Martin v. Estrella

• Decision Date: 12 June 1970
• Docket Number: No. 854-A,854-A
• Citation: 107 R.I. 247,266 A.2d 41
• Parties: Manuel MARTIN v. Arther B. ESTRELLA. ppeal.
• Court: Rhode Island Supreme Court

Page 41

266 A.2d 41

107 R.I. 247

Manuel MARTIN v. Arther B. ESTRELLA.

No. 854-Appeal.

Supreme Court of Rhode Island.

June 12, 1970.

John Quattrocchi, Jr., Providence, for plaintiff

Pearlman & Pearlman, Alan H. Pearlman, Providence, for defendant.

OPINION

KELLEHER, Justice.

This is a civil action for assault and battery wherein a Superior Court jury returned a verdict for the plaintiff in the amount of $2,000. Thereafter, the trial justice granted the defendant's motion for a new trial unless the plaintiff remitted that portion of the verdict in excess of $1,500. Although the remittitur was filed, the defendant prosecuted this appeal. The plaintiff has filed a motion to dismiss the defendant's appeal. Before proceeding to a consideration of the defendant's appeal, it is necessary that we first consider the plaintiff's contention that the appeal should be dismissed because of the defendant's failure to comply with certain provisions of Super.R.Civ.P. relating to appeals.

The plaintiff concedes that defendant, subsequent to the entry of judgment in the Superior Court, duly filed his notice of appeal in conformity with the provisions of Rule 73, but he argues that defendant forfeited his right of appeal by his failure to deposit the cost of the transcript as required by Rule 78 and his neglect to obtain any extension of time for the transmittal of the record to this court as provided by Rule 78(e).

The plaintiff's argument would have merit if defendant's appeal was taken at a time when appellate review of a Superior Court civil action was by way of a prosecution of a bill of exceptions pursuant to provisions of G.L.1956, § 9-24-17. In past years, we have stated on innumerable occasions that compliance with the conditions set forth in the statute relative to the proper filing of transcripts and the payment of stenographic fees were conditions precedent to review in this court. The statute, we said, was jurisdictional and, absent compliance therewith, this court was without jurisdiction to entertain an appeal. The defendant's appeal, however, was initiated after the effective date of the Super.R.Civ.P.-January 10, 1966. The General Assembly has provided that effective January 10, 1966, there would be but one form of appellate review of a final judgment, decree, or order entered in any civil action-be it at law or in equity-in the Superior Court, and that would be by an appeal. This statute also authorized the court to establish the time limit for the taking of any such appeal. In addition, the legislature amended the statute pertaining to bills of exceptions by stating that bills of exceptions were to provide a vehicle of appeal solely for criminal cases. See §§ 9-24-1 and 9-24-17, as amended by R.L.1965, chap. 55, § 41.

Rule 73(a) provides that an appeal must be taken by filing a notice of appeal with the clerk of the Superior Court within 20 days from the entry of judgment. The rule then goes on to state that the failure of an appellant to take any further steps to secure review will not affect the validity of his appeal, but that such failure is ground for dismissal by the Superior Court unless circumstances excuse the failure and justice demands that the appeal be heard. It is obvious that with the advent of the new rules and the amendment of § 9-24-17 a litigant will not be deprived, ipso facto, of his appellate remedy because of his failure to comply with some of the procedures required by the rules once the claim of appeal has been timely filed. Rule 75(e) requires that the record on appeal, including the transcript, be forwarded to the Supreme Court within 60 days after the filing of the notice of the appeal unless the time is extended by an order of the Superior Court under Rule 75(g). Any of the time periods set forth in Rule 75 may be further extended by virtue of the terms of Rule 6 (b) even if a previous extension of time has expired provided that the movant's failure to act was due to excusable neglect. Such an enlargement is discretionary with the Superior Court, and any grant thereof presupposes a valid excuse for the appellant's tardiness particularly if an enlargement of time is sought after the original time period or its extension has expired. 1 Kent, R.I.Civ.Prac., § 75.1, at 530. The Superior Court's action in granting or denying an extension because of a litigant's failure to take the necessary steps to implement his appeal is subject to review by this court by way of appeal.

