Aetna Cas. & Sur. Co. v. Carter, 87-874.

• Decision Date: 08 November 1988
• Docket Number: No. 87-874.,87-874.
• Citation: 549 A.2d 1117
• Parties: AETNA CASUALTY & SURETY CO., Subrogee of Michael Berenbaum, Appellant, v. Wayne CARTER, Appellee.
• Court: D.C. Court of Appeals

Page 1117

549 A.2d 1117

AETNA CASUALTY & SURETY CO., Subrogee of Michael Berenbaum, Appellant, v. Wayne CARTER, Appellee.

No. 87-874.

District of Columbia Court of Appeals.

Submitted October 17, 1988.

Decided November 8, 1988.

Ronald M. Cohen, Arlington, Va., for appellant.

Coolidge N. McCants, Washington, D.C., for appellee.

Before NEWMAN and SCHWELB, Associate Judges, and PRYOR, Senior Judge.^*

I

SCHWELB, Associate Judge:

This is not a case which would bring joy to the hearts of those interested in the just, speedy and inexpensive determination of disputes over relatively small amounts of money. Cf. Super.Ct. Small Claims R. 1. It arose out of a minor automobile accident which occurred almost seven years ago. The expenses incurred in legal representation, judicial time, and associated activities far exceed the amount in controversy. In spite of this, the litigation is still not over, for we are compelled to remand it to the trial judge for further proceedings, although fortunately he need not start again from scratch.

The accident in question occurred on December 13, 1981. According to the plaintiff, Michael Berenbaum, who was the only witness at the bench trial¹ which took place five and a half years later, December 13 was a cold and icy day, and driving conditions were hazardous. Berenbaum testified that the other driver, Wayne Carter, ran a stop sign and struck his vehicle. Berenbaum's car was damaged in the amount of $1012.68. Aetna paid for all of the repairs except $200.00, the amount of Berenbaum's deductible. On January 12, 1983, Aetna and Berenbaum filed suit in the Civil Division of the Superior Court to recover their damages.² Carter filed a counterclaim, for $400.00, the precise contents of which are not discernible from the record on appeal.

On January 28, 1985, Carter and his counsel both failed to appear for trial. A default was entered, the counterclaim was dismissed, and the case was heard ex parte for proof of the plaintiffs' damages. The court entered judgment for Aetna in the amount of $812.68 and for Berenbaum in the amount of $200.00, together with interest and costs.

Subsequently, the default was vacated³ and the case was rescheduled for June 23, 1987. On that date, defense counsel appeared but the defendant did not, and the case was heard by Honorable George W. Mitchell.

Berenbaum, whose recollection of the accident was understandably hazy so long after it occurred, testified that Carter did not stop at the stop sign. He estimated his speed at twenty-five miles per hour and explained that

I wasn't going fast because you couldn't go fast that day. I was going adequate to make it up the hill and to keep a little momentum going.

He indicated that but for the snow or ice, neither driver would have had difficulty in stopping. In response to a question by the court, Berenbaum stated that

but for the ice, I believe that I could either have stopped my vehicle or swung my vehicle around his vehicle, but for these conditions.

Judge Mitchell complimented Berenbaum for "your frankness and your straightforwardness on this matter."

After hearing argument of counsel, Judge Mitchell, stressing Berenbaum's view that both drivers could have stopped but for the icy conditions, ruled as follows:

We see these parties under those circumstances equally responsible for this accident, and we find that the plaintiff was contributorily negligent in that he was going faster than he should have been going under the icy conditions, and on his admitted testimony that he was traveling at twenty-five miles an hour when there was ice and snow on the ground.

We therefore conclude that the plaintiff in this particular instance has not carried the burden of convincing this court by a preponderance of the evidence that he did not in fact contribute to the accident himself by not maintaining a reasonable speed so that he could have stopped and avoided this accident.

He in effect says that he saw the car and but for the ice and a fortiori but for the fact that he was going twenty-five miles an hour, but for that, the accident would have been avoided.

The parties were equally responsible. The court therefore considers—finds that the plaintiff should not recover under these circumstances. Those are the findings of the court.

(Emphasis added.)

A few weeks after the trial, Judge Mitchell followed up his oral decision with brief written Findings of Fact, Conclusions of Law and Order. Again finding that "plaintiff travelled at an unreasonable speed considering the road conditions," the judge concluded that Berenbaum's excessive speed contributed heavily to the accident and that he was therefore barred from recovery. The written order did not dis close how the judge had allocated the bur den of proof with respect to contributory negligence.⁴ This appeal followed.⁵

II

On appeal, Aetna contends that the trial judge erred in finding that Berenbaum was contributorily negligent "when the defense of contributory negligence had never been raised or pleaded," and in finding that Berenbaum was travelling at an excessive speed. The defendant-appellee has not filed a brief in opposition.

Aetna first relies on Super.Ct.Civ.R. 8(c), which provides that contributory negligence is among the defenses which the defendant must affirmatively set forth in his pleadings. Aetna claims that Carter did not plead this defense. The record on appeal does not contain Carter's pleadings in the trial court, so we are unable to determine whether, as Aetna claims, Carter failed to allege contributory negligence. An appellant is, of course, obliged to present us with a record...