O'Brien v. Waterman

• Court: Rhode Island Supreme Court
• Writing for the Court: ROBERTS
• Citation: O'Brien v. Waterman, 163 A.2d 31, 91 R.I. 374 (R.I. 1960)
• Decision Date: 28 July 1960
• Docket Number: Nos. 10111-10114,s. 10111-10114
• Parties: Marion O'BRIEN v. Gerald WATERMAN. Marion O'BRIEN v. Thomas WADE. Preston NILON, p. a. v. Thomas WADE. Preston NILON, p. a. v. Gerald WATERMAN. Ex.

Page 31

163 A.2d 31

91 R.I. 374

Marion O'BRIEN v. Gerald WATERMAN.

Marion O'BRIEN v. Thomas WADE.

Preston NILON, p. a. v. Thomas WADE.

Preston NILON, p. a. v. Gerald WATERMAN.

Ex. Nos. 10111-10114.

Supreme Court of Rhode Island.

July 28, 1960.

Albert Lisker, Milton Bernstein, Providence, for plaintiffs.

Francis V. Reynolds, Richard P. McMahon, Providence, for defendants.

ROBERTS, Justice.

These are four actions of trespass on the case for negligence. Two of these actions were brought by a minor to recover damages alleged to have been sustained while he was a passenger in an automobile owned by one defendant and operated by the other defendant, and two were brought by the mother of the minor against each said defendant to recover consequential damages. Hereinafter the plaintiff mother will be referred to as the mother and the minor plaintiff will be referred to as the son. The cases which were consolidated for trial by agreement were tried together by a justice of the superior court sitting with a jury. At the conclusion of the trial on June 30, 1959 the jury returned a verdict for the son against each defendant in the amount of $7,136 and for the mother against each defendant in the amount of $5,500.

The son thereafter moved for a new trial in each case brought by him on the ground that the damages awarded were inadequate, and asked that he be granted a new trial on the question of damages only subject to such additur as the court might order. The trial justice ordered a new trial in each case on the question of damages unless each defendant consented to an additur in the amount of $9,364. The additur was not consented to, and therefore a new trial was ordered in each case brought by the son on the issue of damages only.

The cases are before this court on the motion of the mother to dismiss the bill of exceptions in each case brought by her; on defendants' exceptions to the denial of their motion for the direction of a verdict and to certain evidentiary rulings of the court in all the cases; and further, with respect to the cases brought by the son, on defendants' exceptions to the granting of his motions for a new trial on the issue of damages only subject to defendants' consent to an additur.

We will first consider the mother's motion to dismiss the bill of exceptions filed by each defendant in the cases brought by her. It appears from the record that, pending a decision on the son's motions for a new trial in the cases brought by him, judgment for plaintiff on the verdict was entered in each of the cases brought by the mother, and execution thereafter issued. When the son's motions for a new trial in each case brought by him had been granted, defendants on July 24, 1959 filed notice of their intention to prosecute a bill of exceptions in each of the four cases. Thereafter, in this court the mother moved to dismiss the bill of exceptions filed by defendants in each case brought by her on the ground that the court was without jurisdiction to entertain the bills of exceptions, because defendants had failed to file notice of intention to prosecute such exceptions within the time required by the pertinent statute, General Laws 1956, § 9-24-17.

The pertinent provisions of that statute read in part: 'Any person or party who has taken exceptions in the superior court may prosecute a bill of exceptions to the supreme court by taking the following procedure: First. Within seven (7) days after verdict or notice of decision, but if a motion for a new trial has been made, then within seven (7) days after notice of decision thereon, he shall file in the office of the clerk of the superior court notice of his intention to prosecute a bill of exceptions to the supreme court * * *.' It is clear from the record here that notices of defendants' intention to prosecute a bill of exceptions in the cases brought by the mother were not filed within seven days after the verdict therein, but that such notices were filed within seven days after decision was made on the son's motions for a new trial in the cases brought by him.

