Packard v. Whitten

• Decision Date: 24 February 1971
• Parties: Ruth PACKARD, Goldie Lourie, Joesph Lourie, Ada Tapper and Nathan Tapper, Plaintiffs-Appellees, v. Marjorie G. WHITTEN and the Coca-Cola Bottling Plants, Inc., Defendants-Appellants. FERN'S TAXI, INC., Defendant, v. Marjorie G. WHITTEN and the Coca-Cola Bottling Plants, Inc., Cross-Claimants-Appellants, and Fern's Taxi, Inc., Cross-Claimant-Appellee.
• Court: Maine Supreme Court

Page 169

274 A.2d 169

Ruth PACKARD, Goldie Lourie, Joesph Lourie, Ada Tapper and Nathan Tapper, Plaintiffs-Appellees, v. Marjorie G. WHITTEN and the Coca-Cola Bottling Plants, Inc.,

Defendants-Appellants.

FERN'S TAXI, INC., Defendant, v. Marjorie G. WHITTEN and the Coca-Cola Bottling Plants, Inc.,

Cross-Claimants-Appellants,

and

Fern's Taxi, Inc., Cross-Claimant-Appellee.

Supreme Judicial Court of Maine.

Feb. 24, 1971.

Linnell, Choate & Webber, by G. Curtis Webber, John R. Linnell, Auburn, and John A. Platz, Lewiston, for Ruth Packard.

Berman, Berman & Simmons, by Jack H. Simmons, Lewiston, for Goldie Lourie & Ada Tapper.

Mahoney, Desmond, Robinson & Mahoney, by Lawrence P. Mahoney, Portland, for Marjorie G. Whitten.

John G. Marshall, Marshall, Raymond & Beliveau, Lewiston, for Coca-Cola.

Ralph I. Lancaster, Jr., Rortland, for Fern's Taxi Inc.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY and WERNICK, JJ.

WEATHERBEE, Justice.

These appeals by two of three Defendants from judgments in personal injury actions present a number of issues as to procedure, sufficiency of evidence and the correctness of the award of damages and they direct our attention once more to the question of adoption of the concept of comparative contribution by joint tortfeasors.

Walnut Street in the City of Lewiston runs east and west and, in the area here in question, it is a through way in that traffic on the streets intersecting it is controlled by stop signs. Bartlett Street, running north and south, is one of these intersecting streets. Nadeau's store sits at the southeast corner of the intersection of these two streets. This is described as a 'busy' intersection. The streets are approximately 36 wide and two way traffic is permitted on both streets. A 5 wide sidewalk separates the Nadeau store from the edge of Walnut Street.

Sometime between 9 and 10 in the morning of August 3, 1967 a cab owned by Fern's Taxi, Inc. (Fern's) and driven by Fern's driver was transporting for hire three passengers, the Plaintiffs Mrs. Packard, Mrs. Tapper and Mrs. Lourie, westerly along Walnut Street. The weather was clear, the street surface dry. As the taxi neared the intersection, the Defendant Mrs. Whitten, alone in her automobile, was also approaching it on Bartlett Street headed north. At this moment a large delivery truck owned by Defendant Coca-Cola was stopped at the curb at the southerly side of Walnut Street, near the intersection, while the driver was making a delivery at Nadeau's store.

Mrs. Whitten testified that she stopped at the stop sign before entering Walnut Street and looked to her right but found that her view of Walnut (where the taxi was in fact approaching) was blocked by the Coca-Cola truck. She remained stopped a few moments wondering what to do and then 'edged out' into the intersection. As she did she looked again to her right where her changed position permitted a 'slanting' view between the truck and store and she saw no approaching vehicle. As she passed the rear of the truck she said she looked again and saw nothing. She then proceeded into the intersection at a speed of about 15-20 m. p. h. and her car was struck by the taxi when she was in the northeast quadrant of the intersection. She was looking straight ahead and didn't see the taxi until it hit her. (The only other witness to her conduct at this point said that she did not stop at the intersection but 'kept crawling out'.)

As he approached the intersection the driver of the taxi was travelling 20-25 m. p. h. He noticed that the Coca-Cola truck was completely blocking his view to his left down Bartlett Street. He continued into the intersection at a speed of 20-25 because 'that's through street'. He did not see Mrs. Whitten's car until it pulled out from behind the truck at which time he was 4 to 8 feet from the intersection. He 'hit his brakes' but it was so close to him that he was unable to stop before colliding with it, striking her car on the right rear door.

The three female Plaintiffs claim to have been injured by the impact. Mrs. Packard brought a complaint against Mrs. Whitten and Coca-Cola (No. 3841) and Mrs. Whitten impleaded Fern's. Mrs. Lourie and her husband sued all three Defendants (No. 3900) and Mrs. Tapper and her husband sued all three Defendants (No. 3901). Mrs. Packard then sued Fern's (No. 4037). All three Defendants cross-claimed against each other, adequately, they agree. The three actions (Nos. 3900, 3901 and 3841) were consolidated for trial. No 4037 was treated by the parties as though included in the order of consolidation. By agreement the actions of the Louries and the Tappers were tried on liability only while Mrs. Packard's case was heard on liability and damages. At trial it was agreed that the Defendants raised no issue as to the due care of the Plaintiffs.

