Capezza v. Hertz Equipment Rental Corp.

• Decision Date: 24 March 1977
• Docket Number: No. 75-150-A,75-150-A
• Citation: 118 R.I. 1,371 A.2d 269
• Parties: Edward J. CAPEZZA et al. v. HERTZ EQUIPMENT RENTAL CORPORATION. ppeal.
• Court: Rhode Island Supreme Court

Page 269

371 A.2d 269

118 R.I. 1

Edward J. CAPEZZA et al. v. HERTZ EQUIPMENT RENTAL CORPORATION.

No. 75-150-Appeal.

Supreme Court of Rhode Island.

March 24, 1977.

[118 R.I. 9] Vincent A. Ragosta, Providence, for plaintiffs.

Keenan, Rice, Dolan, Reardon & Kiernan, Leonard A. Kiernan, Jr., James A. Currier, Providence, for defendant.

OPINION

DORIS, Justice.

This civil action for damages resulted from a rear end collision involving two motor vehicles which took place in the city of Cranston on November 3, 1971. The case was tried before a jury in Superior Court which returned a verdict for the defendant on June 18, 1974. From judgments subsequently entered, the plaintiffs appeal.

Edward J. Capezza, the driver of one vehicle, and Americo Romano, the passenger in that vehicle, alleged that they were stopped at a traffic light on Oaklawn Avenue in Cranston, when defendant's truck suddenly smashed into the vehicle which they were occupying. The plaintiffs filed a complaint on December 18, 1971, against the owner of the truck, Hertz Equipment Rental Corporation, in which they alleged they sustained injuries as a result of the collision for which they were seeking damages.

In answer to interrogatories, the operator of defendant's truck stated that he applied his brakes but that the truck failed to stop because of wet road conditions.

The plaintiffs testified in their own behalf and produced various medical witnesses. The defendant's counsel cross-examined plaintiffs and their medical witnesses, but presented no direct evidence. The defendant based its defense on plaintiffs' failure to establish any causation between the accident and their alleged injuries. The defendant relied on inconsistencies and contradictions in plaintiffs' evidence to show that plaintiffs had failed to sustain their burden of proof in establishing causation between the accident and the alleged injuries.

Mr. Capezza claimed that sometime after October 24, 1971, he contracted pneumonia and as a result did not work for a period of time but was about to return to his employment when the accident occurred. He presented no evidence that he had actually been treated for pneumonia nor did he offer any records to show that he had worked steadily up to the time he contracted pneumonia. Medical records revealed that he had been totally disabled since October 21, 1971, for an indefinite period. Mr Capezza also testified that he was totally incapacitated for work because of the accident from November 3, 1971 to October 14, 1972. However, a medical history taken 'from the patient' upon his admission to St. Joseph's Hospital in May of 1972, revealed that there had been no change in Capezza's work or job for the past year, that he had received a lot' of exercise, and that he had been working daily at the time of his admission. Capezza testified that the history had in fact been given by his wife who was mistaken.

Mr. Romano testified that he was in good physical condition at the time of the accident and that he was taking some time off before returning to work when he was injured in the accident of November 3, 1971. In sworn interrogatories for a suit in 1969, however, Romano stated that he was permanently injured as a result of a gunshot wound in his leg in 1966. He stated that his earning capacity for the year 1971 was reduced by $1,925 as a result of the gunshot wound. Romano also testified that he was completely recovered from a back injury sustained in 1960, yet his March 1972 hospital record indicated that he had suffered from back problems for at least ten years.

The plaintiffs' motion for a directed verdict on the issue of negligence was denied by the trial justice. The jury returned a verdict for defendant on each of plaintiffs' claims and judgments were entered on June 18, 1974. The plaintiffs' motion for a new trial was denied by the trial justice on September 24, 1974.

The plaintiffs first contend that the trial justice erred when he gave the jury a cautionary instruction on the collateral source rule. The plaintiffs, citing Bookbinder v. Rotondo, 109 R.I. 346, 356-57, 285 A.2d 387, 392-93 (1972), maintain that evidence on collateral income is allowed only for the limited purpose of showing that plaintiffs has lost no time from work and that the trial justice erred when he cautioned the jury that he was allowing evidence to be introduced in order to establish 'a motive for unnecessarily extending the period of his claimed disability.'

Here, the trial justice permitted defendant's counsel to cross-examine both plaintiffs and an attending physician concerning accident and health policies which each plaintiff carried.

We think that plaintiffs have not correctly interpreted Bookbinder v. Rotondo, supra, wherein we said:

'It does not follow, however, that the collateral source rule should be an absolute prohibition to the introduction of evidence that a plaintiff was paid by his employer during the period of alleged disability when such evidence is offered to show that plaintiff was not disabled or was in fact working or to affect the weight of his testimony that his injury caused his absence from work.' Bookbinder v. Rotondo, supra at 357, 285 A.2d at 393. (Emphasis added.)

In this case, the evidence regarding plaintiffs' collateral sources of income was introduced in order to affect the weight of plaintiffs' testimony as they attempted to establish causation between the alleged injuries and the accident of November 3, 1971. The admission of the evidence was properly admitted in accordance with the rule in Bookbinder. In addition, plaintiffs' failure to object to the trial justice's cautionary instruction at the time it was given to the jury precludes them from raising the question for the first time on appeal.

The plaintiffs next maintain that the trial justice erred in allowing plaintiffs to be cross-examined on two unrelated accidents in which plaintiffs were involved since they argue that defendant failed to connect...