It is the well-settled law of this state that the statutory provision for an appeal by way of a bill of exceptions is jurisdictional, Worthington v. Shewcov, R.I., 152 A.2d 91, and will be construed strictly. Frappier v. Frappier, 64 R.I. 54, 10 A.2d 340; Giguere v. Lapointe, 56 R.I. 475, 188 A. 521. In the opinion in the latter case we stated at page 477 of 56 R.I., at page 522 of 188 A: 'This court has uniformly held that if a litigant desires a review of his case in the appellate court, he must apply for it in the time and in the manner prescribed by the statutes, which are to be strictly construed.' Compliance with these rules requires us to hold that, there having been no motion for a new trial made in these cases, the filing therein of notice of defendants' intention to prosecute a bill of exceptions more than seven days after the verdict leaves this court without jurisdiction in the premises.

The consolidation of these cases with the other cases is without effect on this decision. It is true that under this statute the filing of a motion for a new trial in effect extends the time within which there may be a valid filing of notice of intention to prosecute a bill of exceptions in those particular cases. But the mere fact that there has been a consolidation for trial of the other cases, in which no motions for a new trial have been filed, with cases in which such motions are filed does not have the effect of extending that time in the cases in which the motions for a new trial were not made.

The effect of a consolidation of cases for trial is well settled in this state. In the case of Giguere v. Yellow Cab Co., 59 R.I. 248, 195 A. 214, this court held that consolidation for trial did not merge separate causes into one cause, but constituted only permission to try separate causes together in order to avoid unnecessary delay and expense in the administration of justice. In that case, concerning the effect of consolidation, we stated at page 251 of 59 R.I., at page 216 of 195 A.: 'The causes of action remain distinct throughout such a trial and every legal right is preserved to the respective parties as fully as if the cases had been tried separately.' Consolidation then does not ipso facto impair in any manner the legal rights of any of the parties to the actions so consolidated, and neither does it operate to expand or extend any of the legal rights of such parties. The right of a party in a consolidated case to invoke the jurisdiction of an appellate court remains the same after consolidation as before.

The defendants appear to rely upon the case of Sullivan v. John R. White, Inc., 34 R.I. 61, 82 A. 724, as sustaining their contention that the consolidation of the instant cases for trial with cases in which a motion for new trial was subsequently made had the effect of extending the time for filing a notice of intention to prosecute a bill of exceptions herein. We do not agree. The Sullivan case clearly stands for the proposition that, in a particular cause when a motion for a new trial is made, the filing of notice of an intention to prosecute a bill of exceptions in the same cause before the motion for a new trial is decided is premature and without effect. In the instant cases the time within which defendants were required to file notice of their intention to prosecute a bill of exceptions was not extended by the consolidation made here, and therefore the motions of the mother to dismiss for want of jurisdiction in each case must be granted.

We will therefore consider only those exceptions taken by defendants in the cases brought by the son. A motion in each case for a directed verdict was denied by the trial justice, and each defendant excepted thereto on the ground that there was no evidence in the record that defendant operator had been negligent in the operation of the automobile. The transcript reveals that the trial justice, in disposing of the motions of the parties for directed verdicts, stated that plaintiff had 'made out a prima facie case of negligence * * *.' This, in our opinion, was tantamount to finding that when the evidence was viewed in a light most favorable to plaintiff, it was susceptible of reasonable inferences that defendant operator was negligent and that on the basis of such inferences a jury could return a verdict for the plaintiff. In such a state of the evidence a verdict should not be directed. Goodwill Advertising Co. v. Elmwood Amusement Corp., 86 R.I. 6, 133 A.2d 644.

It could be reasonably inferred from the evidence, when viewed in the light most favorable to plaintiff, that defendant operator was driving the automobile involved along a narrow, winding, high-crowned road, with which he was unfamiliar, at night and at a speed of not less than thirty miles an hour; that the car entered a curve in the road that he had not observed; that in attempting to negotiate that curve he partially lost control of the car and left the paved portion of the road; and that upon observing that the car was about to collide with a tree, he attempted to swerve to his left to avoid the tree but was unsuccessful and the car hit the tree, continued on for about thirty feet, and struck another tree. It is our opinion that on such evidence the trial justice did not err in finding that negligent operation by defendant could be reasonably inferred and that a jury could return a verdict for plaintiff. The motions for the direction of a verdict were properly denied, and this exception in each case is overruled.

The defendants are pressing exceptions to two evidentiary rulings. One of these rulings excluded the proffered testimony of a physician that he had observed an odor of beer on the son's breath while attending him at a hospital shortly after the accident. The defendants contend that such testimony was properly admissible as an attack on plaintiff's credibility....