Cooper v. Johnson

• Decision Date: 07 May 1968
• Docket Number: Nos. 167-A,s. 167-A
• Citation: 241 A.2d 613,104 R.I. 17
• Parties: Carol COOPER v. Richard N. JOHNSON. Carol COOPER v. Shirley A. JOHNSON. Clark A. RICHARDSON v. Shirley A. JOHNSON. Gale A. RICHARDSON v. Shirley A. JOHNSON. Gale A. RICHARDSON v. Richard N. JOHNSON. Clark A. RICHARDSON v. Richard N. JOHNSON. ppeal to 172-Appeal.
• Court: Rhode Island Supreme Court

Page 613

241 A.2d 613

104 R.I. 17

Carol COOPER v. Richard N. JOHNSON.

Carol COOPER v. Shirley A. JOHNSON.

Clark A. RICHARDSON v. Shirley A. JOHNSON.

Gale A. RICHARDSON v. Shirley A. JOHNSON.

Gale A. RICHARDSON v. Richard N. JOHNSON.

Clark A. RICHARDSON v. Richard N. JOHNSON.

Nos. 167-Appeal to 172-Appeal.

Supreme Court of Rhode Island.

May 7, 1968.

Gunning & LaFazia, Raymond A. LaFazia, Bruce M. Selya, Providence, for plaintiff Carol Cooper

Greenwald & Santaniello, Martin Greenwald, Providence, for plaintiffs Clark A. and Gale A. Richardson.

Jordan, Hanson & Curran, Kirk Hanson, Alan A. Ransom, Providence, for defendants, Shirley A. Johnson and Richard N. Johnson.

OPINION

PAOLINO, Justice.

These six actions of trespass on the case for negligence were brought by three plaintiffs against the defendants for personal injuries and were consolidated for trial in the superior court. Although commenced prior to the effective date of the new rules of civil procedure of the superior court, the cases were tried thereafter before a justice of that court sitting with a jury and resulted in verdicts for the plaintiffs in all cases. The trial justice thereupon entered a judgment on the verdict in each case. He subsequently denied the defendants' motions for new trials. The cases are before us on the defendant's appeal, in each case, from the judgment on the verdict.

The defendants contend: that the trial justice erred in his charge to the jury on the question of contributory negligence; that the trial justice erred in referring to the ad damna in his charge to the jury and in sending the jury back to correct its verdict; that the trial justice erred in permitting counsel for one of the plaintiffs to cross-examine two of the other plaintiffs; and that the trial justice erred in denying the defendants' motions for new trials.

The pertinent facts are as follows. On December 23, 1961, plaintiffs, Carol Cooper and the Richardsons, were enroute to a restaurant in a car driven by Edmund G. Cooper, Jr. Following them in a car were defendant Richard N. Johnson and his wife Charlene with Mr. Johnson driving. ¹ While on Valley Street, in the city of East Providence, the Cooper vehicle suddenly swerved to the left and collided with a utility pole causing severe injury to all plaintiff passengers.

The evidence relating to the cause of the accident is conflicting. The evidence presented by plaintiffs is in substance that the Johnson car attempted to pass the Cooper car on the right and thereby caused the Cooper car to strike a pole on the left-hand side of the road. The defendants deny plaintiffs' version and presented evidence to show that the cause of the accident was an automobile stopped in the driving lane of the highway which defendants claim caused the operator of the Cooper car to suddenly swerve into the telephone pole. We shall discuss the evidence in more detail as we consider the issues raised by defendants' appeals.

The defendants have briefed and argued the grounds on which they base their appeals under four main points. The plaintiffs have replied in like manner. For convenience we shall treat the appeals similarly.

I

The defendants contend that the trial justice gave a confusing, misleading and contradictory charge on the issue of plaintiffs' contributory negligence and, in so doing, practically directed the jury to find a lack of contributory negligence on the part of plaintiffs. The trial justice charged the jury on this question as follows:

'Now what must the plaintiff prove by the fair preponderance of the evidence? First of all she must prove that she herself was in the exercise of due care. I don't think you are going to have too much of a problem on that point, for the simple reason that each one of these plaintiffs was a passenger and had nothing to do with the operation of the Cooper car, and whatever you may find as to the operation of the Cooper car, the three passengers had nothing to do with the operation of that, and even if you were to find that the Cooper driver was negligent, any negligence on his part cannot be imputed to the passengers, it doesn't carry over to the passengers, and that does not deprive them of their standing in their suit against a driver of another vehicle. But, the fact is, that in any negligence case, before the plaintiff can prevail, he or she must satisfy the jury that he, or she, was in the exercise of due care.'

