Episcopo v. Minch
|57 Del. 549,203 A.2d 273,7 Storey. 549
|, 57 Del. 549 Alexander J. EPISCOPO, Plaintiff Below, Appellant, v. Susan S. MINCH and Joslyn J. Williams, Defendants Below, Appellees.
|29 July 1964
|United States State Supreme Court of Delaware
Appeal from the Superior Court in and for New Castle County.
David B. Coxe, Jr., and Emmett J. Conte, Jr., Wilmington, for appellant.
H. James Conaway, Jr., and Bruce M. Stargatt, of Morford, Young & Conaway, Wilmington, for appellees.
This is an appeal from an order of the Superior Court entering judgment for defendant notwithstanding a verdict for plaintiff in the amount of $20,000.00.
Initially, we dispose of defendant's motion to dismiss the appeal on the ground that the Notice of Appeal violates Rule 5(4) of this Court, Del.C.Ann., requiring that a Notice of Appeal 'shall designate the decree, judgment, or order, or part thereof, sought to be reviewed.' The Notice of Appeal before us is as follows:
'Notice is given that the Plaintiff Below-Appellant, Alexander J. Episcopo, appeals from the order of the Superior Court of the State of Delaware in and for New Castle County, A.D. 1963, in Civil Action No. 1406, 1960.'
Citing Trowell v. Diamond Supply Co., 8 Terry 422, 91 A.2d 797, defendant argues the Notice of Appeal is defective because it does not mention the date of the order appealed from, nor does it describe the order appealed from.
It appears to us, however, that to all practical purposes the plaintiff of necessity could appeal only from the final order of the Superior Court dated November 25, 1963 entering final judgment for defendant. Indeed, defendant admits that she so understood plaintiff's intention.
We think that appeals as well as trials should, where possible and where the other side has not been prejudiced, be decided on the merits and not upon nice technicalities of practice. Since the defendant, in our opinion, has been put upon adequate notice of the nature of the appeal, and since as a practical matter the only appealable matter was the final judgment below, we deny the motion to dismiss. Cf. Bellanca Corp. v. Bellanca, 3 Storey 56, 164 A.2d 589, and Maher v. Voss, 9 Terry 45, 98 A.2d 499.
The action is one for personal injuries resulting from an accident occurring at the intersection of Scott and Fifth Streets in Wilmington. The questions presented by this appeal to not involve consideration by us of the circumstances leading up to the accident. It is obvious that by its verdict the jury resolved the issue of negligence in favor of the plaintiff.
The basic question before us is whether or not the court below was correct in granting judgment N. O. V. on the ground that plaintiff had failed by a preponderance of the evidence to prove that his injury was the proximate result of the defendant's negligence.
The facts concerning this are that the accident resulted in very slight damages to the vehicles involved and no apparent personal injury to cither plaintiff or defendant. Almost immediately after the accident, however, plaintiff collapsed and was taken to a hospital where he endured prolonged hospitalization and thereafter a longer period of treatment during which he was a semi-invalid.
The medical evidence offered by plaintiff was to the effect that at the time of the accident, and long prior thereto, he had an aneurysm of one of the blood vessels of his brain. This is a congenital weakness of the vessel which makes it prone to rupture at some time. This rupture may be caused by a rise in blood pressure. Based upon what he had been told, plaintiff's medical witness gave as his opinion that the anger of the plaintiff occurring immediately after the accident caused a rise in his blood pressure which, in turn, caused the rupture of his aneurysm.
On the subject of his anger, plaintiff testified, however, on cross-examination that he was neither disturbed nor angered by the fact that he had been in an accident. It was this testimony which led the trial judge to conclude that there was no evidence produced upon the direct cause of plaintiff's injury and led to the entry of judgment N. O. V.
It appears from the record, however, that the doctor testifying for the plaintiff stated that upon the basis of his examination of plaintiff and his talk with the police officers investigating the accident, he assumed that plaintiff was angry at the scene of the accident. It is of course obvious that this information came to the police officers through their investigation of the accident and was probably hearsay, since possibly plaintiff had collapsed prior to their arrival on the scene, but nevertheless it does give some basis for the opinion of the doctor.
Plaintiff argues that the entry of judgment N. O. V. was error as a matter of law because the ground upon which judgment N. O. V. was granted had not first been suggested to the court by a motion for a directed verdict prior to submission of the case to the jury.
Procedure in the Superior Court as to motions for directed verdicts at the close of the evidence and as to motions for judgment notwithstanding a verdict, are governed by Rule 50 of the Superior Court, Del.C.Ann., which is as follows:
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Di's, Inc. v. McKinney
...view" that, where possible and where there is no prejudice, appeals should not be dismissed on technicalities. In Episcopo v. Minch, Del.Supr., 203 A.2d 273, 275 (1964), this Court denied a motion to dismiss an appeal where the notice of appeal failed to identify the date or the nature of t......
State Personnel Commission v. Howard
...Appellate Procedure Rule 3(c); California Appellate Rule 1. The modern view has been adopted in Delaware. In Episcopo v. Minch, Del.Supr., 7 Storey. 549, 203 A.2d 273, 275 (1964) this Court, confronted with a petition to dismiss an appeal for failure to state the order and judgment appealed......
Preston v. Board of Adjustment
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