A motion filed in this court to dismiss a Superior Court appeal is no longer the way to challenge an appellant's failure to abide by the postappeal procedures enumerated in the rules. The record shows that in the Superior Court plaintiff filed two separate motions to dismiss this appeal because of defendant's failure to comply with various provisions of Rule 75 and Rule 78. The first motion was denied on April 24, 1969. The second motion was denied on September 27, 1969. On the same date, the Superior Court clerk certified the record to this court. This certification was premature in that plaintiff still had 20 days to file his claim of appeal from the denial of his motion to dismiss. However, plaintiff did on September 29, 1969, file a claim of appeal which was duly transmitted to this court. The appeal is in the papers of the case and shall be considered as having been properly filed notwithstanding the clerk's premature certification. The plaintiff, however, has failed ¹ to furnish us with a transcript of the hearing held in the Superior Court on his motion to dismiss. There is nothing before us which shows that the trial court's denial of plaintiff's motion amounted to an abuse of discretion. Accordingly, plaintiff's appeal and his motion to dismiss are denied and dismissed.

The litigants are first cousins. They live across the street from each other. There is a past history of a family feud. The testimony relating to the alleged assault is in irreconcilable conflict. In the very early morning hours of May 5, 1962, plaintiff drove his car into a parking lot alongside his home. He testified that defendant suddenly appeared at the car window, grabbed him in a menacing manner and began to abuse and curse plaintiff. The plaintiff said that he left the car and his cousin struck him twice. Each blow caused him to fall. After the second fall, as plaintiff was lying on the ground, defendant kicked him several times. The plaintiff lost consciousness and was taken to the hospital where he was treated for facial bruises, a broken nose and chipped teeth. The plaintiff said that the assault was unwarranted and unprovoked. The plaintiff's wife, son, and a neighbor each witnessed some facet of the incident, and all three corroborated plaintiff's version of what had taken place.

The defendant, while conceding that he had struck plaintiff, denied kicking him. He contended that at all times he was acting solely to protect himself. Estrella told the court and jury that sometime earlier Martin had assaulted his father and that when he met Martin in the parking lot, plaintiff threatened to do the same thing to him as he had done to his father. On each occasion when defendant struck plaintiff, defendant testified that plaintiff had raised his hands as if he were going to strike defendant. If defendant is to be believed, he simply beat his cousin to the punch. The defendant presented a witness who substantiated his version of the altercation.

The law of self-defense proclaims that a person who reasonably believes that he is in imminent danger of harm at the hands of another may defend himself. He does not have to wait for the first blow to land. However, if such person strikes first, he may use only such force as is reasonably necessary for his own protection. The permissible degree of force used in self-defense depends on that which is necessary, under all the circumstances, to prevent an impending injury. Hanauer v. Coscia, 157 Conn. 49, 244 A.2d 611. A person is to be held accountable if he uses excessive force in resisting an assault. State v. Sherman, 16 R.I. 631, 18 A. 1040. If excessive force is used, a defendant may not excuse his conduct under the plea of self-defense. While in Narell v. Sasso, 76 R.I. 483, 72 A.2d 432, we stated that a trial justice should caution a jury to take into consideration the surrounding circumstances when determining whether or not a party who claims he acted in self-defense has exhibited excessive force, we also declared that there was no necessity for the trial court to particularize each and every circumstance relating to an assault since a general reference thereto was sufficient.

In his charge to the jury, the trial justice remarked that if defendant, at the time he met plaintiff in the parking lot reasonably believed that plaintiff was about to do him bodily harm, defendant could strike the first blow, but that there was a limit to this right. At this point in his charge the trial justice alluded to the corridor outside the courtroom and said:

'If a man pushes you out in the corridor, maybe he is wrong, it may be a battery; you just can't turn around and lay him flat. That isn't law and that isn't common sense. If a man threatens you in some way or other, you are entitled in self defense to use the amount of force that's reasonably necessary to protect yourself.'

The trial justice then went on to point out to the jury that if they believed that plaintiff was the aggressor and defendant was in fear of bodily harm, defendant had the right to use reasonable force in defending himself.

The defendant complains that the court's example of the corridor pushand-punch episode was erroneous because it failed to take into consideration the admitted fact that some two years prior to the incident in the parking lot plaintiff had assaulted defendant's father. When a defendant has pleaded self-defense, he may introduce evidence of the plaintiff's reputation for violent behavior for...