Allen v. D'Ercole Const. Co., s. 260-A-263-A
| Decision Date | 25 July 1968 |
| Docket Number | Nos. 260-A-263-A,s. 260-A-263-A |
| Citation | 244 A.2d 864,104 R.I. 362 |
| Parties | Robert W. ALLEN v. D'ERCOLE CONSTRUCTION CO., Inc. Helen E. ALLEN v. D'ERCOLE CONSTRUCTION CO., Inc. Robert W. ALLEN v. Angelo A. D'ERCOLE. Helen E. ALLEN v. Angelo A. D'ERCOLE. |
| Court | Rhode Island Supreme Court |
These four actions of trespass on the case for negligence were brought by a husband and wife. Although commenced prior to the adoption by the superior court of its new rules of civil procedure, the cases were tried subsequent to their effective date. The wife seeks damages for personal injuries sustained as a result of an alleged collision between a motor vehicle owned by her husband and operated by her and one belonging to the corporate defendant and operated by its employee, the individual defendant. The husband sues for property and consequential damages. All the cases were consolidated and were tried to a judge and jury in the superior court. The jury returned a general verdict for each defendant, and even though they did not reach unanimous agreement on a special interrogatory, judgment was entered for each defendant. Plaintiffs now appeal and urge that the trial justice should not have entered judgments against them without first resubmitting the cases to the jury for further consideration, that he should have granted their motions for new trials, and that he also erred in ruling on evidentiary questions and in refusing to grant their requests to charge. Although we discuss only the case of the wife against the individual defendant, what we say in connection with it will be dispositive of all cases.
The facts may be briefly stated. On January 17, 1963, plaintiff attended a testimonial dinner at a country club in Cranston and left there for her home at about midnight. A freezing rain had made the roads slick and icy. She was proceeding on a narrow winding road at a speed of between 12 and 15 miles per hour when, as she came to a curve in the road, her car went into a slight slide. She recovered from that skid and about 200 feet further along the road she testified that she felt '* * * this tremendous push that came from behind and sent the car, kept pushing the car, and it accelerated in speed, and it sent, it just, it seemed to go in all directions * * * the car just went diagonally across, bumped along, and slammed into a tree.'
The defendant's story differs only as it relates to the impact between the two vehicles. He was driving behind plaintiff and proceeding at about the same rate of speed. As the rounded the curve, he observed that she was skidding and that she was '* * * going from left to right and it appeared as though the car was completely out of control.' He applied his brakes, but to no avail. He went into a skid and struck plaintiff's automobile in the rear, but not until after it had struck the tree.
At the close of the testimony, the trial justice charged the jury on the law, and then, in submitting the case, further instructed them not only to return a general verdict, but to answer as well the interrogatory: 'Did the vehicle, which Mrs. Allen was operating, hit the tree before being struck by the defendants' vehicle?' It was submitted pursuant to rule 49(b) of the superior court rules of civil procedure which reads:
The jury then retired to deliberate and after being out approximately three hours advised the trial justice that they had reached a general verdict and inquired whether it was necessary that they '* * * answer the defendant's interrogatory Yes or No?' After advising counsel of the inquiry, the trial justice directed them to 'Answer each Yes or No.' About 15 minutes later, they returned a general verdict for defendant, and also reported a disagreement on the interrogatory, ten jurors answering the question affirmatively and two negatively. The trial justice thereupon stated that he did not find the answer to the interrogatory inconsistent with the general verdict and then ordered judgment to enter for defendant.
At the trial, when the jury returned their general verdict and reported on their inability to agree on an answer to the interrogatory, plaintiff did not move to resubmit the case for further consideration. Neither did she object to entry of judgment against her. Now, however, she argues that, faced with inconsistent findings, the trial justice should not have summarily ordered judgment to enter, but should instead either then and there have returned the case to the jury for further consideration, or thereafter granted her motion for a new trial.
The defendant argues, and with considerable merit, that plaintiff waived her right to challenge on the ground of inconsistency by failing either to make timely objection to the entry of the judgment or to move promptly for a resubmission when the jury reported their inability to agree on an answer to the interrogatory. Employers Casualty Co. v. Dupaquier, 5 Cir., 338 F.2d 336.
Rather than decide the case on the waiver issue, however, we go to the more basic problem of what effect the jury's inability to reach agreement on an answer to the interrogatory had upon their general verdict. That problem is but one facet of the broader question of what should be done when there is an inconsistency between a general verdict and the answer to an interrogatory. We say that is but an aspect of the broad problem because for testing purposes the same inconsistency would exist irrespective of whether all the jurors had answered negatively or whether, as in this case, they divided on their answer.
