Isabelle v. Proctor Hospital

• Decision Date: 04 February 1975
• Docket Number: No. 104-74,104-74
• Citation: 133 Vt. 200,333 A.2d 118
• Court: Vermont Supreme Court
• Parties: Gene ISABELLE and St. Elmo Ferrara, Trustee, v. PROCTOR HOSPITAL and Dr. William A. O'Rourke, Jr.

Page 118

333 A.2d 118

133 Vt. 200

Gene ISABELLE and St. Elmo Ferrara, Trustee, v. PROCTOR HOSPITAL and Dr. William A. O'Rourke, Jr.

No. 104-74.

Supreme Court of Vermont.

Feb. 4, 1975.

Bloomer & Bloomer, Rutland, for plaintiffs.

Black & Plante, White River Junction, for Proctor Hospital.

Richard E. Davis Associates, Barre, for Dr. William A. O'Rourke, Jr.

Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

LARROW, Justice.

For the fourth time, this case is before this Court on a narrow issue, the alleged misconduct of a juror in expressing his opinion on the case to an outsider during the course of the trial. The initial appeal, taken before final judgment and based on four certified questions, was dismissed and the cause remanded for a factual determination of the matters involved. 129 Vt. 500, 282 A.2d 837 (1971). On remand, the trial court terminated the evidence prematurely and foreclosed the plaintiffs' proof. A second remand followed. 131 Vt. 1, 298 A.2d 818 (1972). Upon this second remand, the same court, in disregard of the mandate to rehear the matter, made only supplemental findings. A third remand resulted, with the suggestion that a different judge preside over further proceedings. 132 Vt. 243, 315 A.2d 241 (1974). The instant appeal results from the full hearing de novo, findings thereon, and an order denying plaintiffs' motions for new trial, or mistrial, as a result of alleged joror misconduct.

Without extensive recitation of the testimony and findings, the trial court, with a different presiding judge, found the juror's denial of any outside statements to be credible, and the testimony of three other witnesses to the contrary to be vague, inconsistent, not worthy of belief and less than credible. It is important in the posture of this case to note that the plaintiffs do not challenge the findings below as to the lack of credibility of the other three witnesses. They challenge only the findings that the alleged out-of-court statement was not made and that the juror's denial was credible. The asserted error is that the trial court abused its discretion in limiting their cross-examination of the juror to impeach his credibility.

We are confronted at the outset with the fact that no offer of proof was made to the trial court at the time cross-examination was allegedly limited, as contemplated by V.R.C.P. 43(c). Had this been done, the court undoubtedly would have taken and reported the evidence in full as therein required. In the absence of such an offer, indicating what testimony was expected to be elicited, error is not made to appear. Macauley v. Hyde, 114 Vt. 198, 42 A.2d 482 (1945); Reporter's Notes, V.R.C.P. 43(c).

We have in mind, however, the relative importance of this case, its complex history, and the fact that further appeals are probable. In the interest of substantial justice we have, despite V.R.C.P. 43(c), examined the record for prejudicial error. We find none.

Plaintiffs were properly cross-examining the juror in question at the time complained of. This was so because he had been ruled a hostile witness under V.R.C.P. 43(b), and also because he had been recalled to testify, for the third time, by the defendants. Plaintiffs assert in their brief they were preparing to show, by cross-examination, that according to work records of his employer and time records of the court itself, there were inconsistencies between his testimony and these records. Granting the right to bring out such inconsistencies, no error appears. The records in question had been admitted in evidence and, insofar as they were inconsistent with the juror's testimony, were already before the court. On his two prior appearances, once for plaintiffs and once for defendants, the juror had been cross-examined at length, without objection, about the work and time records. This examination terminated then only at plaintiffs' election.

On this set of facts, the latitude permitted by V.R.C.P. 43(h) had not only been exhausted, but exceeded. As pertinent, that Rule reads:

(h) Order of Evidence. In all trials, the plaintiff shall put in his whole case before resting, and shall not thereafter, except by permission of court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; . . ..

The evidence in question here was not rebutting; the only claim is that it would have been impeaching. It was...