1, V (2013) (classifying case dispositions for purposes of criminal justice information system); RSA 135-E-.2, III (Supp. 2013) (including within definition of \\\"Convicted of a sexually violent offense\\\" a person who has been \\\"adjudicated not guilty by reason of insanity of a sexually violent offense\\\"); cf. State v. Bouwman, 328 N.W.2d 703, 705 (Minn. 1982) (\\\"There is a distinction, which society understands and accepts, between a verdict of 'not guilty' and a verdict of 'not guilty by reason of insanity.' \\\"). Notably, the legislature did not include in RSA 651:5, II a specific reference to persons found not guilty by reason of insanity. Accordingly, we decline to expand the scope of the statute, and we will not add language that the legislature did not include. See Guay, 164 N.H. at 699.\\nTo the extent that the defendant seeks review of other issues, we conclude that, given the limited record before us and our conclusion that the defendant is not entitled to annulment under RSA 651:5, II, his remaining arguments do not require further discussion. Accordingly, we affirm the decision of the trial court.\\nAffirmed.\\nDalianis, C.J., and HICKS, CONBOY, and Lynn, JJ., concurred.\"}"

nh/4410503.json

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+"{\"id\": \"4410503\", \"name\": \"The State of New Hampshire v. Richard Lurvey\", \"name_abbreviation\": \"State v. Lurvey\", \"decision_date\": \"1986-04-11\", \"docket_number\": \"No. 85-137\", \"first_page\": 822, \"last_page\": \"824\", \"citations\": \"127 N.H. 822\", \"volume\": \"127\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:46:50.805971+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"The State of New Hampshire v. Richard Lurvey.\", \"head_matter\": \"Hillsborough\\nNo. 85-137\\nThe State of New Hampshire v. Richard Lurvey.\\nApril 11,1986\\nStephen E. Merrill, attorney general (William H. Lyons, attorney, on the brief), by brief for the State.\\nJoanne S. Green, assistant appellate defender, of Concord, by brief for the defendant.\", \"word_count\": \"627\", \"char_count\": \"3885\", \"text\": \"BATCHELDER, J.\\nThe defendant appeals his conviction on two counts of aggravated felonious sexual assault. RSA 632-A:2 (Supp. 1983). The issue on appeal is whether the Trial Court (Pappagianis, J.) improperly admitted evidence of a scientific test that analyzed a stain found on the victim's clothing and identified it as semen. We affirm.\\nThe victim in this case was sexually assaulted at the Manchester YMCA in May 1984; at the time she was thirteen years old. On appeal, the defendant does not dispute the victim's or the prosecutor's allegation that a sexual assault occurred. Rather, he challenges the allegation that he was the assailant, and asserts that the trial court abused its discretion in admitting evidence of the serological test performed on the victim's underpants. The defendant argues that since the test could not link the semen to the defendant, the evidence had limited probative value and was unduly prejudicial. The State contends that although the test was not meant to identify the assailant, the results of the test did corroborate the victim's account of the assault. The State also contends that by his failure to ask for limiting instructions when the evidence was admitted, the defendant waived his right to argue undue prejudice on appeal.\\nThis court has long held that a trial judge has broad discretion to admit or exclude evidence. See State v. Hamel, 123 N.H. 670, 677, 466 A.2d 555, 559 (1983). The determination of whether competent corroborative evidence should be excluded as tending to excite undue prejudice is a question of fact for the trial court. State v. Harkeem, 97 N.H. 508, 510, 92 A.2d 906, 908 (1952). \\\"In determining whether evidence should be admitted, the trial [judge] must balance the potential prejudicial effect of the evidence against its probative value.\\\" Hamel, supra at 677, 466 A.2d at 559. The decision to admit evidence will be upheld unless the trial court has abused its discretion. Id.\\nThe disputed evidence in this case established the presence of semen on the victim's clothing, but had no value in connecting the defendant to the crime. The expert who conducted the serological test testified that it \\\"is not a method for personal identification.\\\" Thus, the evidence was not offered to identify the defendant as the source of the semen, but merely to corroborate the prosecutrix's testimony that a sexual assault occurred.\\nTo support his assertion that evidence pertaining to the test lacked probative value, the defendant cites several cases involving the introduction of blood tests in which the courts held that the evidence was not probative. See, e.g., People v. Robinson, 27 N.Y.2d 864, 265 N.E.2d 543 (1970); People v. Sturdivant, 91 Mich. App. 128, 283 N.W.2d 669 (1979). These cases are inapposite, however, because the purpose of introducing the blood tests was to identify the assailants, rather than to corroborate the victims' testimony.\\nThe defendant's argument that the evidence lacked probative value and was unduly prejudicial fails to recognize the valid purpose for which it was offered. We hold that the evidence was probative and was properly admitted to corroborate the victim's rendition of the facts. See State v. Berry, 117 N.H. 352, 354-55, 373 A.2d 355, 357 (1977); State v. Harkeem, 97 N.H. at 510, 92 A.2d at 907-08.\\nBecause the evidence was properly admitted for its corroborative value, we need not address the State's contention that the defendant's failure to ask for limiting instructions constituted a waiver of the prejudice issue. See Robinson supra. Accordingly, we affirm.\\nAffirmed.\\nAll concurred.\"}"

nh/4411712.json

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+"{\"id\": \"4411712\", \"name\": \"Dustin v. Steele\", \"name_abbreviation\": \"Dustin v. Steele\", \"decision_date\": \"1853-12\", \"docket_number\": \"\", \"first_page\": 431, \"last_page\": \"432\", \"citations\": \"27 N.H. 431\", \"volume\": \"27\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Superior Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:03:41.099508+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dustin v. Steele.\", \"head_matter\": \"Dustin v. Steele.\\nBy custom, a wife may bar her right of dower, by signing and sealing her husband\\u2019s deed of his land.\\nWrit of Dower. The parties agreed upon the following facts, and that judgment should be rendered thereon according to the opinion of the court.\\nPeter Dustin, jr, now deceased, was the husband of the plaintiff, and seized in fee of the land described in the writ during her coverture, to wit, on the 27th day of July, 1819, and conveyed the same with full covenants of warranty, in fee and in mortgage, to Jonathan Dustin.\\nThe plaintiff, then the wife of Peter Dustin, jr., signed, sealed and acknowledged said deed; but neither her name, nor any reference thereto, or to her, occur in any of the covenants of said deed, or at any place therein before her signature. ,\\nThe defendant has the fee of the land, derived from said Jonathan Dustin.\\nThe plaintiff, since the decease of Peter Dustin, jr., duly demanded her dower in said land, of the defendant, more than thirty days prior to the commencement of this suit.\\nG. C. Bartlett, for the demandant.\\nDower is not only a civil but a moral right. 1 Greenl. Cruise, 166. And in order to bar the same by deed, the wife must join with the husband in the deed, and there must be apt words of grant, showing an intention on her part to relinquish her dower. 4 Kent, 59; Stevens v. Arven, 25 Maine Rep. 98; Catlin v. Ware, 9 Mass. Rep. 218; Lufkin v. Curtis, 13 Mass. Rep. 223; Leavitt v. Lamprey, 13 Pick. 382; Powell v. Monson, 3 Mason, 347.\\nIf the deed does not contain apt words, showing her intention to relinquish her dower, she will not be barred therefrom, though she has signed and sealed the deed, and made the statute acknowledgment. 1 Greenl. Cruise, 202, and cases there cited.\\nFrench, for the tenant.\\n1. The principle which g\\u00f3verns this case seems conclusively settled in Elliott v. Sleeper, 2 N. H. Rep. 525; Contra, 9 Mass. Rep. 223; 13 Pick. 382.\\n2. A widow may convey her right of dower by separate deed. Shepherd v. Howard, 2 N. H. Rep. 507. See, also, 2 N. H. Rep. 405; 4 N. H. Rep. 423; Laws of 1815, page 193. And the form of such conveyance so it be under seal, and evince an assent to the conveyance of a complete title, seems not material. The common form is a mere release. See, also, Shepherd v. Howard, 2 N. H. Rep. 507. The plaintiff is estopped to claim against this deed, containing a warranty against this very right, executed in her presence. 12 N. H. Rep. 133; 13 N. H. Rep. 375.\", \"word_count\": \"503\", \"char_count\": \"2737\", \"text\": \"Bell, J.\\nThe .principles applicable to this case were fully examined and considered in Burge v. Smith, decided at the present term, (page 332 of this volume.)\\nIn accordance with the opinion of the court therein expressed, there must be,\\nJudgment for the tenant.\"}"

nh/4411759.json

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+"{\"id\": \"4411759\", \"name\": \"Irving Glidden v. Public Service Co. of New Hampshire; Walter Glidden v. Same\", \"name_abbreviation\": \"Glidden v. Public Service Co.\", \"decision_date\": \"1936-03-03\", \"docket_number\": \"\", \"first_page\": 4, \"last_page\": \"9\", \"citations\": \"88 N.H. 4\", \"volume\": \"88\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:16:36.251309+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Irving Glidden v. Public Service Co. of New Hampshire. Walter Glidden v. Same.\", \"head_matter\": \"Carroll, )\\nMarch 3, 1936.\\nIrving Glidden v. Public Service Co. of New Hampshire. Walter Glidden v. Same.\\nCooper & Hall (Mr. Hall orally), for the plaintiffs.\\nDemond, Woodworth, Sulloway, Piper & Jones (Mr. Piper orally), for the defendant.\", \"word_count\": \"1587\", \"char_count\": \"9108\", \"text\": \"Page, J.\\nThe defendant's sole claim, in connection with its exceptions to the denial of its motions for nonsuits and directed verdicts, is that the plaintiffs assumed the risk. Under the view of the evidence most favorable, to the plaintiffs, the risk which resulted in the injuries of both plaintiffs was the defect in pole 3. The question for us, therefore, is whether it must be found that the plaintiffs appreciated, or ought to have appreciated, the danger of pole 3 falling. Goodale v. York, 74 N. H. 454, 455.\\nThe knowledge and negligence of the defendant are not matters with which we now have to deal. The only question is whether because of their own knowledge, conclusively appearing, the plaintiffs must be taken to have assumed the risk, thus leaving the defendant owing them no duty whatsoever with respect to the cause of their injuries. What must be found as to their actual knowledge and the knowledge they ought to have possessed? The answer to the first branch of the question is easy; there is no evidence that either plaintiff in fact knew that pole 3 was likely to break under the strain to which it was subjected.\\nAs to what either of them should under the circumstances have appreciated, the question is not so simple. No reason appears why Walter's constructive knowledge, if he had any, should be imputed to Irving. Irving must be charged only with such appreciation as ought to have come to him from his own experience and past observation, and what he saw and heard, and ought to have seen and heard, that night. And the same holds true for Walter.\\nThough it seems that pole 2 was sufficiently sound so that Irving may be said to have assumed no risk when he climbed it, yet when he later knew that Walter was about to climb pole 3, and still later while Walter was climbing it, Irving would be chargeable with such knowledge as he (Irving) reasonably ought to have had of the risk attendant upon the added factor of strain introduced. So he could not voluntarily stay on pole 2 provided he could extricate himself or bring about a cessation of the risk of Walter's climbing pole 3 after it should have become apparent to him that there was a risk of number 3 falling and pulling number 2 with it. Olney v. Railroad, 71 N. H. 427. The same principle would apply to Walter if he ought reasonably to have anticipated the risk in season to have avoided it.\\nShould either have appreciated it before it was too late? There was evidence of the general knowledge and experience of both, of their knowledge of the unusual strain put upon the pole-line by the fallen tree, of their knowledge that the poles were old (they had been set for about fourteen years), of Irving's knowledge that he had recently climbed pole 3 without trouble, of the knowledge of both that pole 3 carried a transformer, of Walter's \\\"sounding\\\" of the pole (not clearly known to Irving) as he climbed on this occasion, of the apparent sturdiness and steadiness of the pole (as both saw it, and Walter felt it) until he reached the top, of the facts that it was dark at the time and that the upper part of pole 3 was illuminated by automobile lights. It seems clearly a question for the jury whether either plaintiff should have appreciated the risk.\\nThe first attitude of the defendant seems to have been that the plaintiffs ought to have tested the pole, and that if they had they would have known the risk. That attitude becomes untenable in view of the possibility of a finding that the test by probing below ground would not have disclosed the fact that the pole was unsound.\\nBut the defendant next attempts to place the plaintiffs in a dilemma. The defect, it urges, (1) was or (2) was not discoverable upon inspection. If so discoverable, the plaintiffs assumed the risk. If not so discoverable, fault of the defendant is not shown. The only \\\"inspection\\\" described by the defendant as applicable is the test by probing below ground. Admittedly, that probably would not have disclosed the weakness of pole 3. But what about the \\\"hundred ways\\\" of testing not described? Obviously a probing above ground might have disclosed the difficulty. The method on which, as far as appears, the defendant relied for testing might be found by the jury to be insufficient. There is no evidence at all that the plaintiffs knew of any other method, or were instructed in it. The jury might have found that they were not bound to think of any other, and that the defendant was. Moreover, the evidence did not require a finding that either plaintiff was charged with the duty of inspection generally or with making any sort of a test before climbing a pole. Olney v. Railroad, 71 N. H. 427, 433.\\nThe bases for the proposed dilemma do not conclusively appear. Duty of inspection could be found to rest upon the defendant and need not be found to rest upon the plaintiffs. \\\"If so discoverable [by inspection], the plaintiffs assumed the risk.\\\" Granted, but only if the plaintiffs had laid on them as part of their employment the duty of inspection, or, lacking such duty, if they reasonably ought under the circumstances to have undertaken a test. And, again, while such inspection as the defendant practised might indeed be found inadequate for this occasion, the jury were not bound to conclude that the defendant had performed its master's duty in providing reasonably safe places for the use of the plaintiffs while in its service. It was for the jury to say whether either plaintiff fully appreciated the danger and assumed the risk. English v. Amidon, 72 N. H. 301, 303.\\nThe defendant excepted to \\\"the charge on the assumption of risk in that it is not clearly set forth that if the plaintiff assumes the risk he cannot recover, the burden of proof being upon the plaintiff to show non-assumption of risk.\\\" The first part of the exception seems to have been abandoned, and objection now seems to be centered on the omission to give a charge as to the burden of proof upon this specific issue. No such instruction was requested prior to the charge. The peculiar form of the exception can hardly be regarded as a request for further instructions. It is at most an exception to an asserted omission so to charge.\\nThe jury were not told that the burden of proof was upon the plaintiffs as to that issue separately. They were, however, told at the outset that the plaintiff had the burden of convincing the jury \\\"that his contentions upon the issues on which the liability or nonliability of the defendant turn are more probably true than other wise.\\\" The issues, as the court reminded the jury more than once, were the negligence of the defendant, contributory negligence and assumption of risk. No suggestion was made by the presiding justice that the general instructions upon burden of proof were inapplicable to any issue except that of contributory negligence. It is not probable that the jury understood that the burden of proof as to assumption rested anywhere except on the plaintiffs. The exception is overruled.\\nThe refusal to charge that there was no evidence that the defendant failed in any duty to instruct them as to their work and the dangers thereof was not error. The only issue submitted to the jury was whether the defendant had failed in a duty of inspection and repair.\\nThe requests for instructions to the effect that there was no emergency created by the defendant such as would excuse the plaintiffs from using ordinary care to discover the dangers which existed or were involved in the work were immaterial to the issues submitted, namely, the lack of inspection or repair by the defendant. No part of the instructions given could be understood as suggesting that the plaintiffs were relieved of care by reason of any emergency of the sort suggested in the requests. Instead it was stated that the servant is \\\"chargeable with knowledge of such conditions of repair or need of repair that he actually knows of\\\" or \\\"which by the reasonable exercise of care for his own safety he would learn of.\\\" This was sufficiently favorable to the defendant.\\nThe refusal to charge that the fact that the plaintiff was acting under instructions from Martin Yeaton did not relieve him from the duty to exercise ordinary care to ascertain any dangers existing in the situation was not error. The argument that it was error runs thus: there was nothing in the instructions given to excuse the climbing of the poles without testing them. That assumes as a fact something that the jury were not compelled to find \\u2014 that the defendants had general instructions to test poles before climbing. The court was correct in saying: \\\"But he has some measure of right to rely, unless the duty of inspection is placed upon him, that the master has performed the duty of inspection and repair.\\\"\\nThe other exceptions are understood to have been waived.\\nJudgments on the verdicts.\\nAll concurred.\"}"

