61 A. 585 | N.H. | 1905
It may be doubtful upon which party the burden of the issue raised by the plea rested. It was ruled at the trial that it was upon the plaintiff. No exception was taken to this ruling. The plaintiff was permitted to make the closing argument, the defendants' request to do so having been denied. This denial was made by the trial judge as a matter of law and in the exercise of his discretion. If it was a matter of discretion and not of strict legal right, it is unnecessary to consider upon whom the burden of the issue rested. The inquiry therefore arises whether the privilege of making the closing argument is a matter of strict legal right, or one of discretion; and if the latter, whether the case presents such a failure of justice as to warrant setting aside the verdict in favor of the plaintiff.
This question was first considered in this state in the case of Judge of Probate v. Stone,
In Hardy v. Merrill,
In 1878, the same question arose in Schoff v. Laithe,
In Amoskeag Mfg. Co. v. Head,
The rule laid down in Schoff v. Laithe has been followed in the decisions of this court for the past twenty-six years, and must now be regarded as the law of the state. Amoskeag Mfg. Co. v. Head, supra; Hilliard v. Beattie,
Considered in the light of these decisions, the facts reported in this case do not disclose that injustice was done the defendants by the ruling on this point. For all that appears, they had every opportunity accorded them to answer any arguments by which they may have been surprised, or to offer suggestions which they may have inadvertently omitted. And the ruling of the court placing the burden of proof upon the plaintiff relieved them from sustaining the burden which they should have borne if they were entitled to the closing argument.
Nothing new is presented by the exception to the exclusion of the Brown affidavit. The reasons for its exclusion were sufficiently set forth in the opinion previously rendered. Seely v. Insurance Co.,
The Herschberger notice was properly excluded. While it met some of the requirements of the New York statute (N.Y. Laws 1892, c. 690, s. 92), it failed to comply with the provision that "the notice shall also state that unless such premium, . . . then due, shall be paid to the corporation, or to a duly appointed person authorized to collect such premium, by or before the day it falls due, the policy and all payments thereon will become forfeited and void except," etc. The notice simply informed the insured that his policy would expire the day the premium *343
became due, unless paid to H. I. Herschberger, agent., at 22 North Pearl Street, Albany, New York; whereas to work a forfeiture under the statute, it should have notified him that the policy would become forfeited and void unless the premium was paid, on or before the day it fell due, "to the corporation or to a duly appointed agent or person authorized to collect such premium." The notice not having contained all the information made essential by this provision of the statute, it is unnecessary for us to consider the plaintiff's contention that the words of the statute must be followed in framing notices in the ordinary cases of insurance contracts, for the reason that they are readily capable of being used in such cases and are unmistakable in meaning. Phelan v. Insurance Co.,
In the course of his argument counsel for the plaintiff said: "I might say a thing here which is common sense, and that is all evidence is anyway. If Mrs. Seely knew that policy was void by non-payment of the premium on the twenty-fifth of February, she wouldn't probably come into court here and contest it. If a person knows that their claim isn't well founded, — that they have got no claim, — I submit to you they wouldn't ordinarily come in here and make a claim for it." To these contentions as matter of argument the defendants excepted. No reference was made to the alleged error in the charge.
Whether from facts in proof a particular inference can be drawn, is a question of law. Mitchell v. Railroad,
The other exceptions to the argument of counsel do not require extended consideration. There was evidence that the secretary of the company, Mr. Gifford, had something to do with the Seely policy since he signed it, though he had nothing to do with the notice. If the remark objected to could be properly understood as including Gifford as one of the parties to the making and mailing of the notice, it does not appear to have been more than an inadvertent misstatement of an immaterial matter of testimony which the jury had heard. The reference to the fact that the case was interesting to the plaintiff, though dry to others, does not appear to have been intended to mislead the jury and improperly invoke their sympathy in such a manner as to require the verdict to be set aside. Gilman v. Laconia,
Exceptions overruled.
WALKER and YOUNG, JJ., did not sit: the others concurred[.] *345