At the trial, the defendants objected to the charge as follows:

'The defendant objects * * * to Your Honor instructing the jury * * * using the words-That all of the plaintiffs were passengers and had nothing to do with the Cooper car.' ²

The thrust of this objection is that the use of these words by the trial justice constituted an invasion of the jury's province on the question of contributory negligence. The defendants maintain that the trial justice virtually directed the jury to find for plaintiffs on this issue. We find no merit in defendants' contention. There is no evidence in this record to the effect that plaintiff passengers had any control over the driver of the vehicle in which they were riding. Nor is there any evidence in the record from which one could reasonably infer that plaintiff passengers had an opportunity to forewarn their driver of impending danger. Nor is there any other evidence in the record upon which the jury could reasonably base a finding that plaintiffs were not in the exercise of the due care required of them as passengers. Shine v. Wujick, 89 R.I. 22, 29, 150 A.2d 1, 4. In these circumstances, it was proper for the trial justice to stress to the jury that the issue of negligence rather than contributory negligence should be the focus of its attention. It is both the privilege and the duty of a trial justice to emphasize in his charge such issues as he deems most important providing that he misstates neither the law nor the evidence in so doing. Desautelle v. Nasonville Woolen Co., 28 R.I. 261, 66 A. 579.

II

Under this point defendants have briefed and argued two objections. The first is to the following reference to the ad damnum ³ in each case by the trial justice in his charge to the jury:

'Now the attorneys have mentioned the fact that there is what we call an ad damnum in each writ-that is the amount that the plaintiff is suing for. In the case of Carol Cooper it is fifty thousand dollars; in the case of Clark Richardson it is twenty-five thousand dollars; and in the case of Gail Richardson twelve thousand dollars. I mention that to you to tell you that those figures mean nothing, except as an outside limit beyond which the jury would not be expected to go.'

Notwithstanding plaintiffs' claim that defendants' objection was not made in accordance with the provisions of rule 51(b), and that it is therefore not properly before us, we shall assume for the purposes of this case that such provisions were complied with.

The defendants concede that it has been common practice in this state for the trial court to mention the ad damnum to the jury and to caution them as to its limiting effect. They also acknowledge that although the authorities in other jurisdictions are divided on this question, this court has approved such practice. In Revens v. Berth, R.I., 147 A. 751, at 752, the trial justice charged that, if the jury returned a verdict for the plaintiff, it could not allow a sum with interest exceeding the ad damnum. In passing upon said charge on appeal, this court said:

'* * * This is a correct statement of law, as it is elementary that a verdict cannot exceed the amount of the ad damnum. * * *'

The defendants argue, however, that in this instance the charge on the ad damna confused and misled the jury. In Grimes v. United Electric Rys., 58 R.I. 458, 467, 193 A. 740, 744, we indicated that an instruction as to the ad damnum which is stated in such a way as to suggest a verdict for the amount claimed is ground for reversal. In that case the trial justice charged the jury as follows:

'* * * 'The limit is twenty-five thousand dollars, and under that you can find any amount you want to, but that is the limit.' * * *'

In considering the validity of this charge, we held that:

'* * * Standing alone, this remark would be improper, but it does not so stand. It cannot be isolated from its context. It should be read in connection with the entire charge which precedes it, and especially in connection with the additional instructions given by the trial justice shortly thereafter, when he again referred to the question of damages and said, 'but bear in mind all the time that these injuries and these damages for which the plaintiff can recover must be attributable to being struck by this electric car.' * * *'

In the instant case, the trial justice's charge on the ad damna, when read in context, in no way suggests a verdict for the amount claimed. He was explicit in cautioning the jury as to the limiting effect of an ad damnum and in instructing the jury that plaintiffs were only entitled to damages proximately resulting from defendants' negligence. Absent a showing that defendants were prejudiced by the trial justice's reference to the ad damna we find no merit in the instant objection and accordingly overrule the same.

We come now to defendants' objection to the action of the trial justice in asking the jury to retire again after they announced their verdicts and in giving them further instructions at that point. Because we are convinced that there is no merit in this objection, we refrain from a lengthy discussion of this issue.

It appears from the transcript that when the foreman of the jury was first asked whether the jury had agreed upon a verdict and whether it found for the plaintiff or the defendant, he replied that it had agreed upon a verdict in favor of the plaintiff. He was then asked in what sum and he replied: 'The maximum sum that was told us by the judge.'...