nh/4413254.json

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+"{\"id\": \"4413254\", \"name\": \"Robert Howson & a. v. Foster Beef Company; John C. Ahern v. Same; Winthrop Wadleigh, Adm'r v. Same\", \"name_abbreviation\": \"Howson v. Foster Beef Co.\", \"decision_date\": \"1935-01-01\", \"docket_number\": \"\", \"first_page\": 200, \"last_page\": \"211\", \"citations\": \"87 N.H. 200\", \"volume\": \"87\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T01:46:23.796848+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Robert Howson & a. v. Foster Beef Company. John C. Ahern v. Same. Winthrop Wadleigh, Adm\\u2019r v. Same.\", \"head_matter\": \"Hillsborough,)\\nJan. 1, 1935. )\\nRobert Howson & a. v. Foster Beef Company. John C. Ahern v. Same. Winthrop Wadleigh, Adm\\u2019r v. Same.\\nDoyle & Doyle, for Robert and Alice Howson.\\nWyman, Starr, Booth & Wadleigh (Mr. Booth orally), for John C. Ahern and Winthrop Wadleigh, administrator.\\nSamuel A. Margolis (by brief and orally), for the defendant.\", \"word_count\": \"4115\", \"char_count\": \"24099\", \"text\": \"Marble, J.\\nOn September 30, 1931, Mathilda Ahern, the wife of the plaintiff John C. Ahern, purchased at the bakery and food shop of Robert and Alice Howson in Manchester six small pork pies. The Howsons had bought the pork contained in these pies from the defendant company. It was in the form of three pork butts, so called, weighing 21)^ pounds, and came from a carload of meat received by the defendant from the Dold Packing Company on September 23 and waybilled from the Union stockyards on September 18. When Robert Howson ordered the pork he told the defendant that he \\\"wanted to make some pork pies.\\\"\\nThe members of the Ahern family who ate the pies became sick, and Raymond Ahern, a boy twelve years old, after eating two of the pies, died. The cause of his death and the sickness of the others was poison from certain bacteria with which the pies were infected. Tests made at the state laboratory of hygiene proved these bacteria to be colon bacilli.\\nThere was evidence that the colon bacillus is common to the intestinal tracts of men and beasts and that it may under certain circumstances be present in the tissues of an animal at the time of slaughter. The principal controversy at the trial related to the source of the infection, the Howsons claiming that the pork was already infected when sold to them by the defendant company, the defendant claiming that the infection was caused by the unsanitary condition of the Howsons' bakery.\\nAt the time the pies were made, several members of the Howson family including a three-year-old son were afflicted with diarrhoea, and Mrs. Howson while at work on the pies was obliged to stop frer quently to take the boy to the bathroom, which adjoined the kitchen. The making of the pies with soiled hands and the carrying of germs by flies were suggested as possible means of contamination.\\nThe defendant's evidence tended to prove that even if colon bacilli had been present in the pork when the pies were made, the process of baking would have rendered them innocuous. The plaintiffs introduced evidence to the contrary. Dr. Stewart, the physician who attended Raymond Ahern, testified that he had supplemented his \\\"general medical knowledge with readings about food poisons.\\\" The only objection to his testimony related to an interrupted inquiry as to symptoms he had observed \\\"such as very commonly are found in meat conditions.\\\" After the court had ruled that \\\"That comes within a doctor's general knowledge,\\\" the inquiry was withdrawn, and the witness was then asked whether diseased meat would produce the symptoms observed in Raymond Ahern. On the evidence Dr. Stewart's qualifications were clearly sufficient to justify the trial court in allowing him to answer that question. Eames v. Corporation, 85 N. H. 379, 385. Dr. Stewart further testified (and without exception) that colon bacilli were so resistant to heat that if present in the pork when purchased from the defendant, the baking of the pies would not have destroyed their poisonous effects, but that, on the other hand, \\\"an infection from diarrhoea\\\" would probably \\\"be rendered sterile\\\" by the baking. In his opinion the colon bacilli were in the pork when the Howsons bought it.\\nMrs. Howson testified that after taking the boy to the toilet she always washed her hands and scrubbed her nails. An inspector employed by the Manchester board of health, who inspected the bakery shortly after the pies were sold, stated that there were no signs of flies about the premises. Various persons beside the Aherns were sick after eating some of the pork pies, but there were no complaints from purchasers of chicken pies or meat pies made by the Howsons during the same period that the pork pies were made.\\nOn this evidence it could fairly be found that the pork was contaminated when it left the defendant's hands and that it was not \\\"after-wards purified by boiling and baking.\\\" This finding would not be a \\\"conjecture between equal possibilities, but the ordinary determination of a conclusion from inferences supported by a balance of probabilities.\\\" Saad v. Papageorge, 82 N. H. 294, 296.\\nThe plaintiffs contend (1) that the provisions of the uniform sales act (P. L., c. 166, s. 15, paragraphs I, II) imposed upon the defendant company the liability of. a warrantor, and (2) that since the selling of contaminated meat constitutes a violation of the pure food law (P. L., c. 139, ss. 1, 3; Laws 1929, c. 45, s. 5), the defendant, in view of the third finding of the jury, was guilty of negligence as a matter of law.\\nIt is true that since the passage of the sales act \\\"Dealer as well as manufacturer or grower affirms as to anything he sells, if purchased by description, that it is of merchantable quality.\\\" Ryan v. Progressive Grocery Stores, 255 N. Y. 388, 392. See also Burkhardt v. Company, 115 Conn. 249; Ward v. Company, 231 Mass. 90; Griffin v. Company, 108 N. J. Law 92. But this is far from saying that the statute has abolished the rule of privity and that the imposed warranty runs with the goods in the sense that it is available to the sub vendee. In the Ryan case the court (Cardozo, C. J.) is careful to state that the plaintiff through his wife, who acted as his agent, bought the warranted article (a loaf of Ward's bread) directly from the defendant.\\nIn connection with the sales of personal property, it is the general rule \\\"that warranties do not run in favor of any but an immediate purchaser.\\\" 1 Williston, Sales, (2d ed.), s. 244, p. 489. An apparent exception to this rule is found in those cases which permit the sub-purchaser to recover against the manufacturer. The suggestion that these cases are defensible on the theory that the representations of the manufacturer (usually by means of trade-marks, labels or advertisements) \\\"are in substance made directly to the sub-purchaser\\\" (45 Harv. Law Rev. 1418; see also 1 Williston, Sales, s. 244a) does not require discussion, however, since the packing company is not a party to these proceedings.\\nIt is our conclusion, therefore, that no liability as warrantor was imposed on the defendant company in favor of the plaintiff John C. Ahern or the decedent Raymond G. Ahern, neither of whom dealt directly with the defendant. Chysky v. Company, 235 N. Y. 468; Carlson v. Turner Centre System, 263 Mass. 339; Conn. Pie Co. v. Lynch, 57 Fed. Rep. (2d) 447. The case of Challis v. Hartloff, 136 Kan. 823, holding that a wholesale merchant is hable under his implied warranty not only to his immediate vendee but to his vendee's customer is not compatible with the trend of our decisions. Kenney v. Len, 81 N. H. 427, 435-440.\\nNor are the actions maintainable on the theory that violation of the pure food law is negligence per se.\\n\\\"The doctrine of negligence per se purports to dictate an inflexible application of the legislature's criminal standard of conduct to a civil case when the legislature has not attempted any legislation to govern tort trials.\\\" Morris, Criminal Statutes and Tort Liability, 46 Harv. Law Rev. 453, 473.\\nThis doctrine does not prevail in New Hampshire. It is the rule here that the violation of a penal statute is an actionable wrong only when the legislature expressly so provides (see P. L., c. 162, ss. 25, 26, relating to the sale of petroleum, naptha, and illuminating gas), or when the purpose and language of the statute compel such inference (Johnson v. Railroad, 83 N. H. 350; Clark v. Hampton, 83 N. H. 524, 529; L'Esperance v. Sherburne, 85 N. H. 103, 107; Vidal v. Errol, 86 N. H. 1, 3-6; Prescott v. Yurchus, 86 N. H. 108). Says Professor Charles L. B. Lowndes: \\\"When a statute explicitly creates a criminal liability, the court which reads a civil obligation into the enactment is embarking upon a perilous speculation. This does not exceed its power, but it does overstep the decent amenities of judicial conduct.\\\" 16 Minn. Law Rev. 361, 363.\\nThere is here no evidence that the defendant knew or had the slightest reason to suspect that the pork which it sold was contaminated. The presiding justice correctly ruled that there was no evidence which would warrant a finding of liability against the defendant company based on negligence in fact. Section 13 of the pure food law provides that where the violation of the act is not wilful the institution of a prosecution shall be at the discretion of the state board of health. No prosecution appears to have been instituted in the present case. Under such circumstances there is some question as to whether the defendant company is guilty of any offense at all. Coutremarsh v. Metcalf, ante, 127. \\u2022 Certainly no legislative intent to make a person in the defendant's position liable in a civil action for damages can fairly be inferred from the provisions of the act.\\nIt is of no consequence that the presiding justice instructed the jury in accordance with the theory of the law advanced by counsel for Ahern and the administrator. The special findings of fact relating to the alleged contamination of the pork were in no way dependent on rules governing warranty and negligence per se. Furthermore the defendant protected its rights by moving for nonsuits and directed verdicts. Since the motions should have been granted in the Ahern and Wadleigh cases, the defendant waived nothing so far as those cases were concerped by failing to object to the charge. In Cot\\u00e9 v. Company, 86 N. H. 238, on which reliance is placed, the motion for a directed verdict was properly denied. Consequently, errors in the charge were waived unless excepted to. The alleged error in the Cot\\u00e9 case was the court's instruction that the jury might consider certain evidence in determining whether or not a revolver had been fired within the compact part of a city. This fact was material on the issue of contributory illegality, and the evidence was relevant if the court's definition of \\\"compact part\\\" was correct. Since no exception was taken to the definition, \\\"it became the unquestioned law of the trial.\\\" The defendant did not profess to be entitled to a directed verdict on the issue in question. 432 Briefs & Cases, 495-497.\\nThe Wadleigh case invites special consideration. Without evidence of fraud or negligence on the defendant's part, there could be no recovery for the death of Raymond G. Ahern, even if the rule of privity did not prevail.\\n\\\"At common law no civil action could be maintained for the killing of a human being. Wyatt v. Williams, 43 N. H. 102, and authorities cited.\\\" Cogswell v. Railroad, 68 N. H. 192, 194. The right to maintain such an action was first granted by chapter 35 of the Laws of 1879, which provided that an executor or administrator might recover damages for a decedent's death when that death had been caused \\\"by a wrongful act or neglect of another.\\\" This statute was succeeded by Laws 1887, c. 71, and that act, as well as chapter 11 of the Laws of 1885 relating to the survival of actions and causes of actions, was in turn supplanted by P. S., c. 191, ss. 8-13, which, reenacted as P. L., c. 302, ss. 9-14, is the statute now in force. The \\\"new action\\\" authorized by section 11 of the present act permits the bringing of suits for death only in cases \\\"of tort for physical injuries to the person\\\" (P. L., c. 302, s. 9).\\nThe meaning of the word \\\"tort\\\" as used in section 9 and incorporated in section 11 by reference has been judicially defined as \\\"a wrong apart from contract.