Berkowitz v. Simone
| Decision Date | 14 November 1963 |
| Docket Number | No. 10439,10439 |
| Citation | 195 A.2d 59,97 R.I. 5 |
| Parties | Louis BERKOWITZ v. Louise A. SIMONE. Ex. |
| Court | Rhode Island Supreme Court |
Kirshenbaum & Kirshenbaum, William Young Chaika, Providence, for plaintiff.
Pontarelli & Berberian, Aram K. Berberian, Providence, for defendant.
This is an action of trespass on the case to recover consequential damages for the negligence of the defendant in keeping a vicious dog which bit the plaintiff's three-year-old daughter. At the conclusion of the evidence the trial justice denied the defendant's motion for a directed verdict and thereafter the jury returned a verdict for the plaintiff in the sum of $301.20. The case is here on the defendant's bill of exceptions to the denial of her motions for a directed verdict and a new trial, to certain portions of the charge, and to certain evidentiary and other rulings of the trial justice.
This case was tried together with that of plaintiff's daughter Carmen, the latter being hereinafter referred to as the 'companion case.' After a verdict for the daughter in the companion case defendant prosecuted her bill of exceptions therein to this court. We overruled all of her exceptions, denied her motion for a reargument and remitted the case to the superior court for entry of judgment on the verdict. See Berkowitz v. Simone, R.I., 188 A.2d 665, to which reference is made for a comprehensive discussion of the factual aspects of the instant case.
Where a principal and a derivative suit have been tried together before a jury in the superior court, the preferred and customary practice absent unusual circumstances is for bills of exceptions in both cases to be argued in this court at the same time. No such unusual circumstance warranting separate prosecutions of bills of exceptions in this and the companion case have been called to our attention nor from our examination of the record herein have we found any. Separate presentation of two such cases before us is wasteful of the court's time, unduly impinges on the time of members of the bar, and we do not look with favor upon such a practice.
The defendant's exceptions numbered 1 and 2 have been waived by her. Her exceptions numbered 3, 4, 9, 10, 11 and 12 are either identical or substantially similar to the exceptions filed by her in the companion case and are overruled for the reasons therein set forth.
Under exception numbered 5 defendant contends that the trial justice committed prejudicial error in overruling her objection to the admission in evidence of 'Dr. Sexton's 'impression' in plaintiff's exhibit number 3.' Such exhibit is a bill of Dr. Richard P. Sexton in the amount of $85 and contains nothing as to any 'impression.' There was also read to the jury pursuant to the pre-trial order, a report of Dr. Sexton in which reference is made to his 'Impression.'
We are unable to determine from our examination of this exception whether it goes to exhibit number 3 or to the statement of Dr. Sexton. A party prosecuting a bill of exceptions to this court is required to state separately and clearly the exceptions relied upon. G.L. 1956, § 9-24-17 (Second). Exception numbered 5 does not meet the statutory test. For this reason as well as for those alluded to in our treatment of her exception to the denial by the trial justice of her motion for a new trial, exception numbered 5 is overruled.
The defendant's exception numbered 7 is to the ruling of the trial justice permitting plaintiff to reopen his case after argument of counsel in order to allow the presentation of evidence indicating that he was Carmen's father. Subsequent to the granting of this motion defendant moved the court to vacate its prior denial of her motion for a direction and to grant her motion for a directed verdict. The defendant's exception to the denial of the latter motion forms the basis of her exception numbered 8. A motion to reopen a case after the testimony is closed and after arguments of counsel are completed is addressed to the judicial discretion of the trial justice and absent an abuse thereof his action thereon will not be disturbed by us. Douglas Furniture Corp. v. Ehrlich, 91 R.I. 7, 160 A.2d 362; Levy v. Equitable Fire & Marine Ins. Co., 88 R.I. 252, 146 A.2d 231; Greene v. Rhode Island Co., 38 R.I. 17, 94 A. 869, L.R.A.1915F, 6; Lake v. Weaver, 20 R.I. 46, 37 A. 302; Case v. Dodge, 18 R.I. 661, 29 A. 785.
We find no clear showing of an abuse of discretion or improper exercise thereof in allowing plaintiff to reopen his case in order to remedy what was no more than a technical defect in the state of the evidence. Exception numbered 7 is therefore overruled. It necessarily follows that our conclusion is the same as to exception numbered 8.
The defendant also contends that the trial justice committed error in denying her motion for a directed verdict. Any technical deficiency in the evidence which might have required that a verdict be directed in defendant's favor was remedied by the evidence presented after the case had been reopened on plaintiff's motion. For the reasons given in the companion case as well as for those therein stated, defendant takes nothing by this exception and exception 6 is overruled.
We will now consider defendant's exception numbered 13 to the denial of her motion for a new trial. Insofar as such motion was denied on the ground that the verdict was against the law, the evidence and the weight...
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Russo v. G. W. Gooden, Inc.
...justice and that his decision thereon will not be disturbed by this court, unless clearly an abuse of such discretion. Berkowitz v. Simone, 97 R.I. 5, 195 A.2d 59; Douglas Furniture Corp. v. Ehrlich, 91 R.I. 7, 160 A.2d 362 and Levy v. Equitable Fire & Marine Ins. Co., 88 R.I. 252, 146 A.2d......