Opinion
No. 4796.
Argued January 5, 1960.
Decided January 27, 1960.
1. Where the plaintiffs' opening statement was insufficient to support a claim of causal negligence and their counsel was given several opportunities by the Trial Court to amend or enlarge such statement after defendant's counsel had moved for a nonsuit because of the insufficiency, it was not error to grant the motion for nonsuit and deny the plaintiffs a further opportunity to amend their opening statement.
ACTION OF CASE, to recover property damage ($292.50) to: the plaintiffs' motor vehicle allegedly caused by the defendant's mule jumping onto the plaintiffs' car on a public highway. At the close of the plaintiffs' opening statement before the jury, the defendant's motion for a nonsuit was granted subject to the plaintiffs' exception, which was reserved and transferred by Morris, J.
Omitting immaterial matters, the plaintiffs' opening statement to the jury was as follows:
"What we are going to show you today is the fact that the plaintiff Marguerite Scammon sitting here at the plaintiff's table here let her husband, Irving, take her car . . . and he was on his way home, it was about eleven-thirty in the evening and he was driving down the Winnicut Road towards Stratham center . . . He was driving along about thirty miles an hour and there were some patches of fog at that time of night and all of a sudden he sees some objects in front of him so he jammed on his brakes. He put the brakes on so that there was a squeal when the brakes had taken hold and he was able to stop short of these objects in the road. The objects turned out to be four mules and apparently one of the mules was a little upset about the fact that this car was braking to a stop and Mr. Scammon will tell you that this mule climbed up over the hood of the car and across the driver's side of the automobile and as a result of that naturally did some damage to this car . . . We will show that these mules had been pastured in Roby Jewell's pasture somewhere here abutting onto [Route] 101 and here is the little church here and Cadieux's furniture store and down here. Now these mules, mind you, went from this pasture over to a point approximately in here on the Winnicut Road. And there will be testimony that these mules had been put in the wrong pasture and they got out and were at this spot at about eleven-thirty when Mr. Scammon came along and suffered the damages to his car . . . ."
Russell H. McGuirk and Robert Shaw (Mr. Shaw orally), for the plaintiffs.
Sleeper Mullavey and Edward E. Williams (Mr. Williams orally), for the defendant.
At the close of the plaintiffs' opening statement to the jury the defendant moved for a nonsuit on the ground that there was no statement of negligence on the part of the defendant. Thereupon the following transpired at the bench:
"COURT: Do you wish to amend your opening statement?
"[Plaintiffs' counsel]: If the Court plans to grant the motion we would be glad to amend because there is no question but what we can amend it to make the allegation broad enough in that respect.
"COURT: Do you wish to amend?
"[Plaintiffs' counsel]: We don't want to unless you plan to grant the motion, we don't want to prejudice our case.
"COURT: For the record, do you wish to amend your opening statement?
"[Plaintiffs' counsel]: For the record, we don't care to but if you are planning to grant the motion —
"COURT: Mr. Foreman and members of the jury, we'll take a recess at this time."
Following further discussion in chambers the plaintiffs expressly stated that they were not relying upon res ipsa loquitur. The defendant renewed his motion for a nonsuit because the opening statement was "now complete" and that there was no statement indicating causal negligence on the part of the defendant. The Court thereupon granted the motion for a nonsuit. Finally the plaintiffs asked the Court to add something more by way of amendment to their opening which was denied.
The power of the Trial Court to grant a nonsuit upon the opening statement of plaintiffs' counsel has been sustained in this jurisdiction by cases early and recent. Hughes v. Railroad, 71 N.H. 279; Carr v. Company, 101 N.H. 84; Maxfield v. Maxfield, 102 N.H. 101. See Millar, Civil Procedure of the Trial Court in Historical Perspective, ch. 19, s. 2 (1952). Since the granting of a nonsuit on the opening statement of counsel is drastic procedural medicine, our cases have consistently held that the Trial Court must ascertain definitely if the opening statement embraces the entire proof. Cavanaugh v. Barnard, 83 N.H. 370, 373; Fasekis v. Company, 93 N.H. 468. See Burns, Preparation and Trial of a Tort Action in New Hampshire, 2 N.H. Bar J. 11, 23 (1959).
In the present case counsel was given several opportunities to amend or enlarge his opening statement after the defendant's counsel moved for a nonsuit on the ground of absence of any causal negligence. While the Trial Court has discretionary power to allow supplemental openings (Taylor v. Jewell, 98 N.H. 331) he is not obligated to give counsel unlimited opportunities in this respect. The plaintiffs' opening statement to the effect that the defendant's mules had been placed in the "wrong pasture" was not a sufficient statement of defendant's causal negligence to take the case to the jury. If the defendant had negligently placed the mules in an improperly fenced enclosure, there is little doubt that the plaintiffs would have a cause of action. Howland v. Cressy, 95 N.H. 205; anno. 59 A.L.R. (2d) 1328.
The plaintiffs' failure to indicate the causal negligence of the defendant after adequate opportunity to correct it, was sufficient ground for the Court to grant the nonsuit that it did. Anno. 129 A.L.R. 557.
Exception overruled.
All concurred.