\\\" Cochran v. Laton, 78 N. H. 562, 563. \\\"The statute applies to torts as violations of legal rights which are not contractual in nature, and a liability not resulting from a tort and being only a liability to pay money is in no way a liability for tort.\\\" Holland v. Company, 83 N. H. 482, 484.\\nThe plaintiff Wadleigh concedes all this to be true, but calls attention to the fact that the original remedy for false warranty was an action on the case sounding in tort, and quotes Professor Williston to the effect that it was \\\"not until 1778 that the first reported decision occurs of an action on a warranty brought in assumpsit.\\\" 1 Williston, Sales (2d ed.), s. 195, p. 369.\\nThe initial conception of the action as one of tort is not significant, for \\\" Originally every action of assumpsit treated a breach of promise as a tort.\\\" Shaw, C. J., in Dickinson v. Winchester, 4 Cush. 114, 120. Ames in his \\\"Lectures on Legal History,\\\" p. 144 (2 Harv. Law Rev. 1, 15), states: \\\"Both in equity and at law, . a remediable breach of a parol promise was originally conceived of as a deceit; that is, a tort. Assumpsit was in several instances distinguished from contract. By a natural transition, however, actions upon parol promises came to be regarded as actions ex contractu.\\\"\\nIn actions for breach of warranty (at first regarded as pure actions on the case for deceit with all the technical requisites of pleading and proof peculiar thereto), the early elimination of the requirement that scienter be proved indicated a recognition of the fact that the gist of the action was not in reality a deceit practiced upon the plaintiff but rather a breach by the defendant of an obligation undertaken by him. The \\\"notion of undertaking\\\" was \\\"well conveyed\\\" by the words \\\"warrantizando vendidit,\\\" which appeared in the conventional form of declaration long before the action of special assumpsit was known. Ames, \\\"Lectures on Legal History,\\\" 136 (2 Harv. Law Rev. 1, 8). Under these circumstances, the development of the modern conception of this action as one sounding in contract was inevitable.\\nSince the statute authorizing suits for death is \\\"a comparatively modern innovation\\\" (Piper v. Railroad, 75 N. H. 435, 444; West v. Railroad, 81 N. H. 522, 530), it is highly improbable that the meaning of the word \\\"tort\\\" could have been intended to depend on the ancient classification of actions. In this jurisdiction a warranty has long been regarded as a \\\"contract,\\\" \\\"an engagement, a promise to make good.\\\" Bedell v. Stevens, 28 N. H. 118, 123, 126. And as early as 1853, when Bedell v. Stevens was decided, it was \\\"the practice of the profession... to declare in assumpsit upon such contracts.\\\" Ib., 126. \\\"There is no doubt that to-day the obligation of a warrantor is generally conceived of as contractual.\\\" 1 Williston, Sales (2d ed.), s. 197, p. 373. See also McQuaid v. Michou, 85 N. H. 299, 300, 301.\\nA warranty is none the less a contract because it contains a fraudulent or negligent misrepresentation (Mahurin v. Harding, 28 N. H. 128, 130), but in such case if the plaintiff seeks to recover because of the fraud or negligence involved, his cause of action is not upon the contract (though it may be \\\"alleged by way of inducement\\\"\\u2014 George v. Shivington, L. R. 5 Ex. 1, 3) but for an injury caused by such special wrong. (Mahurin v. Harding, 28 N. H. 128, 130-132; Spead v. Tomlinson, 73 N. H. 46, 60; Cunningham v. Company, 74 N. H. 435; Maxwell Ice Co. v. Company, 80 N. H. 236, 239).\\nThe only warranty in the present case is that imposed by statute. The violation of a duty so imposed is not necessarily a tort. Holland v. Company, 83 N. H. 482. The sales act does not so designate a violation of any of the provisions of section 15, and there is nothing to indicate that the legislature intended to subject a seller whose only fault is an innocent breach of one of these imposed warranties to arrest on civil process, as would be the case if such breach were tortious. Eames v. Stevens, 26 N. H. 117; Mahurin v. Harding, 28 N. H. 128, 130, 134. See P. L., c. 333, s. 7, exempting defendants from arrest \\\"on a writ in an action founded on a contract.\\\"\\nThe statute discloses no legislative purpose to treat the character of an implied warranty as different from that of an express one. \\\"The clauses of the sales act styled\\u00bb as warranties are only refutable presumptions, requiring negation of what previously required proof.\\\" Kenney v. Len, 81 N. H. 427, 439. Obviously the fact here presumed is a promise on the defendant's part to be answerable for the quality of the meat sold. The breach of this implied promise is no more tortious than the violation of any other promise implied by law.y\\nCertain exceptions in connection with the Howson case remain to be considered. Since there was privity between the Howsons and the defendant, the motion for a directed verdict in this case was properly denied.\\nNo error is apparent in the exclusion of the defendant's offer to show what customers purchased the pork butts contained in the carload of September 23. The plaintiffs claimed that the pies were infected by the meat of a hog suffering from septicemia when slaughtered. The car contained 21,660 pounds of fresh meat and 785 pounds of pork butts put up in 35- or 50-pound boxes or crates. It is difficult to see how the fact that no complaints had been received from those who purchased the rest of the carload had any appreciable tendency to prove that the particular butts sold the Howsons were free from colon bacilli. At best, the question was one of remoteness for the presiding judge. Hening's Digest, p. 585.\\nThe findings must, however, be set aside.\\nThe meat-inspection act provides that the secretary of agriculture shall cause to be made by inspectors appointed for that purpose \\\"a post mortem examination and inspection of the carcasses and parts thereof of all cattle, sheep, swine, and goats to be prepared for human consumption at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment in any State, Territory, or the District of Columbia for transportation or sale as articles of interstate or foreign commerce; and the carcasses and parts thereof of all such animals found to be sound, healthful, wholesome, and fit for human food shall be marked, stamped, tagged, or labeled as 'Inspected and passed'.\\\" 34 U. S. Stat. 1260, 1261; 21 U. S. C. A., s. 72. The counterfeiting or unauthorized use of any mark, stamp, tag, or label is made an offense punishable by fine and imprisonment (21 U. S. C. A., ss. 79, 88), and carriers are forbidden to transport in interstate commerce any meat which has not been inspected and marked as inspected and passed (lb., s. 78).\\nThe defendant offered to prove \\\"that all the boxes containing the pork butts in question, were stamped by Government inspection stamps, on leaving the packing plant in Omaha, Nebraska, and were on the box on receipt in Manchester.\\\"\\nWhile the fact that the pork was inspected and passed by government officials was not a complete defence to the action against the beef company (Catani v. Company, 251 Pa. St. 52, 61; Rinaldi v. Company, 157 N. Y. Supp. 561), it tended to prove that the meat was fit for human consumption when it was consigned to the beef company, and, since there was no evidence of negligence on the company's part, that it was therefore uneontaminated when sold to the Howsons. The proffered evidence was excluded apparently on the ground that there was no proof \\\"of what the Federal inspection does amount to\\\" and because the evidence was \\\"offered through Jacob Foster,\\\" president and general manager of the defendant company.\\nThese grounds of exclusion are untenable. In the absence of evidence to the contrary it will be presumed that an examination made imperative by act of congress and conducted by government inspectors will be adequate to accomplish the purpose of the act, which is declared to be the prevention of \\\"the use in interstate or foreign commerce of meat and meat food products which are unsound, unhealthful, unwholesome, or otherwise unfit for human food\\\" (21 U. S. C. A., s. 71).\\nBy the terms of the act the secretary of agriculture is authorized to make rules and regulations regarding meat inspection (21 U. S. C. A., s. 89), and these rules and regulations have the force of law. State v. Peet, 80 Vt. 449, 455. See also United States v. Company, 243 Fed. Rep. 441. The principal regulations operative in 1931 are contained in a publication issued by the department of agriculture December 2, 1922, and entitled \\\"B. A. I. [Bureau of Animal Industry] Order 211 \\u2014 Revised.\\\" The inspection requirements there prescribed are too minutely detailed to permit enumeration here, but a few general regulations pertinent to the present controversy are noted.\\nBy regulation 9 an ante-mortem examination of all swine about to be slaughtered in any slaughtering or packing establishment must be made before slaughtering is allowed. This examination includes the taking of temperatures and other tests to detect hog cholera, swine plague, and septicemia. Regulation 11 provides that carcasses of animals showing, on post-mortem examination, lesions or other signs of any of eight specified diseases including septicemia and hemorrhagic septicemia must be condemned. All meat inspectors are appointed upon certification of the United States civil service commission that they have passed the examination prescribed by that commission, and all final post-mortem examinations must be performed by veterinary inspectors, who must be graduates of veterinary colleges accredited by the commission.\\nClearly the requirements of the government inspection were ade-. quate, if followed, to have detected the contamination claimed.\\nThe other ground of exclusion relates to the formal offer of proof. Certainly the witness was entitled to show the quality of the meat purchased, and, to that end, to state that it was government-inspected pork. For the purposes of discussion, however, it may be conceded that the evidence had reference to the \\\"contents\\\" of a written official statement. Such statements \\\"are generally admissible in evidence, notwithstanding their authenticity is not confirmed by those usual and ordinary tests of truth \\u2014 the obligation of an oath and the power of cross examining the persons on whose authority their truth and authenticity may depend.\\\" Ferguson v. Clifford, 37 N. H. 86, 95. See also 3 Wig. Ev. (2d ed.), ss. 1631, 1632.\\nIn an action on a war risk insurance policy, a tag, field medical card, identified by the plaintiff as having been attached to his clothing in a field hospital in France, was held admissible, Parker, Circuit Judge, declaring: \\\"The evidence offered falls clearly within the principles under which exceptions to the hearsay rule are admitted, i.e., necessity and circumstantial guaranty of trustworthiness. . . . Tested by the first principle, the persons making the entries are not as a practical matter available as witnesses, and evidence of importance to the parties would be lost if entries made by them were not received. Tested by the second, the entries were made by highly intelligent officials of the government in the discharge of their official duties, with no motive to state anything but the truth and subject to reprimand and humiliation in the eyes of their professional associates if they were inaccurate. It is hard to imagine a situation where entries would come with a stronger guaranty , of their trustworthiness.\\\" United States v. Wescoat, 49 Fed. Rep. (2d) 193, 195.\\nSince the inspection stamps themselves would have been admissible, if offered, on satisfactory evidence that they had been destroyed (and there is evidence from which this fact could be inferred), oral testimony as to their existence and to the words printed or inscribed thereon was admissible. State v. Wren, 77 N. H. 361, 362, and cases cited.\\nIn view of the conclusion reached, it is unnecessary to discuss the other rulings to which exceptions were taken. No error in connec tion therewith is apparent. Since the only questions here presented relate to the exceptions of the Foster Beef Company, questions which might have been raised in the actions against the Howsons have not been considered.\\nNew trial in the Howson case.\\nJudgments for the defendant in the other cases.\\nAll concurred.\"}"

