I concur in the views of the majority except as they relate to the denial of the minor plaintiff's motion to reopen. The motion was addressed to the discretion of the Trial Court, and presented the question of what justice required. It was so considered by the Court. What justice requires is a question of fact, the decision of which, if supported by the record, is not subject to revision upon appeal. Jaques v. Chandler, 73 N.H. 376,381; Colburn v. Groton, 66 N.H. 151, 153; Dunklee v. Prior, 80 N.H. 270. In this case however the decision is not supported by the record. The evidence which the plaintiff sought leave to introduce concerned a vital issue, as to which no evidence had previously been offered, although it had appeared without dispute that examination shortly before trial showed a partial paralysis of the boy's face and no hearing in his right ear. Had evidence that this condition was permanent been seasonably presented, the plaintiff would have been entitled as matter of right to have it received. In view of its importance, it should have been received whenever offered at the trial, "unless offered at so late a time as to give the proponent an unfair advantage." Steinfield v. Monadnock Mills, 81 N.H. 152, 155. See also, Stone v. Boscawen Mills, 71 N.H. 288; 53 Am. Jur. 110.
The record contains nothing to show that any unfair advantage would have resulted from reopening the trial. No claim is made that the order of denial rested upon any consideration not disclosed by the record. The case differs from that of Vidal v. Errol, 86 N.H. 585, where the motion before the court was determined after informal and unrecorded proceedings. Here there is no occasion to indulge in presumptions. If the delay in offering the testimony was attributable to mistake or inefficiency on the part of counsel for the plaintiff, nevertheless, as an infant, the plaintiff was entitled to have his interests safeguarded by the Court (see Leazar v. Cota, 43 N.H. 81, 82), so far as possible in consistence with justice to the defendants. 43 C.J.S. 271, s. 105. Since the record does not support the finding that justice required denial of the motion, the verdict in the action on behalf of the minor should be set aside, and opportunity afforded to establish the full extent of the damage.
*Page 286JOHNSTON, J. concurred in this opinion.