In chambers the Presiding Justice and counsel discussed the manner in which the complicated issues should be submitted to the jury and the Justice stated that in case of verdicts for the Plaintiffs against either two or three Defendants his judgment would apportion the verdict equally. Counsel suggested to the Justice that if this matter came before the Law Court, it might arrive in a posture appropriate for the Court's examination of the concept of the theory of proportionate contribution. (See Tufts v. Hatch, Me., 248 A.2d 606 (1969)). It was pointed out that in the event of the adoption of this principle by the Law Court, an 'academic' finding by the jury of the comparative causal fault of each Defendant might make unnecessary a retrial of the cases. The Justice agreed and for this purpose he then submitted appropriate interrogatories from which the jury determined the comparative percentages of negligence.

The jury returned verdicts for all three Plaintiffs against Mrs. Whitten and Coca-Cola and for Defendant Fern's against all three Plaintiffs and also for Fern's on Mrs. Whitten's and Coca-Cola's cross-claims for contribution. Mrs. Packard was awarded damages against Mrs. Whitten and Coca-Cola in the amount of $90,000. The jury also made the 'academic' determination that Fern's was guilty of no negligence and that of the total Defendants' negligence 75% was attributable to Mrs. Whitten and 25% to Coca-Cola.

On March 19 judgments were entered in accordance with the jury verdicts. On Mrs. Packard's action, her judgment was against both Defendants Mrs. Whitten and Coca-Cola for $90,000 and costs.

None of the Plaintiffs appealed from the judgments in favor of Defendant Fern's. Both Defendant Mrs. Whitten and Defendant Coca-Cola filed notice of appeal. The appeals of Coca-Cola from the judgments of the Presiding Justice and from his denial of its motions for new trial were timely.

Three threshold questions appear:

1) Were Mrs. Whitten's appeals timely?

2) In view of the failure of the Plaintiffs to appeal the judgment in favor of Fern's, is the issue of Fern's contribution before the Court on appeal?

3) Are the judgments for the Louries and the Tappers properly before this Court on appeal?

First. Timeliness of Mrs. Whitten's appeals.

As we have noted, on March 19 a judgment was entered in favor of Plaintiff Mrs. Packard against Defendant Mrs. Whitten and Coca-Cola for $90,000. Her complaint against Fern's was ordered dismissed and no order was made on the cross-claims. This was the first of a confusing series of judgments the validity of which will determine the timeliness of Mrs. Whitten's appeals. From which should Mrs. Whitten's time for appeal run? Time periods for appeals, for motions, for new trials and for relief from a judgment (M.R.C.P. Rules 73(a), 59(b) and (e) and 60(b)) are tied to the time of entry of the judgment. (Future references to rules by number refer to the Maine Rules of Civil Procedure).

The verdict of the jury were special verdicts in the nature of answers to interrogatories. Rule 49(a). In such cases it becomes the duty of the Presiding Justice to direct judgments to be entered which are in accord with the jury's answers to the interrogatories. Rule 58; Field, McKusick and Wroth, Maine Civil Practice § 58.4. The Clerk is authorized to enter judgment only in cases where general verdicts were returned. Field, McKusick and Wroth, supra, § 58.3.

The March 19 judgment was entered by the Clerk and not ordered by the Justice and was thus invalid.

On April 9 judgments-similarly invalid-were entered by the Clerk in favor of Fern's against the Plaintiffs Tappers and Louries and the other two cross-claimants and for Mrs. Packard against Mrs. Whitten and Coca-Cola in the amount of $90,000.

On April 17 the Justice ordered judgment for Mrs. Packard against Mrs. Whitten and Coca-Cola and for Coca-Cola against Mrs. Whitten for contribution in accordance with the decree with which this judgment was filed. In this decree (labelled 'Facts') the Justice stated that he had concluded that he should reverse his position at trial and adopt the principle of comparative contribution and so he ordered judgment for Coca-Cola on its cross-claim for contribution in the amount of $67,500 plus 75% of the costs. This was the first validly ordered judgment for Mrs. Packard and on apportionment of contribution and Mrs. Whitten's time for appeal started running at this point-April 17-and Mrs. Whitten's appeal was not filed within 30 days from this date.

However, on May 9 the Justice filed amendments to these Findings of Fact and to this judgment in which he repeated the judgment for Coca-Cola against Mrs. Whitten for $67,500 plus 75% of the costs on its cross-claim and added a judgment for Mrs. Whitten against Coca-Cola for $22,500 on its cross-claim. On May 9 he also ordered filed an amended judgment for Fern's against the three Plaintiffs and against Mrs. Whitten and Coca-Cola on contribution. It is agreed that Mrs. Whitten's appeal, although filed on June 9, is (for reasons which do not concern us here) to be considered as filed within 30 days of May 9....