nh/4414996.json

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+"{\"id\": \"4414996\", \"name\": \"Bartlett Tree Experts Company and Aetna Life and Casualty Company v. Diane Johnson, Executrix of the Estate of Jeremiah Johnson\", \"name_abbreviation\": \"Bartlett Tree Experts Co. v. Johnson\", \"decision_date\": \"1987-08-24\", \"docket_number\": \"No. 86-458\", \"first_page\": 703, \"last_page\": \"709\", \"citations\": \"129 N.H. 703\", \"volume\": \"129\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T01:07:55.160286+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Bartlett Tree Experts Company and Aetna Life and Casualty Company v. Diane Johnson, Executrix of the Estate of Jeremiah Johnson\", \"head_matter\": \"Sullivan\\nNo. 86-458\\nBartlett Tree Experts Company and Aetna Life and Casualty Company v. Diane Johnson, Executrix of the Estate of Jeremiah Johnson\\nAugust 24, 1987\\nSulloway, Hollis & Soden, of Concord (Margaret H. Nelson and Daniel P. Luker on the brief, and Ms. Nelson orally), for the plaintiffs.\\nKelly and Duddy P.A., of Bedford (Raymond J. Kelly on the brief and orally), for the defendant.\", \"word_count\": \"2212\", \"char_count\": \"13867\", \"text\": \"Batchelder, J.\\nThe defendant, Diane Johnson (claimant), appeals from an order of the Superior Court (Contas, J., approving the report of a Master, R. Peter Shapiro, Esq.) denying workers' compensation benefits for her husband's fatal heart attack. RSA 281:2, V (Supp. 1986). We reverse and remand.\\nJeremiah Johnson, age forty-seven, went to work for Bartlett Tree Experts Company (Bartlett) as a temporary groundman on July 23, 1984. He had worked for Bartlett in that capacity previously, but in the year prior to his death, Johnson had been employed at a desk job for eight months and, for several days, as a mechanic. This was his first day back on the job with Bartlett.\\nJohnson and John Sprano, a Bartlett foreman, began work at 7:30 a.m., pruning trees near power lines in Etna for the Granite State Electric Company. Johnson's job involved operating a \\\"chipping\\\" machine, collecting fallen branches, pulling down tree limbs, and, when necessary, felling trees.\\nThe day was hot and humid, and the temperature rose above 95-degrees in the afternoon. Granite State Electric Company called in all its outside employees that afternoon because of the heat, but Johnson and Sprano, as employees of Bartlett, continued their work. At about 3:00 p.m. they stopped for a water break, and Johnson vomited about five minutes later. Although he complained about the heat, the men continued to work until 3:45 p.m.\\nAfter work, they started for home in Sprano's pick-up truck. Sprano stopped at a grocery store, and Johnson remained outside. When Sprano returned, Johnson was outside the truck vomiting. Johnson said he would be \\\"all right in a minute,\\\" and they resumed their trip home. A short time later, Johnson became unresponsive to Sprano's questions, and when Sprano raised his voice, Johnson suddenly collapsed.\\nSprano stopped to summon help, and an ambulance arrived several minutes later. Efforts to revive Johnson were unsuccessful, and, at 5:45 p.m., he was pronounced dead at Mary Hitchcock Hospital in Hanover. The cause of death was cardiac arrest due to ventricular fibrillation. Johnson had no prior history of heart disease, and no autopsy was performed.\\nMrs. Johnson seasonably filed for workers' compensation benefits. A hearings officer of the New Hampshire Department of Labor awarded benefits based on his determination that \\\"Johnson did suffer an accidental injury arising out of and in the course of his employment at Bartlett Tree Experts Company.\\\" The plaintiffs, Bartlett and its workers' compensation carrier, Aetna Life and Casualty Company, appealed the decision to the superior court. After a trial de novo, the master found that the claimant had failed to \\\"establish to a reasonable degree of medical certainty that the deceased's employment substantially contributed\\\" to his fatal heart attack. The superior court, approving the master's report, denied coverage, and the claimant appealed.\\nOn appeal, the claimant argues that: (1) there was sufficient evidence to prove medical causation; (2) the master erred in his reliance on the testimony of the plaintiffs' expert; and (3) the master erred in his application of the substantial contribution test to determine legal and medical causation in this case. The plaintiffs, on the other hand, argue that the master's report is supported by the evidence and free of legal error.\\nWe begin with a brief consideration of the claimant's argument that the testimony of her expert, Dr. Yanofsky, was sufficient to establish a medical causal connection between her husband's employment and his heart attack. Dr. Yanofsky, the director of Advanced Cardiac Life Programs at Dartmouth-Hitchcock Medical Center, testified, inter alia, that the combined effect of \\\"[t]he heat, humidity, and [the deceased's] exertion\\\" contributed to his heart attack. While we agree that this testimony would have been sufficient to establish medical causation if the master had accepted it, see, e.g., Carpino v. Treasure Chest Restaurant, 106 A.D.2d 782, 483 N.Y.S.2d 817, mod. on other grounds, 65 N.Y.2d 782, 492 N.Y.S.2d 948, 482 N.E.2d 566 (1984) (expert testimony that chef's employment, which required long hours and heavy lifting in a hot kitchen, was causally connected to his heart attack sufficient to sustain award of benefits); Couture v. Mammoth Groceries, Inc., 116 N.H. 181, 183, 355 A.2d 421, 422-23 (1976) (expert testimony that meatcutter's heart attack was probably caused by lifting heavy beef quarters sufficient to establish medical causation), the master had conflicting expert testimony before him, and a trier of fact is free to accept or reject an expert's testimony, in whole or in part, when faced with conflicting expert testimony. Morrill v. Tilney, 128 N.H. 773, 778, 519 A.2d 293, 297 (1986); cf. Town of Hudson v. Wynott, 128 N.H. 478, 485-86, 522 A.2d 974, 978 (1986) (where issue is within the province of medical experts, master required to identify the consideration which impelled decision to disregard uncontradicted medical testimony). Thus, the testimony of the claimant's expert, standing alone, provides no basis to reverse the decision of the superior court.\\nWe turn next to the argument that the master's reliance on the testimony of the plaintiffs' expert, Dr. Ross, requires reversal because his testimony was based on possibilities rather than probabilities. As a preliminary matter, we note that the cases relied on by the claimant are distinguishable from this case because the parties seeking to introduce the expert testimony in those cases bore the burden of proof. In Emerson v. Company, 87 N.H. 108, 112, 174 A. 779, 782 (1934), for example, the claimant's expert admitted that he could \\\"say more about the possibilities than . . . the probabilities.\\\" This court held that this testimony should not have been received without corroborative evidence because \\\"it related to mere possibilities, or to things not more probable than otherwise, [and] it would afford no basis for an assessment of damages.\\\" Id. The court's holding in Emerson was clearly based on the allocation of the burden of proof to the claimant, whose own witness's testimony was at issue. In this case, the claimant also had the burden to prove that she was entitled to workers' compensation benefits, but it is the testimony of the plaintiffs' expert that is at issue. However, we need not rest our decision on that ground because the claimant's argument mischaracterizes Dr. Ross's testimony. The substance of Dr. Ross's testimony was that he believed there were three possible medical explanations for the deceased's cardiac arrest: (a) myocardial infarction; (b) sudden cardiac death syndrome; and (c) perforation of an ulcer. In Dr. Ross's opinion, based on reasonable medical probabilities, the heat, the humidity, and the deceased's exertion were not significant factors in causing death because his cardiac arrest would have occurred \\\"irrespective of [his] work environment.\\\" Therefore, the claimant's argument is without merit.\\nAnother aspect of the master's reliance on Dr. Ross's testimony is noteworthy. Relying on Dr. Ross's testimony, the master discounted heat as a factor in causing Johnson's heart attack because \\\"heat is more detrimental . . . when fluids are not taken and when the individual becomes dehydrated.\\\" Dehydration occurs when a person \\\"loses too much water, as through excessive vomiting.\\\" 1 J. Schmidt, Attorney's Dictionary of Medicine, D-25 (1986). Although the deceased did take in some fluids at lunch, he worked outside in 95-degree heat on the afternoon of his death, and at 3:00 p.m., when he stopped for a water break, he vomited. He continued working, and approximately an hour later, shortly before his heart attack, he vomited again. We need not consider whether the master erred in finding that the deceased was not dehydrated in these circumstances because we reverse the superior court's decision on other grounds. We do, however, remind the trial courts that although the weight to be accorded to expert testimony is generally a determination for the trier of fact, see Morrill v. Tilney supra, the bases of expert testimony must be carefully considered. \\\"[T]he opinions expressed by any expert are only of value insofar as they are based upon factual assumptions which are fairly supported in the record.\\\" Johnson v. Califano, 434 F. Supp. 302, 309 (D. Md. 1977); see Calhoun v. Honda Motor Co., Ltd., 738 F.2d 126, 129 (6th Cir. 1984); see also N.H. R. Ev. 703; 11 J. Moore, Moore's Federal Practice \\u00a7 703.10 (2d ed. 1985) (Fed. R. Evid. 703, from which N.H. R. Ev. 703 is derived, assumes that expert testimony must have a factual basis).\\nThe claimant's next argument is more persuasive. The claimant contends that the master erred in applying the substantial contribution test in this case. Generally, a claimant in a workers' compensation case \\\"must prove two required elements: that the [employee's] injury or death was accidental; and that the injury or death was caused by his employment.\\\" New Hampshire Supply Co. v. Steinberg, 119 N.H. 223, 226, 400 A.2d 1163, 1165 (1979), appeal after remand, 121 N.H. 506, 433 A.2d 1247 (1981); RSA 281:2, V (Supp. 1986). The plaintiffs concede that the deceased's heart attack was accidental in the sense that it was unexpected. Thus, the critical issue at trial was causation.\\nIn Steinberg, this court adopted Professor Larson's suggested analysis for the difficult problem of determining the compensability of heart attacks. See Larson, The \\\"Heart Cases\\\" in Workmans' Compensation: An Analysis and Suggested Solution, 65 Mich. L. Rev. 441 (1967). A claimant in a heart case must prove both legal and medical causation between work-related stress or exertion and the heart attack. The appropriate test to determine legal causation depends on the employee's prior health:\\n\\\"Where there is a prior weakness in the form of a previously weakened or diseased heart, then the employment must contribute something substantial to the heart attack. That is, the employment-connected stress or strain must be greater than is encountered in normal nonemployment life. Thus, heart attacks that actually result from work related stress are distinguished from those that occur at work merely as a result of natural physiological process. If there is no prior weakness or disease of the heart, any [work-related] exertion connected with the heart as a matter of medical fact is adequate to satisfy the legal test of causation so as to make the injury or death compensable.\\\"\\nSteinberg, supra at 231, 400 A.2d 1168 (citations omitted) (emphasis in original).\\nUnder Steinberg, the substantial contribution test of legal causation is appropriate only when the existence of a pre-existing weakness or disease is proved by the party alleging it. IB A. Larson, Workmen's Compensation Law \\u00a7 38.83, at 7-294 (1987). When the existence of a prior heart disease or weakness is established, the claimant satisfies the substantial contribution test of legal causation by proving that the work-related stress or exertion which allegedly caused the heart attack was greater than that which a person normally encounters in non-employment life. Steinberg, 119 N.H. at 231, 400 A.2d at 1168; Guidry v. Sline Indus. Painters, 418 So. 2d 626, 633 (La. 1982); see, e.g., 1B A. Larson, supra at 7-280. Medical testimony is not necessary on this issue. See 1B A. Larson, supra at 7-280-81.\\nRegardless of which test of legal causation is appropriate in a given case, the test of medical causation remains the same: did the work-related stress or exertion probably cause or contribute to the employee's heart attack as a matter of medical fact? (\\\"Probably\\\" in this context refers to the preponderance of the evidence standard.) Steinberg, 119 N.H. at 231, 400 A.2d at 1109; Price River Co. v. Industrial Com'n, 731 P.2d 1079, 1082 (Utah 1986).\\nIn this case, the plaintiffs argued that the substantial contribution test was the appropriate test of legal causation because the deceased allegedly suffered from heart disease prior to his death. Therefore, the plaintiffs had the burden to establish the existence of that prior heart condition. 1B A. Larson, supra at 7-294. Although the deceased had no prior symptoms or medical history of heart disease, the master determined that the substantial contribution test of legal causation was appropriate based on the statistical assumption of the experts that the deceased had prior heart disease because he would not otherwise have had a heart attack. Compare Lamoreux v. W.C.A.B. (Celotex Corp.), 92 Pa. Commw. 1, 497 A.2d 1388 (1985), with 1B A. Larson, supra at 7-291-94.\\nThe master could not reasonably do this in light of Dr. Ross's repeated testimony that he did not know the cause of Johnson's death. Thus, there was no evidentiary predicate on the record in this case to require the \\\"substantial contribution\\\" test. It necessarily follows that the master's determination that compensation should be denied because \\\"the [claimant] did not establish to a reasonable degree of medical certainty that Jeremiah Johnson's employment substantially contributed to his death\\\" was error. (Emphasis added.) This created an erroneous combination of the issues of legal and medical causation and improperly raised claimant's burden of proof on the issue of medical causation. Therefore, we reverse the decision of the superior court, and remand the case for a new trial.\\nReversed and remanded.\\nAll concurred.\"}"

