English v. Myers
| Decision Date | 02 November 1982 |
| Docket Number | No. 486-81,486-81 |
| Citation | 142 Vt. 144,454 A.2d 251 |
| Court | Vermont Supreme Court |
| Parties | Claude W. ENGLISH v. Rodney MYERS, d/b/a Benway's North End Taxi and Peter Mulholland. |
James M. Farrell, Burlington, for plaintiff-appellee.
Frederick G. Cleveland and Gloria K. Rice of McKee, Giuliani & Cleveland, Montpelier, for defendants-appellants.
Before BILLINGS, HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.
LARROW, Associate Justice (Retired), Specially Assigned.
Plaintiff English was injured on the morning of July 24, 1976, when hit by a taxi while crossing Church Street in Burlington. He sued the conceded owner and employer, Rodney Myers d/b/a Benway's Taxi, and Peter Mulholland, the conceded employee and operator, for $15,000. This ad damnum was amended at trial to $300,000, and a $45,000 plaintiff's verdict resulted. Both defendants seasonably filed a motion for new trial or remittitur and, subsequent to its denial, have appealed.
Briefly stated, the claimed errors below are (1) excessive damages, (2) defects in the verdict and judgment, (3) failure to apportion damages between the two defendants, (4) refusal to permit an inquiry into possible juror misconduct, and (5) failure to give a requested charge relating to pedestrians crossing a street. We consider those claims in that order.
Amount of damages.
Viewed in the light most favorable to plaintiff, the evidence indicates that he was 66 years of age at the time of the accident, about five years before actual trial. He was a retired industrial assembler, who moved from Vermont to Florida in 1974. Visiting in Vermont, he was about to leave for Florida when the accident occurred. He was thrown by the impact some 10-15 feet through the air, landing on the pavement. After a brief "blackout," he was able to crawl to the curb. He was unable to walk without help, and was hospitalized two days. His left leg was badly swollen, he had bruises on both legs, with painful bruises and bumps on his left arm as well, and a small injury to his right knee. He had "aches and pains all over," and had to delay his Florida trip several weeks. More than four years after the accident, his left arm, shoulder and neck were still painful, as were his left leg and hip. His sleep was affected. Many of his normal activities had been "neglected" since the accident. No claim of permanent injury had medical support, and this issue was not submitted to the jury. Because of his retirement, no lost wages are involved. His ambulance and hospital expenses were just under $300.00. Much of his care was supplied by his wife, a retired registered nurse. He was unable to attend trial, and his deposition was used, as was that of his Florida doctor.
In ruling upon defendants' post-trial motion, the trial court indicated that in its judgment the verdict "was more than it ought to have been" but that it was unable to conclude that perverted judgment, accident, gross mistake, passion, prejudice or other misguidance was involved. This is, in our view, a succinct analysis of the point. Cf. Woodhouse v. Woodhouse, 99 Vt. 91, 157, 130 A. 758, 789 (1925). It correctly indicates the general rule that size of the verdict alone does not indicate passion or prejudice, and that absent such factors, we will not interfere with the trial court's discretion. Larmay v. VanEtten, 129 Vt. 368, 374, 278 A.2d 736, 740 (1971). The verdict was indeed somewhat high, but we cannot say that it was unconscionably so as a matter of law, particularly in light of the almost five years intervening between accident and verdict. No error appears with respect to this claim. We are in the field of unliquidated damages, where judgments may vary widely and yet be within permissible range. Neither the jury nor the court abused their discretion. The award is neither "grossly" nor "entirely" excessive, so as to warrant action by us. Sunday v. Stratton Corp., 136 Vt. 293, 309, 390 A.2d 398, 407 (1978).
Defects in the verdict and judgment.
Defendants brief a contention that the verdict and judgment below were so vague and confusing as to be void, requiring reversal and remand for a new trial. They base this claim upon the fact that the standard printed jury form which was employed used, without alteration, the word "defendant" in the singular, as did the judgment for the plaintiff which was subsequently entered. Several considerations militate against their contention.
In the first place, we have many times made clear that issues not raised below will not be considered for the first time on appeal. Pope v. Town of Windsor, 140 Vt. 283, 286, 438 A.2d 388, 390 (1981). The issue was not raised at the time the verdict was rendered, in the subsequent motion for new trial, or at any other time. It is, therefore, waived.
Beyond this, even if there were error of a magnitude more than clerical, which we do not believe, it would be harmless. It has been amply clear in this jurisdiction, since the careful review of the point by then Justice Hulburd in Daniels v. Parker, 119 Vt. 348, 126 A.2d 85 (1956), that under the doctrine of respondeat superior the master stands as surety for damages caused by the servant in the course of his employment, with coincidental rather than alternative liability. Joinder of the two as parties defendant is permitted and election of remedies has no application. This is, of course, subject to the prohibition against double recovery. The relationship was pleaded by the plaintiff and admitted in the pleadings of the defendants.
Moreover, counsel's present contention that there was a factual basis for holding the defendant employer independently of the doctrine of respondeat superior is without support in the record. It is also, we would point out, inconsistent with representation of both defendants by the same counsel. A lawyer should never represent in litigation multiple clients with differing interests. Code of Professional Responsibility, EC 5-15.
In this case, the interests of the two defendants are not shown to be diverse. As pointed out, the liability of the employer derives from the relationship and from the liability of the employee. True it is that there was testimony to the effect that the taxi involved in the accident had some carburetor trouble which interfered with the smoothness of its operation, and that the defendant employer, advised of this, had failed to take appropriate measures to remedy the condition. But the basis of recovery in this action was clearly the negligence of the defendant operator, Mulholland, in turning left into a pedestrian crossing and failing to see and avoid the plaintiff, who had completed about three-quarters of his crossing the intersecting street. Under the circumstances of this accident, we are unable to perceive any causative effect attributable to a malfunctioning carburetor, even if the malfunction were negligence on the part of the employer. The negligence here the basis of recovery was the total failure of the driver to observe, and his proceeding into a crosswalk for pedestrians in spite of such lack of observation.
The use of the word "defendant" in the singular in the verdict and judgment cannot be prejudicial to either defendant in any respect. Their liabilities to the plaintiff are on the same basis, and are coextensive in amount. They were either both liable, or both not liable. While we would urge future diligence in the preparation of judgments and verdicts, we are convinced that the error here is one of form only, and clerical in nature. We will make the necessary correction in our mandate.
Failure to apportion damages between defendants.
The defendants brief the proposition that the jury's verdict, as rendered, is fatally defective for failure to apportion damages between plaintiff and defendants, and for failure to apportion damages between the two defendants. Each such apportionment they claim to be required by 12 V.S.A. § 1036.
Again, the simple answer to these contentions is that they were...
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