An apparent inconsistency between the findings, however, is not enough, and it is only when the two are materially inconsistent, that is, when they cannot be harmonized, that the general verdict will not support a judgment. Safeway Stores, Inc. v. Dial, 5 Cir., 311 F.2d 595; R.B. Company v. Aetna Ins. Co., 5 Cir., 299 F.2d 753; McVey v. Phillips Petroleum Co., 5 Cir., 288 F.2d 53. Phrased differently, 'It is only where the answer to the interrogatory which is inconsistent with the verdict relates to a material factual issue which the jury must necessarily have decided in reaching its verdict that the verdict need give way.' 2B Barron & Holtzoff, Federal Practice & Procedure, § 1059, p. 360.
More precisely then, the problem is not whether the general and special findings are prima facie inconsistent, but whether they are so materially inconsistent that the general verdict must yield. In deciding whether there is such an inconsistency all reasonable attempts must be made to harmonize the answer to the ultimate question with that given to the testing question. The latter will control only where the '* * * conflict on a material question is beyond reconciliation on any reasonable theory consistent with the evidence and its fair inferences.' In the reconciliation process, moreover, '* * * every reasonable intendment in favor of the general verdict should be indulged in an effort to harmonize it with the answers.' 2B Barron & Holtzoff, Federal Practice & Procedure, § 1059, p. 358. See also 5 Moore's Federal Practice (2d ed.) 49.04, p. 2211; Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618; Theurer v. Holland Furnace Co., 10 Cir., 124 F.2d 494; Mayer v. Petzelt, 7 Cir., 311 F.2d 601; Bass v. Dehner, 10 Cir., 103 F.2d 28; Golden North Airways, Inc. v. Tanana Publishing Co., 218 F.2d 612, 15 Alaska 303; Waterman Steamship Corp. v. David, 5 Cir., 353 F.2d 660.
It is begging the question for plaintiff to argue that the trial justice would not have submitted the interrogatory to the jury unless its answer would effectively test the general verdict, and that therefore their failure to agree on an answer was necessarily equivalent to a material inconsistency. That argument presupposes either unerring judgment by trial justices in the submission of interrogatories or a rule of law that an inconsistency between the answer to an interrogatory erroneously submitted and a general verdict must of necessity be deemed material. Such a supposition is untenable both factually and legally. While the rule may be that an interrogatory which does not necessarily test the general verdict should not be submitted, an original error in submission will not excuse the trial justice from the obligation of reexamining, if there be an apparent inconsistency in findings, in an attempt to reconcile and to determine materiality. 2B Barron & Holtzoff, Federal Practice & Procedure, supra, at 360-61.
In this case the trial justice when he submitted the interrogatory said that it went '* * * to one real vital issue of fact in this case.' He concluded otherwise, however, after the jury reported their disagreement on the special interrogatory. Then, his thinking was that there could have been '* * * disagreement among the jury as to the exact...
To continue reading
Request your trial
-
Com. v. Leaster
...774; National Labor Relations Bd. v. G. W. Thomas Drayage & Rigging Co., Inc., 206 F.2d 857, 860 (9th Cir.); Allen v. D'Ercole Constr. Co., Inc., 104 R.I. 362, 369, 244 A.2d 864; Leach and Liacos, Massachusetts Evidence, p. 184; Wigmore, Evidence (3d ed.) § 3. The in-court identifications. ......
-
State v. Jalette
...State v. Palmigiano, 112 R.I. 348, 309 A.2d 855 (1973); State v. Vaccaro, 111 R.I. 59, 298 A.2d 788 (1973); Allen v. D'Ercole Construction Co., 104 R.I. 362, 244 A.2d 864 (1968). It is obvious from the record that the testimony of the mother and the officer was being offered for the purpose......
-
State v. Bowden
...if offered as credible testimonial assertions, would have been rejected as obnoxious to the hearsay rule. Allen v. D'Ercole Constr. Co., 104 R.I. 362, 369-370, 244 A.2d 864, 869 (1968); State v. Merola, 80 R.I. 176, 179, 94 A.2d 426, 427-428 (1953). However, to avoid surprise and to provide......
-
Kelaghan v. Roberts, 79-64-A
...make any necessary corrections in his instructions. Johnson v. Palange, R.I., 406 A.2d 360, 366 (1979); Allen v. D'Ercole Construction Co., 104 R.I. 362, 371-72, 244 A.2d 864, 870 (1968). The objection raised by counsel must be specific enough to focus the trial justice's attention on the p......