nh/4415533.json

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+"{\"id\": \"4415533\", \"name\": \"Ralph Colby v. Treisman Brothers\", \"name_abbreviation\": \"Colby v. Treisman Bros.\", \"decision_date\": \"1931-02-03\", \"docket_number\": \"\", \"first_page\": 19, \"last_page\": \"21\", \"citations\": \"85 N.H. 19\", \"volume\": \"85\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T01:46:25.402079+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Ralph Colby v. Treisman Brothers.\", \"head_matter\": \"Sullivan,\\nFeb. 3, 1931.\\nRalph Colby v. Treisman Brothers.\\nBarton & Shulins (Mr. Shulins orally), for the plaintiff.\\nDemond, Woodworth, Sulloway & Rogers (Mr. Jonathan Piper orally), for the defendant.\", \"word_count\": \"966\", \"char_count\": \"5492\", \"text\": \"Marble, J.\\nThe plaintiff, a truckman, was accustomed to call regularly at the defendant's place of business on Depot street, in Concord, for the purpose of collecting merchandise to be delivered to the defendant's customers. He invariably entered from Depot street while his assistant drove the truck to a loading platform located in a passageway at the rear of the premises.\\nPackages left on this platform were loaded directly onto the truck, but those which were left on the shipping floor were first lowered to the level of the platform by a freight elevator. When this elevator was not on the shipping floor, the shaft was guarded by a movable gate and by covers or hatches which opened and closed with the movement of the elevator.\\nThe plaintiff operated the elevator himself when he found packages on the shipping floor, but if there were no packages there (as was the case on the day of the accident), he did not ride down on the elevator, but walked across the hatches, passed under the gate, which was suspended a few feet above the hatches by a rope, and jumped down to the loading platform to join his helper in the passageway. He testified that Hyman Treisman, superintendent and \\\"one of the owners\\\" of the corporation, had seen him go out in this manner without ob jecting, and that he had observed others, including the superintendent and an employee, leave the premises in the same way. The exit at this point was the only exit from the back of the building.\\nIn passing under the gate on other occasions he had placed his hand on the bottom of the gate \\\"just to see that\\\" his \\\"head cleared\\\" it. As he did this on the occasion in question, the rope broke, letting the gate fall upon him and causing the injuries for which he seeks recovery. The superintendent knew that the rope was defective but had neglected to replace it. The defendant concedes that the plaintiff was authorized to descend in the elevator, but contends that such authorization did not include an invitation to go out over the hatches and under the gate. While it is true, as suggested, that a property owner's obligation to an invitee \\\"does not extend beyond the use invited\\\" (Lavoie v. Company, 79 N. H. 97, 98), the facts here preclude a peremptory application of the rule in the defendant's favor.\\nThe New Hampshire cases on which particular stress is laid may, for the purposes of this discussion, be sufficiently distinguished either on the ground that the plaintiffs were not deemed to be invitees at ali (Clark v. Manchester, 62 N. H. 577; Hughes v. Railroad, 71 N. H. 279; Devost v. Company, 79 N. H. 411, 414; McCaffrey v. Company, 80 N. H. 45, 47) or because the evidence was insufficient to justify a finding that the defendants ought to have anticipated the plaintiff's conduct (Morrison v. Company, 70 N. H. 406; Straw v. Company, 76 N. H. 35). Many of the decisions of foreign jurisdictions cited in the defendant's brief are similarly distinguishable; one is decided on the ground of contributory negligence (Knox v. Company, 69 Hun 231), while others, such as Stickney v. Salem, 3 Allen 374, 376, are of doubtful authority in this state. Ahern v. Concord, 82 N. H. 246, 247.\\nThe facts on which recovery was denied in Leavitt v. Company, 69 N. H. 597, are entirely at variance with those here disclosed. In that case the use of the elevator which caused the accident had been forbidden, the defendant had directed the man in charge to keep it locked, the plaintiff knew that no one was allowed to ride on it, and he himself had never been on it before.\\nThe defendant in the present case, having invited the plaintiff to enter its building for business purposes, was required to keep in reasonably safe condition such portion of the premises as it ought reasonably to have foreseen he would be likely to occupy in performing his work. True v. Company, 72 N. H. 154; Stevens v. Company, 73 N. H. 159; Hobbs v. Company, 75 N. H. 73, 81; Nolette v. Company, 81 N. H. 222; Derosier v. Company, 81 N. H. 451, 466, 467, And on the evidence the corporation was properly chargeable with knowledge that he might take the same route from the building on that day that he had taken before when there were no packages to be conveyed by the elevator, and that he might also touch the gate as a reasonable incident of his departure. Ahern v. Concord, 82 N. H. 246.\\nThe suggestion that the superintendent had never seen him place his hand upon the gate is not borne out by the evidence. The plaintiff himself testified affirmatively and positively on that point.' The same is true of the contention that the plaintiff let himself down by swinging on the gate. He testified: \\\"I didn't put my hand up there to pull down on it\\\" and \\\"I put no weight whatsoever\\\" \\\"on it.\\\" The jury were entitled to accept his statements as true. They were likewise justified in concluding that the defendant was aware that the rope might break at any time: it was \\\"bad\\\" and had been in that condition for a long while.\\nThe claim that the exception should be overruled because of the plaintiff's contributory negligence does not require serious consideration. P. L., c. 328, s. 13.\\nIn accordance with the agreement under which the defendant's motion was granted, the order is\\nJudgment for the plaintiff for $1,000.\\nAll concurred.\"}"

nh/4418861.json

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+"{\"id\": \"4418861\", \"name\": \"Rebecca Hurlich, Adm'x, v. Boston & Maine Railroad; Louis Weinstein v. Same\", \"name_abbreviation\": \"Hurlich v. Boston & Maine Railroad\", \"decision_date\": \"1924-05-06\", \"docket_number\": \"\", \"first_page\": 286, \"last_page\": \"288\", \"citations\": \"81 N.H. 286\", \"volume\": \"81\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:14:46.779325+00:00\", \"provenance\": \"CAP\", \"judges\": \"Snow, J., did not sit: the others concurred.\", \"parties\": \"Rebecca Hurlich, Adm\\u2019x, v. Boston & Maine Railroad. Louis Weinstein v. Same.\", \"head_matter\": \"Strafford, )\\nMay 6, 1924.\\nRebecca Hurlich, Adm\\u2019x, v. Boston & Maine Railroad. Louis Weinstein v. Same.\\nMathews & Stevens (Mr. Stevens orally), for the plaintiffs.\\nHughes & Doe and Snow & Cooper (Mr. Snow orally), for the defesbdantsv\", \"word_count\": \"944\", \"char_count\": \"5368\", \"text\": \"Plummer, J.\\nThe accident occurred on the Mill street railroad crossing in Milton. Hurlich was driving a Ford truck in an easterly direction over Mill street, and collided with a south-bound passenger train at that crossing. There is an embankment on the westerly side of the railroad track just north of the crossing, by which the view of trains going southerly is obstructed to travelers upon Mill street going easterly. This makes the crossing dangerous. There were no warning signs at the Mill street crossing as .required by law. P. S., c. 159, s. 4. The evidence of the plaintiffs tended to prove that as the train, which collided with the truck, approached the crossing, the whistle was not blown at the whistling post north of the crossing in accordance with the provision of the statute. P. S., c. 159, s. 6. This evidence (Evans v. Railroad, 66 N. H. 194), together with the failure of the defendants to maintain warning signs at the crossing, would warrant a finding that the defendants were guilty of negligence in respect to the accident.\\nIt is the contention of the defendants that Hurlich was guilty of contributory negligence, and therefore that the plaintiffs cannot maintain these actions. Whether the decedent was guilty of contributory negligence is a question for the jury, unless the evidence conclusively establishes that fact. Fuller v. Railroad, 78 N. H. 366, 367; Quimby v. Railroad, 79 N. H. 529, 530. The evidence relating to the conduct of Hurlich just prior to the collision was very meager. Only one witness saw him driving the truck towards the crossing. This witness had a view of the decedent as he approached the track for more than twenty feet, and until he was about twenty feet west of the crossing. She testified that he was driving very slowly, and it could be found from her evidence that he was looking north, the direction from which the train was coming. There was no evidence as to what the conduct of Hurlich was as he passed over the last twenty feet before reaching the crossing. The evidence was that when he was twenty feet west of the track he could see the train coming for two hundred and thirty-five feet. The evidence of the defendants was that the train was approaching the crossing at from twenty to twenty-five miles an hour, but the plaintiffs claim the speed of the train was greater, and there was some evidence to substantiate their claim. Hurlich might have seen the train and thought it was safer to try and cross the track, than it was to attempt to stop. The only evidence relative to the speed he was traveling was that he was driving very slowly. If he was going ten miles an hour when he was within twenty feet of the crossing, he would have had less than two seconds in which to act before reaching the crossing. He may have erred in judgment, and might have avoided the collision if ho had stopped. But \\\"a mere error of judgment is not necessarily negligence.\\\" Folsom v. Railroad, 68 N. H. 454, 460. \\\"Being compelled to choose in a situation of danger between different courses of action, the fact that what he did resulted in injury, while by an opposite course he could have escaped harm, does not conclusively establish his fault.\\\" Olney v. Railroad, 71 N. H. 427, 432. \\\"What constitutes negligence in a given exigency is a question for the jury, and not for the court.\\\" Paine v. Railway, 63 N. H. 623; Carney v. Railway, 72 N. H. 364, 372. He might have erred in judging the speed of the train approaching the crossing, and for that reason concluded he had time to cross the track. \\\"There is reason to believe a mistake on this point is the cause of many accidents. . . . Whether a train is going twenty miles an hour or forty, is a question on which the opinion of but few observers would be considered valuable by a railway expert. In estimating time, distance, and rapid motion, the mass of men are inexpert. For various reasons, when they see a train at a considerable distance coming towards them at the rate of thirty-five or forty miles an-hour, they have little ability to measure the danger of crossing in front of it. They are not ignorant' of the probable consequences of a collision, but are likely to be misled by an erroneous view of the probability of a collision.\\\" Huntress v. Railroad, 66 N. H. 185, 190. Hurlich may have been relying upon the whistling signal to warn him of the approach of a train, and not hearing a whistle, he may not have seen the train until it was impossible to avoid the collision. \\\"The jury were amply warranted in finding that he was justified in relying for his protection upon the whistling signal which his evidence tended to show was not given.\\\" Doody v. Railroad, 77 N. H. 417, 418. \\\"Whether he was at liberty to rely upon it altogether is a question of fact, and not of law.\\\" Smith v. Railroad, 70 N. H. 53, 83. Under the circumstances surrounding this accident, it cannot be said, as a matter of law, that the evidence conclusively established that Hurlich was guilty of contributory negligence. That question should be determined by a jury.\\nExceptions overruled.\\nSnow, J., did not sit: the others concurred.\"}"

nh/4419647.json

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+"{\"id\": \"4419647\", \"name\": \"Perley v. Brown & a.\", \"name_abbreviation\": \"Perley v. Brown\", \"decision_date\": \"1846-12\", \"docket_number\": \"\", \"first_page\": 404, \"last_page\": \"409\", \"citations\": \"18 N.H. 404\", \"volume\": \"18\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Superior Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T23:09:27.408341+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Perley v. Brown & a.\", \"head_matter\": \"Perley v. Brown & a.\\nIf'a plain\\u2019tiff\\u2019in- equity allege that the defendant'removed\\u2019certain goods without the consent of the plaintiff, and it appear that he removed them by reason of having, at the plaintiff\\u2019s request, given his receipt for them to an officer who has attached them, the allegation is disproved.\\nA bailee of goods attached, while he remains liable to the officer on his receipt, is not liable to the general owner.\\nIn- Chancery; The complainant, and the defendant,. William Brown, on the 25th day of September, 1839, entered into articles-of copartnership in the business of the manufacture of sash, blinds, doors, &c., for the term of seven years from the first of the ensuing January, determinable at the election of either party, if the business should be unprofitable at the end of two years. The-plaintiff- agreed to furnish a certain' building; properly fitted' up with gear, including drums, at a rent of $100; to furnish at the market price all the timber which might be required; to attend to the sale of the manufactured articles and making contracts abroad, but not to exclude Brown from doing the same.\\nBrown was to furnish tenoning, morticing, sash and planing-machines, circular saws, moulding-machine, and a machine for ploughing doors, and other needful machines, charging at the rate of not over 12 per cent, a year for their use.\\nThe articles further provided for the common ownership of the property manufactured, a community of profit and loss, keeping of accounts, &e.\\nThe bill then stated that the preliminary arrangements provided in the articles were completed, and the parties commenced business, and prosecuted it till the 30th of April, 1840, when Brown wholly abandoned the business, the firm having then on hand doors, sashes, and other things, finished or in the progress of manufacture:\\nThat on the same day, the other defendant, Lorenzo D. Brown, -with the aid of William, but wholly without the consent of the plaintiff, took and carried away all the machinery that had been used in the shop, together with all the articles in the process of manufacture, and removed the same to Concord, and there withheld them from the plaintiff; and refuses, upon his demand, to re-deliver the same, or to render an account of them, or of such part thereof as belonged to the copartnership :\\nThat the plaintiff has been obliged to pay large sums of money on account of the copartnership, which have not been reimbursed to him, and that he has not been repaid for the stock which he furnished, and that the defendants had notice, and were requested to deliver the property for the plaintiff to apply to his indemnity.\\nThe bill prays that the defendants may be required to deliver the property described, or to account for the same, and for general relief.\\nThe defendants answered severally, to the effect that while the firm were proceeding in business, and were in the course of manufacturing a'large number of doors for Goodwin and another, the plaintiff caused actions to be commenced against the firm, and other actions were at the same time commenced, upon which the property of the firm, and likewise the property of the partner, \\\"William Brown, was attached, and the business of the firm was stopped by that event on the 18th of April, 1840 :\\nThat with the assent of the plaintiff, Lorenzo D. paid two of the debts on which the property of William was attached, and took from William a mortgage of his property to secure a debt of $400, due and owing to him:\\nThat the principal part of the stock on hand at this time was that which was in manufacture to fulfil the contract with Goodwin, and the plaintiff\\u2019 requested \\\"Lorenzo D. to give his receipt for the same to the officer who made the attachment, which was done:\\nThat with the assent of this plaintiff, Lorenzo L>., on . the 14th of April, paid a debt due from the firm to one Skinner, with costs of a suit that had been brought thereon :\\nThat he removed the stock of the firm to Concord, and completed the manufacture of it in the execution of the contract with Goodwin, to whom the articles were delivered :\\nThat upon the recovery of a judgment in one of the suits which were brought against the firm, an action was brought by the officer upon the receipt that had been given, and a.judgment rendered against the defendant, Lorenzo D., for $77.48, and costs, which he paid:\\nAdmits that the plaintiff has paid some small claims against the firm, but to what amount the party answering does not know.\\nThe answer of William Brown sets up, as a defence, his discharge and certificate under the United States .bankrupt law.\\nProof was taken, and it appeared that suits, as stated in the answers, had been commenced, and that the property of the firm and property of William Brown was attached and bailed by the officer to the defendant, Lorenzo D. Brown ; that the whole was removed by him to Concord ; that a part of the stock attached was manufactured and delivered to Goodwin upon the contract, who paid the value to Lorenzo D. Brown. It also appeared that he paid some of the debts, at the request of the plaintiff, as stated, and that the officer recovered a judgment against him upon one of the receipts, but whether upon a receipt given for the partnership property, or on one given for the private property of William B., did not distinctly appear.\\nLyford, for the plaintiff.\\nThe evidence shows that the property of the firm, to the value of $185, was received by Lorenzo D. Brown. lie is accountable for that property, as stated in the receipt that he gave Smith, the deputy sheriff, for it. He made some bargain to deliver the property to Goodwin, but it does not appear what the bargain was.\\nThe judgment which Smith recovered against Lorenzo D. Brown, and which the latter paid, was upon the receipt which he gave for the separate property of William Brown. The sheriff pursued this, and not the partnership property for the satisfaction of the judgment which was obtained against the firm. L. X). Brown has never accounted for the partnership property for which the bill is brought.\\nPerley, for the defendants.\\nThe bill states no ground for equity jurisdiction. It is not a bill to liquidate partnership affairs. There is no fraudulent combination between the defendants. There was no refusal of William Brown to join in a suit for the protection of the rights of the firm. No fraud is alleged. The bill simply alleges that one of the defendants withholds from one partner the property of the firm. What decree can he have ?\\nThere is no ground of an action at law, even. The valuation in the receipt is final, and the receipter has accounted for this to the officer. If he has not done so, he is liable to do it. Bissell v. Huntington, 2 N. H. Rep. 142.\", \"word_count\": \"1636\", \"char_count\": \"9394\", \"text\": \"Gilchrist, J.\\nThe case made by the. plaintiff is, that he himself and the defendant, William Brown, were prosecuting in copartnership the business of manufacturing doors, blinds, sashes, and other things, and had in their possession a quantity of stock, which was in the process of manufacture; that on the 18th of April, 1840,the defendant named abandoned the business, and that immediately afterward the other defendant, Lorenzo D. Brown, with the aid of William, without the plaintiff's consent, removed the stock from the shop to Concord; that he retained and refused to deliver it to the plaintiff, or to account for it. The bill further states that the plaintiff has paid some of the debts of the firm, and is entitled to the possession of the property for his remuneration and indemnity.\\nBut it 'appears in evidence that the possession which Lorenzo D. Brown took of the property was in consequence of a receipt for it, which he had given to an officer who had attached it to satisfy claims against the firm, and that this bailment was assumed by him, at the request of the plaintiff himself. The defendant had, therefore, a right to remove the goods, and to retain them for the purposes required by the receipt which had been given for them. The plaintiff's case is, therefore, disproved, and if there were no other impediment, he could not prevail, since he can do so only secundum allegata et probata. And if the case had been stated as it has been proved, an answer would have been, that the defendant, Lorenzo X)., having become accountable to the officer by a legal eon- tract assented to by the plaintiff', another party cannot call him to account, at least without first showing that the purposes for which the bailment was assumed have been fully satisfied, and that the party suing is the one entitled to the goods next in succession, cither as the general owner, or as having a right to the possession on other sufficient grounds.\\nIt does not appear that the officer has not a claim upon the goods receipted for, to satisfy the demands on which they were attached.\\nSupposing these demands to have been satisfied, and that the general owner of the goods would be entitled to demand them of the reeeipter directly, the plaintiff is not such general owner, nor does he state or prove any collusion between his partner and the other defendant, such as to justify the bringing of this suit upon the ground of fraud.\\nAside, therefore, from several questions which have been made upon the evidence and otherwise, it is apparent that the plaintiff makes no case by his bill, nor does the evidence furnish one.\\nBill dismissed.\"}"

nh/4421090.json

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+"{\"id\": \"4421090\", \"name\": \"John Scammon & a., Ex'rs, Ap'ts, v. Edward N. Pearson, Adm'r, & a.\", \"name_abbreviation\": \"Scammon v. Pearson\", \"decision_date\": \"1921-05-03\", \"docket_number\": \"\", \"first_page\": 122, \"last_page\": \"126\", \"citations\": \"80 N.H. 122\", \"volume\": \"80\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:00:24.907456+00:00\", \"provenance\": \"CAP\", \"judges\": \"Young, J., did not sit: the others concurred.\", \"parties\": \"John Scammon & a., Ex\\u2019rs, Ap\\u2019ts, v. Edward N. Pearson, Adm\\u2019r, & a.\", \"head_matter\": \"Rockingham,\\nMay 3, 1921.\\nJohn Scammon & a., Ex\\u2019rs, Ap\\u2019ts, v. Edward N. Pearson, Adm\\u2019r, & a.\\nUpon a probate appeal, the appellant is limited to the questions presented by his reasons for appeal, while all matters involved are open to the appellee. \\u25a0\\nThe findings of a probate court are not of any effect until their verity .has been established by a decree.\\nA probate court has power upon petition, proper cause being shown, to open and revise a decree previously made.\\nUpon appeal from a probate decree so revising a former decree, all questions of fact decided in the decree appealed from, and which are included in the reasons for appeal, are open to the appellant; and the whole case on the petition is before the supreme court of probate for a correct decree.\\nA petition to open a decree is decided upon equitable grounds, and in the correction of errors the court will not be confined to those of which the petitioner complains; errors in his favor will be equally open for adjustment.\\nProbate Appeal. The appellants\\u2019 testator, William H. Jaques, in 1916 filed in the probate court an account as executor of the will of Elizabeth H. Jaques. Upon hearing, the probate court, August 14, 1916, made certain findings, among others that $20,000 American \\u2022Express Company bonds received by the executor were not income but part of the principal of the estate; and August 26, 1916, entered a decree charging the accountant with a balance of cash and securities in his hands amounting to $78,756.39. November 24, 1916, William died and the appellants were appointed executors under his will. In 1917, Pearson was appointed administrator d. b: n., with will annexed, of Elizabeth Jaques\\u2019 estate and. the First National Bank of Concord was appointed trustee under her will. Neither party appealed from the decree of August 26, 1916. August 15, 1917, the bank as trustee filed a petition in the probate court asking that this decree be set aside and altered' in so far as necessary to correct such errors and defects in the account as were apparent from an examination of the account itself and specifying among other errors a failure to charge the executor in the final decree with the $20,000 American Express Company bonds which the court had found not to be income.\\nUpon hearing, the court opened the decree and October 5, 1917, made a new decree in which with other changes the executor was specifically charged with the American Express Company bonds. The final decree of this date charged the accountant with a.balance of cash and securities amounting to $116,598.50. From this decree and the allowance of the bank\\u2019s petition the executors of William took this appeal. The court, Allen, J., in advance of hearing transferred from the May term, 1920, of the superior court the following questions for consideration here:\\n1. Whether the findings of the probate court of August 14, 1916, constitute a decree and are to be treated as res adjudicata.\\n2. Whether the decree of August 26, 1916, was entirely set aside by the decree of October 5, 1917, or was modified only in so far as necessary to correct errors apparent from an examination of the account itself.\\n3. Whether the decree of August 26, 1916, was validly corrected as specified in the decree of October 5, 1917.\\n4. Whether the appellants by their appeal may raise the question of the distribution bonds of the Adams Express Company being principal or income.\\nScammon & Gardner and Elwin L. Page (Mr. Page orally), for the appellants.\\nWilliam W. Thayer and Harry J. Brown (Mr. Thayer orally), for the appellees.\", \"word_count\": \"1784\", \"char_count\": \"10280\", \"text\": \"Parsons, C. J.\\nThe substantial question between the parties is what questions are open upon the appellants' appeal from the decree of October 5, 1917, charging their testator as executor with a balance of $116,598.50. Upon a probate appeal the appellants are limited to the questions presented by their reasons of appeal while all matters involved are open to the appellees. This familiar and well understood proposition would not be transferred to this court as an important question of law except for the confusion which has arisen from the claim that certain findings made by the court preliminary to the decree of August 26, 1916, were to be treated as res judicata. But the findings of a trier of fact, whether a judge, jury, or referee, are not of any effect until their verity has been established by a judgment. Milford & Manchester R. R.'s Petition, 68 N. H. 570; Clough v. Moore, 63 N. H. 111, 113. \\\"There can be no estoppel from a verdict or finding until judgment has been ordered establishing the truth and verity of the same.\\\" Piper v. Railroad, 75 N. H. 435, 446; Smith v. Belknap County, 71 N. H. 203, 206. The judgment of the court was rendered August 26, 1916. The bank alleged in its petition that the American Express Company bonds were not included in the judgment then rendered. Upon hearing the petition the probate court found this allegation correct and entered a new judgment October 5, 1917, expressly charging the accountant with the bonds. By this procedure the verity of the finding of the court that the bonds were not income, assuming as appears to have been understood by the court and the parties that fact to be material, was not adjudicated until October 5, 1917. This judgment is opened by the appeal with all facts necessary to sustain it. The appellees cannot contend in their petition that the fact was not adjudicated in 1916, for the purpose of having the bonds charged against the accountant, and now contend it was embraced in the judgment of 1916 so as to preclude an investigation into the grounds of the decree. If the opening of the decree by the probate court is sustained, all questions of fact decided in the judgment then entered, included within the appellants' reasons of appeal, are open to them. The reasons of appeal put in issue the power of the probate court in law and as matter of fact to revise the decree of August 26, 1916. There is no doubt of the power of the probate court, proper cause being shown, to reopen and revise a decree previously made. Scammon v. Pearson, 79 N. H. 213; Reed v. Prescott, 70 N. H. 88. \\\"But the power is equitable in nature. It is not exercised upon the mere asking, nor for the sole purpose of overriding rules of law that stand in the way of maintaining proceedings at law. To entitle the plaintiffs to the relief they seek, there must be some substantial ground, such as fraud, accident, or mistake, which renders it against conscience to execute the decree they attack, and .of which they were prevented from availing themselves by fraud, accident, or mistake, unmixed with any fraud or negligence on their part.\\\" Knight v. Rollings, 73.N. H. 495, 502. The first question, therefore, for trial is whether the decree of August 26, 1916, should be set aside. If the facts found bring the case within the rules laid down by Judge Chase, the decree of August 26,1916, charging the accountant with $78,756.39 will be set aside to the extent authorized by the evidence and the question will arise what decree should be entered so far as the one made charging the accountant with $116,598.50 is challenged by the reasons of appeal, or is otherwise in issue. The appellees are not limited to the errors specified by the appellants. Patrick v. Cowles, 45 N. H. 553. As the petition to reopen the decree is decided upon equitable grounds, in the correction of errors the court will not be confined to those of which the petitioners com plain. Errors in their favor will be equally open for adjustment. It would be manifestly inequitable to correct one error and leave standing another which may have balanced it. The second question as to the scope of the action of the probate court is immaterial. The whole case on the petition is now before the supreme court of probate for a correct judgment. The third question, \\\"whether the decree of August 26, 1916, was validly corrected as specified in the decree of October 5, 1917,\\\" is the question in the case which the superior court will answer upon the facts found by application of the law hereinbefore stated. If the question intended is whether upon facts authorizing the action the probate court or the supreme court of probate has the power of correction attempted to be exercised, the question is answered in the affirmative. The answer to the fourth question, \\\"whether the appellants . . . may raise the question of the distribution bonds of the Adams Express Company being principal or income\\\" depends upon whether the disputed fact is material to the judgment to be rendered.\\nThe probate court appears to have understood the matter to be material, i. e. the executor is not to be charged if the bonds are income but is to be charged if they are not. If this be so, the fact is material and would be determined by the judgment. In such case, the question whether the bonds were income or principal would not only be a possible but a necessary issue to be determined in settling the account.\\nIf, on the other hand, the accountant is chargeable with the bonds whether income or principal, the question is an immaterial one, which would not be decided by the judgment even if submitted to and passed upon by the tribunal. Morgan v. Burr, 58 N. H. 470, 472. In that case, the question would not be determined by any judgment that has been or can be rendered in the accounting under review. No transfer has been made of any facts showing why the question is, or was thought to be, material. It may be the bonds, if income, belong to the accountant and are not properly chargeable to him as executor. If this be so, the issue is squarely raised and should be decided.'\\nIf technically not in issue, as the question seems to be the principal matter in dispute, the parties may be able to devise a method for its determination in this proceeding without delaying for a further accounting by the executors of Jaques, or the administrator of Mrs. Jaques with a petition for a decree of distribution, or a direct proceeding by Jaques' executors against Mrs. Jaques' administrator for a legacy belonging to Jaques or some other procedure which it is possible may be technically required to determine the controversy.\\nCase discharged.\\nYoung, J., did not sit: the others concurred.\"}"

nh/4424347.json

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+"{\"id\": \"4424347\", \"name\": \"Smith & Sargent v. American Car Sprinkler Company\", \"name_abbreviation\": \"Smith v. American Car Sprinkler Co.\", \"decision_date\": \"1916-04-04\", \"docket_number\": \"\", \"first_page\": 152, \"last_page\": \"160\", \"citations\": \"78 N.H. 152\", \"volume\": \"78\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:02:43.322070+00:00\", \"provenance\": \"CAP\", \"judges\": \"Young, J., dissented as to the interpretation of the statute: the others concurred.\", \"parties\": \"Smith & Sargent v. American Car Sprinkler Company.\", \"head_matter\": \"Sullivan,\\nApril 4, 1916.\\nSmith & Sargent v. American Car Sprinkler Company.\\nThe right to recover a forfeiture for the wilful cutting of trees, conferred by P. S., c. 244, s. 1, upon the person injured, was not abolished by Laws 1899, c. 31, s. 1.\\nWhere a lease contains a covenant by the lessors that upon payment of a certain sum the right of the lessors to enter into the premises should be utterly extinguished and in lieu thereof the lessee should hold the premises by paying a nominal rent, if demanded, upon performance of the condition the title becomes practically a freehold clogged with such rent charge.\\nA thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.\\nAn oral promise to transfer land, if the promisee \\u201cgo there and live and fix up the buildings,\\u201d is sufficient to establish an equitable title upon proof of performance in reliance upon the promise.\\nThe objection, that the statute on which an action is founded has been repealed, may be taken, though for the first time, in the supreme court.\\nAn objection to the insufficiency of evidence must be made before the case is submitted, unless the omitted necessary fact is impossible of proof.\\nDebt, upon c. 244, P. S., for a penalty for wilfully cutting trees. Plea, the general issue with a brief statement admitting the cutting but alleging the defendants\\u2019 belief in their ownership of the land, and that the plaintiffs had no interest in it. Trial by jury and verdict for the plaintiffs. Transferred from the May term, 1914, of the superior court by Branch, J.\\nThe land upon which the cutting was done was lot 31 in the third division in the town of Lempster, originally drawn to the right of the Glebe and known as \\u201cchurch land.\\u201d The plaintiffs claimed title under a warranty deed of said lot 31 from Orrin R. Howard, dated Aug. 7, 1912, and traced title through a warranty deed from Joe W. Bean to Howard, Jan. 19, 1911; a quitclaim deed to Bean from the Trustees of the Protestant Episcopal Church in New Hampshire, June 17, 1893; deed from the Trustees of Donations to the Protestant Episcopal Church, a Massachusetts corporation, to the grantor last above named, March 15, 1877, conveying to the.grantees the so-called church lands in New Hampshire; copy conveyance by Alexander B. Griswold and two others, a committee authorized by a diocesan convention of the Eastern Diocese of the Protestant Episcopal Church to execute the same to the Trustees of Donations to the Protestant Episcopal Church, Dec. 27, 1812, conveying all the so-called church land in New Hampshire.\\nThe plaintiffs also offered a lease from the Trustees of Donations to the Protestant Episcopal Church, dated March 30, 1826, to Laurin Beckwith of lot No. 31 in Lempster for the term of nine hundred and ninety-nine years; this lease was upon a yearly rent of three dollars. In it the trustees covenanted that the lessee, or his assigns, having paid to them all rent in arrears and having paid to them or their treasurer the sum of fifty dollars, the rent aforesaid and the right of said trustees to enter into said premises shall be utterly extinguished and in lieu thereof the said lessee or occupant or occupants of the premises shall hold and enjoy the demised premises by paying a mill a year only, if demanded. There was evidence that Phineas Richardson lived upon lots No. 32 and 31, which were known as the Phineas Richardson place, and that he owned the lease of lot 31, originally issued to Laurin Beckwith, and paid the rent on it for many years. Joe W. Bean, the grantor in the second deed of warranty introduced by the plaintiffs, was the son of Agnes Richardson Bean and the grandson of Phineas Richardson. He testified his grandfather and mother agreed to give him the place if he would go down there and live there and fix up the buildings, that he did so and the church lease was given him but there were no other writings. After receiving the lease, Bean went with it to George L. Farwcll, treasurer of the Trustees of the Protestant Episcopal Church in New Hampshire, paid the back rent due on the lease and the fifty dollars and received the quitclaim deed introduced in the case. The defendants excepted to the introduction of this deed because authority for its execution in the officer executing the same was not shown. The deed bore on its margin a memorandum of a vote of the trustees, Nov. 17, 1892, authorizing the treasurer to execute the same, signed, George L. Balcom, clerk. The corporation records of the trustees, Nov. 17, 1892, did not con tain a record of such vote. The present clerk was permitted to testify subject to exception that it was possible votes were taken which were not recorded and that from his knowledge of Mr. Balcom he would expect he would not sign such a certificate unless it were true. The defendants also excepted to the evidence of the agreement between Joe Bean, his mother and grandfather.\\nThe defendants offered in evidence a deed from Read Bros, dated Dec. 16, 1905, conveying \\u201calso that part of lot No. 31 in said third division of lots which is not known as church land;\\u201d deed Susie B. Hurd to Read Bros, with the same description, Dec. 1, 1905; quitclaim deed Geo. W. Hurd to Susie B. Hurd, July 13, 1904, containing the following: \\u201calso one other lot containing sixty-seven acres more or less of the said third division being lot No-. 31;\\u201d tax collector\\u2019s deed, Elbert E. Hurd to George W. Hurd, June 29, 1904, containing the same description. The record of the sale describes the property sold as \\u201cThe Phineas Richardson farm (except such' part of said farm as is owned separately from the other heirs by J. W. Bean).\\u201d The defendants also offered in evidence the following deeds: deed, Elisha A. Huntley to Agnes Bean, August 25, 1871, of \\u201ca certain tract or parcel of land situated in Lempster . . . known by the name of Timothy Green\\u2019s heirs, supposed to contain seventy-five acres more or less; also all of our interest in or claim unto one other lot or tract of land situate in said Lempster, being lot No. 31 in the said division containing sixty-seven acres, more or less, and drawn to the right of the Glebe\\u201d; deed from Phineas Richardson to Elisha A. Huntley, July 20, 1871, conveying \\u201ca certain tract or parcel of land situate in Lempster aforesaid, it being the farm upon which I now reside,\\u201d the remainder of the description being identical with the foregoing. Mrs. Hurd was a daughter of Agnes. Richardson Bean, there being four other children living at Mrs. Bean\\u2019s death besides Mrs. Hurd and Joe. Elbert E. Hurd, the husband of Susie B. Hurd, testified that he acted for his wife in making the trade, but subject to exception the court excluded the inquiry made of him by the defendants, whether the trade between him and Mr. Read called for the whole of Mrs. Hurd\\u2019s interest in lot 31. The court understood the inquiry to mean whether Mrs. Hurd intended to convey not only the interest acquired by the tax title but also any interest she might have in lot 31 as an heir of her mother. The defendants excepted to evidence as to the value of the timber, which was received by the court from certain witnesses.\\nThe defendants requested an instruction that in the absence of a writing Joe Bean did not acquire any interest in the land and that his only interest was as an heir of Agnes, which gave him one-sixth of her interest if she had any, and that if Susie B. Hurd had an undivided interest in the timber as heir of Agnes, which was conveyed to Read Bros, and by them to the defendants, they cannot be held in wilful trespass for cutting the same, and excepted to the refusal to give such instructions as were not given.\\nThe court instructed the jury that the defendants had no title and that if Joe Bean was promised the farm and church land as he testified and if in reliance upon that promise he took possession and repaired the buildings and the lease was turned over to him in fulfilment of the promise, Joe acquired a complete equitable title sufficient to authorize the plaintiffs to maintain this action. There were no exceptions to the charge.\\nJesse M. Barton (by brief and orally), for the plaintiffs.\\nJoseph S. Matthews and Frank 0. Chellis (Mr. Matthews orally), for the defendants.\", \"word_count\": \"3575\", \"char_count\": \"20286\", \"text\": \"Parsons, C. J.\\nThe defendants' contention that the statute upon which the action is founded has been repealed comes a little late but is clearly open to them. Glover v. Baker, 76 N. H. 261, 262; Petition of Moebus, 73 N. H. 350, 351; Hutchinson v. Railway, 73 N. H. 271, 272. It may b'e conceded that the action is not compensatory but punitory, that it is for a penalty, Morrison v. Bedell, 22 N. H. 234; Janvrin v. Scammon, 29 N. H. 280; Coulombe v. Eastman, 77 N. H. 368, and that the doing of an act to the performance of which a penalty is attached by statute is a violation of the statute. Williams v. Tappan, 23 N. H. 385, 391; Roby v. West, 4 N. H. 285, 287; Bartlett v. Vinor, Carth. 251; 1 Kent Com. *467.\\nIt must also be conceded that Moffie v. Slawsby, 77 N. H. 555, is an authority which supports the defendants' present contention. Moffie v. Slawsby was placed upon the ground announced in Bartlett v. Mansfield, 76 N. H. 582, that \\\"the private action for a penalty was abolished by chapter 31, Laws 1899.\\\" The statement was sound upon the facts in Bartlett v. Mansfield but in the use made of it in Moffie v. Slawsby there was no discussion of the question whether the application of the repealing statute was affected by the fact that the right of recovery was by the statute inflicting the penalty (P. S., c. 203, s. 2), limited \\\"to the person aggrieved who will sue therefor.\\\" The section inflicting the penalty is not recited in the opinion and the possible distinction apparently escaped notice. In all other cases where the statute has been construed to effect a repeal of private right to a penalty the right has been given to any prosecutor or complainant or person who should sue therefor. Hibbard v. Fertilizer Co., 70 N. H. 156; State v. McConnell, 70 N. H. 158, 159; Noyes v. Edgerly, 71 N. H. 500, 503.\\nThe statute now involved, P. S., c. 244, s. 1, confines the right to recover the penalty to \\\"the person injured.\\\" The distinction is the same as that presented but not discussed in Moffie v. Slawsby, and is therefore fairly open for consideration.\\nThe law of 1899 after providing that no complainant or prosecutor, with certain exceptions not now material, should 'be entitled to any part of a fine or forfeiture imposed or collected under the liquor statute (P. S., c. 112), continues: \\\" and all other statutory provisions whereby the complainant or prosecutor is entitled to the whole or any part of the penalty imposed for the violation of any other provisions of the Public Statutes, or amendments thereto, are hereby repealed.\\\" Laws 1899, c. 31, s. 1. The subject of the recovery sought in this case, and in Moffie v. Slawsby, is a penalty imposed for the violation of a provision of the statute which the statute by authorizing recovery gives to the prosecutor. But although the statutes are penal, the limitation of the right of recovery to the person \\\"injured\\\" or \\\"aggrieved\\\" indicates that the purpose was to some extent remedial. If the repealing statute had said \\\"any person prosecuting or complaining, \\\" it would be clear the purpose, was to confine the repeal to cases where persons in no way interested might engage in prosecutions for the profit thereby to be obtained. The present action is within the terms of the repealing statute and would be also within _a general purpose to repeal all authority for the private enforcement of provisions purely penal, but not within.a purpose to repeal only such provisions as in effect permitted any p\\u00e9rson to engage in the enforcement of the criminal law for profit. That the present statute may be within the letter of the repealing act is not sufficient, \\\"a thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.\\\" Stanyan v. Peterborough, 69 N. H. 372, 373; Opinion of the Justices, 66 N. H. 629, 647, 657. While the question is by no means free from doubt, upon careful considera tion the conclusion is that the repeal was intended to be limited to provisions which gave to any person without reference to any interest in the matter a share in any penalty or forfeiture and that it was not intended to extend the repeal to provisions which might be regarded as in some sense remedial because the prosecution was limited to persons injured or aggrieved. The moving cause of the legislation was undoubtedly practices that had grown up or were suspected to exist under the liquor law. Under this statute, as in the case of the guide-board statute,, there was at least a suspicion that prosecutions were moved for private profit purely. To cure -this evil was the probable purpose of the repeal and the repeal was -probably intended to extend only to statutes of exactly similar -import and effect. So construed, the statute does not repeal c. 244, P. S.\\nThe reason upon which Moffie v. Slawsby was placed is found to be untenable upon examination. Whether the result then reached as to the usury statute is sustainable upon any other ground is not material. The objection, that the statute upon which the action is founded has been repealed, is overruled.\\nThis result renders it necessary to consider the exceptions taken in the superior court.\\nThe statute in so far as material is, \\\" Whoever shall cut, . . . wilfully and unlawfully any tree, . . . standing or being on the land of another . . . shall forfeit to the person injured . . .\\\" P. S., c. 244, s. 1. The defendants admitted the cutting but ,set up in their brief statement a belief in their ownership of the land and that the plaintiffs had no interest.\\nThe issues set up, therefore, were whether the plaintiffs were persons injured within the meaning of the statute and did the defendants knowingly cut the trees believing they had no title to them? \\\"To recover a forfeiture under this statute, the plaintiff must prove a wilful and malicious trespass. The statute was not intended to give a new mode of trying disputed titles.\\\" Morrison v. Bedell, 22 N. H. 234, 237. The plaintiffs were bound to prove themselves persons injured. If the plaintiffs owned the trees they would be injured by their destruction. Whether their character as the persons injured would be affected by the character of their title the case presents no occasion to decide. See Davenport v. Newton, 71 Vt. 11. The defendants appear to have proceeded upon the theory that a technical defect in the plaintiffs' title would invalidate their claim of injury. To prove their ownership the plaintiffs intro duced a warranty deed to them of the wood and timber on lot '31 in Lempster and a similar deed from Joe W. Bean to Howard of said lot 31 and offered a copy of a quitclaim deed from the Trustees of the Protestant Episcopal Church in New Hampshire to Bean and subsequently introduced the original deed. The deed was signed, \\\"The Trustees of the Protestant Episcopal Church in New Hampshire by their Treasurer, George N. Far well.\\\" ' The defendants objected to the admission of this deed without proof of authority in the treasurer to execute the name. This was an objection to the proof of execution. But after proof of an original deed to himself a party may use an office copy of a deed in the chain of title to himself as prima facie evidence without proof of the existence and loss of the original. Harvey v. Mitchell, 31 N. H. 575, 582, and an original deed with the certificate of record may be used in the same way. Bellows v. Copp, 20 N. H. 492, 503. The course of the trial rendered this deed immaterial. There was evidence of a lease of lot 31 by the owner preceding the grantor in this deed for nine hundred and ninety-nine years at a rent of $3 per year. The lease contained a covenant by the lessors that upon payment of the back rent and $50 the right of the lessors to enter into the premises should be utterly extinguished and in lieu thereof the lessee or occupant or occupants of the premises should hold and enjoy the said demised premises, by paying a mill a year only, if demanded. Bean, holding this lease, paid up the back rent and the fifty dollars. His title under the lease became practically a freehold clogged with a rent charge of one mill per year, if demanded. Montague v. Smith, 13 Mass. 396, 403.\\nThat Phineas Richardson lived upon lots 32 and 31 which were known as the Richardson place and that he held lot 31 under a lease from the church was not controverted. Joe Bean was the grandson of Phineas and the son of Agnes Richardson Bean. Conveyance of lot 32 and of his interest in lot 31 to Agnes Richardson Bean from Phineas Richardson were in evidence. The defendants objected to evidence of an oral contract by which Joe's mother and grandfather-agreed to give him the place if he would go there and live and fix up the buildings, which was carried out by him. The evidence was sufficient to establish Bean's equitable title and the defendants' exceptions to the evidence and to the court's failure to instruct the jury that the evidence failed to establish ownership in Bean are overruled. White v. Poole, 74 N. H. 71, 73; S. C., 73 N. H. 403.\\nThe competency of the witnesses who gave their opinion as to value was for the trial court.\\nThe defendants excepted to inquiries as to statements made by a Mr. Dodge, superintendent of the defendants' lumbering operations in Lempster, as to the defendants' ownership. These exceptions have not been argued and are understood to have been waived. The testimony of Hurd as to what the trade was to be between his wife and Read may have been, if communicated to the defendants, competent in connection with other evidence as tending to show their good faith. It was incompetent upon the question of title; but while title would have been a good defence, that the defendants understood they owned the trees would have been equally as good a defence in this action. Whether there was evidence which was or could have been offered connecting the excluded evidence so as to make it material does not appear from the case. As the case stands, the excluded evidence tends to show, if anything, Read's understanding only, and so far as appears is immaterial upon the defendants' good faith.\\nExcept as to the effect of the oral contract already referred to, the substance of the instructions requested appears to have been given, for the jury were told it was essential for the plaintiffs to establish the oral contract between Bean and his mother to enable them to maintain this action.\\nThere was no motion for a nonsuit or directed verdict, the case being submitted without objection by the defendants.\\nAfter the verdict, the defendants moved to set the same aside ds against the law and the evidence. This motion raises merely a question of fact as to the weight of the evidence which is determined by the superior court. It raises no questions of law which have not previously been preserved by exception.\\nSubsequently, the defendants asked an exception to the verdict upon the ground that the evidence was insufficient to warrant a verdict for the plaintiffs and that the facts presented by the record disclose that the deficiency is incapable of being supplied. The court refused to allow this exception upon the ground that the question as to the sufficiency of the evidence cannot be raised in this way, and transferred the question of law raised by this ruling.\\nThe rule which requires a party to object to the sufficiency of the evidence before the case is submitted is based upon the reason that, if the objection is made known then, the deficiency may be supplied.\\nBut if it appears from the record that the necessary fact is impossible of proof, the rule fails with the reason. The record at present does not sustain the claim. Until it is made to appear that the record does not, and cannot, by supplying omitted evidence, be made to sustain the verdict, the verdict must stand. Farnham v. Anderson, 74 N. H. 405.\\nExceptions overruled.\\nYoung, J., dissented as to the interpretation of the statute: the others concurred.\"}"

nh/4426239.json

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+"{\"id\": \"4426239\", \"name\": \"Olivier Girard, by her next friend Alph\\u00e9e Picard v. Boston & Maine Railroad. Corinne Lavigne v. Same\", \"name_abbreviation\": \"Girard v. Boston & Maine Railroad\", \"decision_date\": \"1917-05-01\", \"docket_number\": \"\", \"first_page\": 406, \"last_page\": \"408\", \"citations\": \"78 N.H. 406\", \"volume\": \"78\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:02:43.322070+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Olivier Girard, by her next friend Alph\\u00e9e Picard v. Boston & Maine Railroad. Corinne Lavigne v. Same.\", \"head_matter\": \"Hillsborough,\\nMay 1, 1917.\\nOlivier Girard, by her next friend Alph\\u00e9e Picard v. Boston & Maine Railroad. Corinne Lavigne v. Same.\\nIf remarks of counsel, to which a general exception was taken, correctly state the law as to the abstract rights of the parties, it will not be inferred, in the absence of further exception, that the court failed to instruct the jury how to apply the principles stated or that erroneous use was made of them.\\nCase, to recover for injuries from a collision upon a highway grade crossing of the defendant road. Trial by jury and verdicts for the plaintiffs.\\nException was taken to the following portion of the argument of counsel for the plaintiffs: \\u201cLet me call your attention in the first place to the fact that this was a public highway, and that these girls and this man, Barth, that they refer to, had just as good a right to be there that day as the Boston & Maine Railroad had, just exactly. They were exercising their rights as American citizens, gentlemen. They were on the public highway of Manchester, and although the Boston & Maine Railroad had a right to run its tracks over that crossing, that was not an exclusive right, and that did not mean that you and I and others might not go there, too, and travel up and down that street. We have not yet reached the point, \\u2014 we may sometime, \\u2014 but we have not yet reached the point where everybody has got to stand back when the Boston & Maine Railroad runs its trains. Not yet, I say, gentlemen. I say this: That Joseph Barth and Corinne Lavigne and Olivier Girard, each one of them, had just as good a right there. They were within their rights, everyone of them, and they had just as good a right to travel up and down that street, Silver street, that day, as the Boston & Maine Railroad had to run its trains over the crossing. It was a public highway, where the public, the traveling public, had a right to be. That is one circumstance.\\u201d Transferred by Pike, C. J., from the September term, 1916, of the superior court.\\nTaggart, Burroughs, Wyman & McLane (Mr. Wyman orally), for the plaintiffs.\\nBranch & Branch (Mr. Randolph W. Branch orally), for the defendants.\", \"word_count\": \"674\", \"char_count\": \"3803\", \"text\": \"Parsons, C. J.\\nThe statement of counsel to which objection was taken was a correct statement of the law as to the abstract right of the parties. Gahagan v. Railroad, 70 N. H. 441, 443. Whether the law as to the care required to be exercised by the parties in the exercise of their common and equal right was correctly stated by counsel in argument does not appear. In the absence' of further exception it cannot be inferred erroneous use was made of the abstract principle stated, or that the court failed to give such instructions as would enable the jury to apply the law. Counsel made no statement of fact and did not mis-state the law. The sentence to which special exception is taken, \\\"We have not yet reached the point, \\u2014 we may sometime, \\u2014 but we have not yet reached the point where everybody has got to stand back when the Boston & Maine railroad runs its trains,\\\" was a forceful statement of the legal proposition that a highway traveler is not necessarily in fault who is on a grade crossing, when the railroad attempts to occupy it.\\nIf for any reason developed in the course of the trial the form of expression used appeared likely unfairly to influence the jury, the presiding justice could have corrected such tendency. Sanders v. Railroad, 77 N. H. 381, 383; Hoxie v. Walker, 75 N. H. 308, 310. It cannot be held as matter of law that the expression created such a prejudice or so called attention to existing prejudices as necessarily to render the trial unfair. If in fact the verdict is the result of prejudice and not sustainable upon the evidence, relief must be sought in the superior court.\\nException overruled.\\nAll concurred.\"}"

nh/4429346.json

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+"{\"id\": \"4429346\", \"name\": \"State v. Robert Cornwell; State v. Kenneth D. Cornwell\", \"name_abbreviation\": \"State v. Cornwell\", \"decision_date\": \"1952-10-07\", \"docket_number\": \"No. 4138\", \"first_page\": 446, \"last_page\": \"448\", \"citations\": \"97 N.H. 446\", \"volume\": \"97\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:45:40.159651+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"State v. Robert Cornwell. State v. Kenneth D. Cornwell.\", \"head_matter\": \"Cheshire,\\nOct. 7, 1952.\\nNo. 4138.\\nState v. Robert Cornwell. State v. Kenneth D. Cornwell.\\nGordon M. Tiffany, Attorney General, and Harry C. Lichman, County Solicitor (Mr. Lichman orally), for the State.\\nErnest L. Bell, Jr., James S. Davis and Earl Brennan for the respondents, filed no brief.\", \"word_count\": \"846\", \"char_count\": \"4848\", \"text\": \"Kenison, C. J.\\nDuring the trial the respondents objected to the allowance of the sheriff's testimony to the effect that it was customary procedure to have a deputy assist him in attaching a motor vehicle and taking possession of it in order that it could be driven away and that the procedure was followed in this case. Evidence of a custom, usage, or standard practice is generally admissible in this state for the purpose of showing conduct on a particular occasion. State v. Hause, 82 N. H. 133. The standard practice in serving process is relevant evidence on the question of whether or not it was followed in a particular case. Hine v. Pomeroy, 39 Vt. 211, 219. It does not appear that the custom in this case was contrary to law and the competency of evidence of custom is well established in this jurisdiction and elsewhere. Buxton v. Langan, 90 N. H. 13, 15; I Wig. Ev. (3rd ed.) ss. 92, 93.\\nUpon direct examination the sheriff was asked the following question: \\\"Did you do anything on that day in any way to provoke this assault which is complained about?\\\" The question was objected to on the grounds that it was a self-serving declaration. The record does not indicate that the question was answered but it has been argued by the State as though the witness had made a negative answer to the question and will be so considered. \\\"In all trials evidence of conduct of a party which is in his favor on the issues is admitted without question and the fact that it 'self serves' him is no reason for its exclusion. Otherwise trials would obviously be greatly limited and evidence of rightful conduct to meet the charge of conduct that was wrongful would be excluded. While evidence of one's conduct and statements is to be excluded in many situations, it is by reason of some other rule than one which bars evidence because it is of a self-serving character.\\\" Caplan v. Caplan, 83 N. H. 318, 326. The sheriff's explanation of his conduct was therefore proper. Furthermore, it is consistent with the rule frequently followed here: \\\"There is no principle of Evidence especially excluding 'self-serving' statements by an accused or by anyone else.\\\" Clapp Co. v. McCleary, 89 N. H. 65, 66; Semprini v. Railroad, 87 N. H. 279, 280; Merchants Nat. Bank v. Sullivan, 96 N. H. 430, 435.\\nError is claimed in the exclusion from evidence of writs brought by the sheriff after October 6, 1950, in a civil suit against the respondents. The exclusion of this evidence is governed by State v. Proctor, 91 N. H. 347, 348: \\\"The evidence that a civil suit had been brought . . . had no bearing to indicate the defendant's innocence or weakness in proof of his guilt.\\\"\\nIn the direct examination of respondent Kenneth Cornwell by his counsel, he was asked if he ever had any trouble with the authorities. Upon cross-examination he was asked if he had been arrested on October 10 of the previous year for failure to contribute to unemployment compensation. The Court allowed the question \\\"as long as it was brought out on direct examination.\\\" This cross-examination of the respondent was proper as a relevant inquiry into his credibility thereby tending to discredit him as a witness. State v. Travis, 82 N. H. 220; State v. Grierson, 96 N. H. 36, 39.\\nIt is argued that the case should be dismissed because the evidence does not show that the officers were put in fear by the assault of the respondents. When the assault is accompanied by the infliction of actual injury, the crime is proven although no fear is occasioned thereby. See State v. Gorham, 65 N. H. 152.\\nIn the closing argument counsel for the State urged the jury not to give too much weight to character witnesses and argued that an acquittal in this case would be a victory for lawlessness and a victory for disrespect of a court order in the county. Objection was made that the argument was prejudicial, unfair and illogical. Arguments to the jury on behalf of the State or the respondent may be rhetorical, expansive and contain some defects in logic without necessarily being prejudicial. A jury may be urged to do its duty upon the evidence presented and it was proper to point out that character witnesses were not eye-witnesses to the assault. The argument was within the limits of legitimate advocacy and similar arguments have been upheld in other criminal cases. State v. Dinagan, 79 N. H. 7, 10; State v. Small, 78 N. H. 525.\\nOther exceptions taken during the trial relate to discretionary rulings of the Trial Court and no error is apparent in any of them.\\nExceptions overruled.\\nAll concurred.\"}"